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“I conceive," said he, “that there must be an act of trading to the enemy's country, as well as the intention; there must be, if I may so speak, a legal as well as a moral illegality. If a man fires a gun at sea, intending to kill an Englishman, which would be legal murder, and does not kill an Eng. lishman, but an enemy, the moral guilt is the same, but the legal effect is different—the accident bas
in his favor-the criminal act intended has not been committed, and the man is innocent of the legal offence. So, if the intent was to trade with the enemy (which I have already observed cannot be ascribed to the party at the commencement of the voyage, hostilities not having then been declared), but at the time of carrying the design into effect, the person is become not an enemy --the intention here wants the corpus delicti.
“No case has been produced in which the mere intention to trade with the enemy's country, contradicted by the fact of its not being an enemy's country, has enured to condemnation. Where a country is known to be hostile, the commencement of a voyage toward that country may be a sufficient act of illegality; but where the voyage is undertaken without that knowledge, the.subsequent event of hostility will have no such effect. On principle, I am of opinion that the party is free from the charge of illegal trading.”
English merchants shipped on board a Spanish vessel bound from London to Corunna, a quantity of merchandise, to the order of Spanish merchants. Shortly after the shipment, and the voyage had commenced, hostilities were declared between Great Britain and Spain, and on the voyage the vessel was
seized by a British captor. Lord Stowell decreed restitution of the property to the shippers, saying: “The English merchants who shipped the goods were not called upon to know that the injustice of the other party would produce a war before the goods were delivered—the goods were to have been at the risk of the shippers till delivery-aid the contract was perfectly fair.”
In all cases, however, in which voyages have been coinmenced for trade with the enemy's country before the breaking out or declaration of hos. tilities, it is incumbent upon the claimants whose property is captured, to show that on the first notice of hostilities, all diligence possible was employed to effect a countermand of the voyage, or to change the destination of the vessel, so as to avoid the culpability of an illegal trading with the enemy. If such exertions have not been made, and if, either through neglect or design, the goods have been allowed to leave the enemy's country, no excuse, based upon individual inconvenience, or the necessity or policy of withdrawing property out of the country of the enemy, can of strict right avail, to avert a judgment of condemnation upon a capture.
It was held in the case before cited, of Bell vs. Gibson, that if an Englishman, at the commencement of hostilities, have merchandise in an enemy's country, he might withdraw it therefrom. But, as we have seen, the later case of Potts vs. Bell, reversed that doctrine, and it was there definitively established that trading with the enemy is ground
The Packet De Bilboa, 133.
Mitigation in cases of great hardship
of confiscation, and this without any exception, even upon the fact being shown that the goods were purchased before the war.
In cases which present circumstances of extreme hardship, courts of admiralty, in the exercise of prize jurisdiction, have manifested a willingness to soften the asperity of the rule, in its application.
In the case of “The Dree Gebroeders,” Lord Stowell said: "Pretences of withdrawing funds are at all times to be watched with considerable jealousy; but when the transaction appears to have been conducted bona fide with that view, and to be directed only to the removal of property which the accidents of war may have lodged in the belligerent's country, cases of this kind are entitled to be treated with some indulgence.
In another case in which an indulgence was allowed by the court for the withdrawal of property from the enemy's country, Lord Stowell declared that his decree must be considered as in no degree relaxing the necessity of obtaining a license.?
In another case decided by Lord Stowell, it would seem that the rigor of the rule was made to bend to the peculiar circumstances. Upon an examination of the circumstances, it will be found that although the letter of the rule may be relaxed, its spirit is not contravened.
The property in question, in that case, consisted of wines, a portion of which had been purchased in Spain, for the supply of the British fleet, before hostilites with that country. After the breaking
· The Dree Gebroeders, 4 Rob., 234.
out of the war, a secret deposit was made of the wines in Spain, and from thence they were removed to Leghorn; previous to which, however, some new. ly purchased wines were added for mixing, in order to color the stock which had become too pale to be salable. The mixture of the new wine, purchased after the commencement of hostilities, was considered by the learned court so indispensably necessary to the disposal of the old cargo, as not to affect the legality of the transaction.
The court then proceeds to excuse the want of a license in that case, as follows:
, "It is said that Mr. Gregory, the claimant in that case, might have obtained a license. I certainly do not mean to weaken the obligation to obtain licenses for every sort of communication with the enemy's country, in all cases where the measure is practicable; but I think I see great difficulties that might have occurred in applying for a license, or using it, in the present case.
How could Mr. Gregory describe his wines as to the place from whence they were to be exported? They were deposited secretly, and could only be exported by particular opportunities. On the other hand, can I entertain a doubt that government would have been very
desirous to protect him in the recovery of his property, purchased under a contract with them? Or, on the ground of public utility, is it too much to hold out this encouragement to persons engaged in contracts of this sort, that they shall obtain every facility in the disposing of such stores ?
It would be considerable discouragement to persons in such situations, at a distance from home, and employed in the public service, if they were to
know, that in case of hostilities intervening, they would be left to get off their stores as well as they could, with a danger of capture on every side. The circumstances of this case may be taken as virtually amounting to a license, inasmuch as if a license had been applied for, it must have been granted.”
Commerce carried on without license, by a citi. zen resident in an enemy's country, even though he be a representative there of his own country, and even though such commerce be manifestly beneficial to his own country, is illegal, and the property which is the subject of it may become lawful prize.'
Under this chapter, which treats of the rights and obligations and liabilities of citizens of belligerent
nations and their allies, the effect which a condition Legal effect
of war, of itself, produces upon the person, properof war one per ty and rights of the citizen may be briefly considand rights of ered.
The property of a nation consists of the property of the aggregation of individuals composing that nation, and therefore, a claim to indemnification for injuries sustained from a forcigu state (to enforce which, is the ostensible cause of all international wars), may be satisfied by a seizure of the property of any
individual members of that state. Upon this principle, the practice of nations in time of war has always proceeded. Although, as Grotius says, there is no natural responsibility of one person for the offences of another, yet by the law of nations, the “jure gentium voluntario," the whole property of the individual members of a state is responsi
Ex parte Baglehole, 18 Ves. Jr., 528; 1 Rose, 271.