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same, though intimately connected with that home ward trade, and almost necessary to its existence; that it has been enforced where strong claim, not merely of convenience, but almost of necessity, excused it on behalf of the individual ; that it has been enforced where cargoes have been laden before the war, but where the parties have not used all possible diligence to countermand the voyage after the first notice of hostilities, and that it has been enforced not only against the subjects of the crown, but likewise against those of its allies in the war, upon the supposition that the rule was founded on a strong and universal principle, which allied states in war had a right to notice and apply mutually to each other's subjects. Indeed, it is the less necessary to produce these cases, because it is expressly laid down by Lord Mansfield that such is the maritime law of England."
The rigid interdiction of commercial intercourse between belligerents has, in England, been carried to the extent of prohibiting the remittance of supplies to a British colony, while it was under the temporary subjection of the enemy. Grenada, a British possession, had been seized by the French, but by the public enactments, both of France and Great Britain, the island was not considered to have entirely lost its national character—for French ordinances had been made regarding it, inconsistent with its being considered a strictly French possession; and it had been enacted by the British Parliament, for the expressed purpose of giving relief to the proprietors of estates there, that no goods of
· Gist. vs. Mason, 1 T. R. 86.
ions of courte
the produce of Grenada, on board of neutral ves. sels, going to neutral ports, should be liable to condemnation as prize.
Notwithstanding these legislative declarations, that the character of Grenada was not to be regarded as strictly hostile, and notwithstanding the express permission to export the productions of the island, a neutral vessel sent from England with goods to be imported into Grenada, was seized, as engaged in unlawful intercourse with the enemy, and condemned in the vice-admiralty court of Barbadoes. The sentence of condemnation was confirmed upon appeal to the privy council.
A similar strictness has been adopted, in the ap- Strictness of plication of the principle, by the courts of admir-rule by decisalty of the United States. An American citizen of the United had purchased goods in a British possession, prior to the commencement of hostilities between the two countries, and had deposited them on an island near the frontier. After the breaking out of hostilities, he chartered a vessel to proceed to the island and carry his merchandise to a port in the United States. On her return with the cargo, the vessel was captured, and vessel and cargo were condemned.
Upon the confirmation of the judgment of condemnation, on appeal to the Supreme Court, the entire recognition of the principle of commercial non-intercourse between belligerents is thus clearly expressed.
“Whatever relaxations of the strict rights of war have been established by the more mild and miti
The Bella Guidita, 1 Rob., 207. * The Rapid, 8 Cranch, 155.
gated practice of modern times, there has been none on this subject. The universal sense of nations has acknowledged the demoralizing effects that would
result from the admission of individual intercourse Necessity for between the states at war. The whole nation is the rigid en: embarked in one common bottom, and must be re;
conciled to one common fate. Every individual of the one nation, must acknowledge every individual of the other nation, as his own enemy, because he is the enemy of his country. It is no excuse for such trading with the enemy, that the property was purchased before the war-much less that the goods only, and not the purchase, existed before the war, in the enemy's country.”
In numerous other cases in the American courts the same principle has been invoked and applied with uniform strictness.
In the case of The Lord Wellington, 2 Gallison,
103, an American vessel received a cargo from on Penalty of violation of the board an enemy's ship, under the pretence of ran
som. After she had discharged her cargo, and upon her return voyage, she was seized and condemned as lawful prize of war, as having been engaged in unlawful commerce with the enemy.
In the case of The Alexander, 8 Cranch, 169, a ship, owned by citizens of the United States, was captured by the enemy, taken into the enemy's port, and there, upon the hearing of the libel, she was discharged, upon its being made to appear that she was sailing under an enemy's license. A cargo was then purchased and laden on board of her in the
The Lawrence, 1 Gallison, 470; The Alexander, ib., 532; The Mary, ib., 620; The Joseph, ib., 540; The Lord Wellington, 2 ib.,
enemy's country, and on her voyage home she was captured. She was condemned as having been engaged in an illicit trading with the enemy.
In the case of ships sent on errands of humanity Truce or cartel in time of war, called truce or cartel ships, the rule ships of commercial non-intercourse is enforced with peculiar sternness. The Venus was a British vessel, which had gone to Marseilles, under cartel, for the exchange of prisoners. While there, a cargo was laden on board; and on her voyage thence to Port Mahon, she was stranded and captured. Upon a full view of all the circumstances of the case, judg. ment of condemnation was passed against her by Lord Stowell. “The conduct of ships of this de scription,” he says, “cannot be too narrowly watched. The service on which they are sent is so highly important to the interests of humanity, that it is peculiarly incumbent upon all parties to take care that it should be conducted in such manner as not to become a subject of jealousy and distrust between the two nations."
Again, and in another case of a like character, Lord Stowell says: “ The employment to which the privilege of cartel is allowed, is of a very peculiar nature. It is a mode of intercourse between hostile nations, invented for the purpose of alleviating, in some degree, the calamities of war, by restoring to their liberty those individuals who may happen to have fallen into a state of captivity. It is the mutual exchange of prisoners of war, and therefore, properly speaking, it can have place between belligerents only.” “ It is not a question of gain, but one on which depends the recovery of the liberty of individuals who may happen to have become
prisoners of war; it is, therefore, a species of navigation which, on every consideration of humanity and policy, must be conducted with the most exact attention to the original purpose, and to the rules which have been built upon it; since, if such a mode of intercourse is broken off, it cannot but be followed by consequences extremely calamitous to individuals of both countries." “Cartel ships are subject to a double obligation to both countries, not to trade. To engage in trade may be disadvantageous to the enemy, or to their own country. Both are mutually engaged to permit no trade to be carried on under a fraudulent use of this intercourse. All trade must therefore be held to be prohibited, and it is not without the consent of both
governments, that vessels engaged in that service can be permitted to take in any goods whatever.”
If a ship be really and in good faith going as a cartel, on a voyage for the purpose of bringing pris. oners, she will be protected from condemnation, even although she is without a regular certificate of cartel; and this protection extends to the return voyage.
While the rule of prohibition of commercial intercourse between belligerents is applied with the utmost rigor to cartel ships, yet, in the interests of humanity, their employment for the legitimate purpose of cartel is encouraged and protected.
Contracts made for their equipment and supply are considered as contracts between friends, and
1 The Rose in Bloom, Dodson, 60; The Caroline Verhage, 6 Rob., 336.
The Diafjie, 3 Rob., 139; La Gloire, 5 Rob., 192.