« ПретходнаНастави »
consequently are enforced in the judicial tribunals of either belligerent. Such vessels are regarded as licensed neutrals, and all persons connected with their navigation, in the particular service in which both belligerents have employed her, are neutral in respect of both, and under the protection of both. Persons placed on board a cartel, with their own consent, by the government of the enemy, to be carried to their own country, are bound to do no act of hostility. Therefore a capture made by such persons from the enemy, of a vessel of their own country, is not, in contemplation of law, a recapture, and confers upon them no right as salvors, nor does it restore the former owner to his title to the vessel.
The principle which interdicts commercial inter- Rule of suscourse between belligerents, is equally applicable commercial into their allies.
plicable to al “It is well known,” says Lord Stowell, “that a lies as well as declaration of hostility naturally carries with it an
belligerents. interdiction of commercial intercourse. It leaves the belligerent countries in a state which is inconsistent with the relations of commerce. This is the natural result of a state of war, and it is by no means necessary that there should be a special interdiction of commerce to produce that effect. At the same time it has happened, since the world has grown more commercial, that a practice has crent in of admitting particular relaxations, and if one state only is at war, no injury is committed to any other state. It is of no importance to other nations how much a single belligerent chooses to weaken
1 Crawford vs. The William Penn, Peters, 106; The Mary Folger, 5 Rob., 00; La Rosine, 2 Rob., 372.
and dilute his own rights, but it is otherwise when allied nations are pursuing a common cause against a common enemy.
Between them it must be taken as an implied, if not an express contract, that one state shall not do any thing to defeat the general object. If one state admits its subjects to carry on an uninterrupted trade with the
consequence may be, that it will supply that aid and comfort to the enemy, especially if it be an enemy like Holland, very materially depending on the resources of foreign commerce, which may be very injurious to the prosecution of the common cause and the interests of its ally. It should seem, therefore, that it is not enough to say that one state has allowed this practice to its own subjects; it should appear to be, at least, desirable that it could be shown, either that the practice is of such a nature as can in no manner interfere with the common operations, or that it has the allowance of the confederate state.”l
The allurement of brilliant profits which may evade the rule result from a successful violation of the rule of of suspension
a of commerce. prohibition of commercial intercourse between bel
ligerents, has led to many individual attempts to evade the rule, or avoid the penalties of its infringement by various artifice; but no ingenuity has yet succeeded in discovering a mode by which a trade between belligerents can be carried on with impunity, without the authorization of the governments.
In one case, a cargo was shipped in England, des. tined for the market of the enemy. An attempt
was made to protect it by dividing the voyage, so that the cargo should be taken in the first instance to a neutral port, from which it might or might not thereafter, be carried to the place of its real destination—the port and market of the enemy. Upon a capture being made, it was condemned to the captors. In his
In his opinion in this case, Lord Stowell says: “Without the license of government, no communication, direct or indirect, can be carried on with the enemy. Where no rule of law exists, a sense or feeling of general expediency, which is, in other words, common sense, may be fairly applied; but where a rule of law interferes, these are considerations to which the court is not at liberty to advert. In all the cases that have occurred on this question, and they are many, it has been held indubitably clear, that a subject cannot trade with the enemy without the special license of the government. The interposition of a prior port makes no difference; all trade with the enemy is illegal; and the circumstance that the goods are to go first to a neutral port, will not make it lawful; the trade is still liable to the same abuse, and to the same political danger, whatever that may be.”
In another case, an attempt was made to protect property purchased in the country of the enemy, by the employment of a neutral intermediary; but upon capture, it was condemned as lawful prize, the neutral being regarded in such case, as the mere agent, the property being considered, in legal intendment, as passing directly from the enemy to the purchaser.
1 The Jonge Pieter, 4 Rob., 79. · The Samuel, 4 Rob., 284; 8 Term. R., 548.
In another case, an attempt was made to elude the rule by carrying on the trade with the enemy by a firm consisting partly of neutrals and partly of belligerents, but it was held that “even an inactive or sleeping partner, as it is termed, cannot receive restitution in a transaction in which he could not lawfully be engaged as a sole trader. "
The early decisions in the English.common law courts in which the doctrine of the illegality of commercial intercourse between belligerents was involved, were not in entire conformity with the principle as established in the admiralty. But a uniformity of decision was definitively determined
by Lord Kenyon in a later case, in which he says: Present uni. “The reasons urged, and the authorities cited, are and admiralty so many, and so uniform, and so conclusive, to decisions on show that a British subject's trading with an enemy this point.
is illegal, that the question may be considered finally at rest, and it is needless to delay giving judgment, for the sake of pronouncing the opinion of the court in more formal terms."
The reasons on which the principle is established, pension in
which interdicts commercial intercourse between plicable on belligerents, make it equally applicable, whether
that intercourse be conducted upon the land or by water. A note in Rolle has been cited as authority, showing that it was anciently deemed illegal for an English subject to trade with Scotland, then in a general state of enmity with England. Lord Stow. ell, in the case of The Hoop, before cited, referring
Rule of sus
and as well as on water.
The Franklin, 6 Rob., 131. ? Gist vs. Mason, 1 Term R., 84; Bell vs. Gibson, i Bos. & Pul., 245.
* Potts vs. Bell, 8 Term R., 548. * Rolle's Ab., 173.
to the note in Rolle, says: “What the common law of England may be, it is not necessary, nor perhaps proper, for me to inquire; but it is difficult to conceive that it can, by any possibility, be otherwise, for the rule in no degree arises from the transaction being on the water, but from principles of public policy, and of public law, which are just as weighty on the one element as on the other, and of which the cases have more frequently happened upon the water, merely in consequence of the insular situation of this country.”
Although the rule of prohibition of commercial intercourse between belligerents is applied by courts of admiralty in the exercise of prize jurisdiction with the utmost rigor and strictness, yet in many Rigorous encases which have arisen, the disposition has been forcement of clearly manifested not to extend the rule beyond in its just the limits required by a just consideration of the reasons and policy upon which it is founded.
The ship Abby sailed from a port in England for the island of Demerara, then a Dutch colony, on ting the man: the 11th of September, 1795. War was declared forcement. with Holland on the 16th of the same month, and, of course, Demerara became, ipso facto, a hostile possession. The ship was captured off its coast, in May, 1796; but in the meanwhile the island had surrendered to a British force, and consequently had become a British colony.
It was held by Lord Stowell that, as the port to which the ship was destined did, at the time of her carrying the design into effect, belong, not to an enemy, but to his Britannic Majesty, the ship was not to be deemed in fact an illegal trader.”
'The Abby, 5 Rob., 251.