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even to appear in a court of justice for that purpose, can there be a stronger proof that the law imposes a legal inability to contract? To such transactions it gives no sanction; they have no legal existence, and the whole of such commerce is attempted without its protection and against its authority. Bynkershoeck expresses himself with great force upon this argument, in his first book, chapter 7, where he lays down that the legality of commerce and the mutual use of courts of justice are inseparable; he says that cases of commerce are undistinguishable from cases of any other species in this respect.
Si hosti semel permittas actiones exercere, difficile est distinguere ex quâ causa oriantur, nec potui animadvertere illam distinctionem unquam usu fuisse servatam. Upon these and similar grounds, it has been the established rule of the law of this court, confirmed by the judgment of the supreme court, that a trading with the enemy, except under a royal licence, subjects the property to confiscation; and the most eminent persons of the law sitting in the supremecourts haveuniformly sustained such judgments.
" In all cases of this kind which have come before this tribunal they have received an uniform determination. The cases which I have produced prove that the rule has been rigidly enforced—where acts of parliament have, on different occasions, been made to relax the navigation law and other revenue acts—where the government has authorized, under the sanction of an act of parliament, a homeward trade from the enemy's possessions, but has not specifically protected an outward trade to the same, though intimately connected with that homeward 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. (Gist v. Mason, 1 Term R. 86.)”
The principal cases, which establish the illegality of commerce between belligerents, are The Hoop, above quoted, and Potts v. Bell, and others. (8 Term Reports, 548.) In the first case, Mr. Malcolm of Glasgow
and other Scotch merchants had traded to Holland for articles necessary for the agriculture and manufactures of that part of the country, for which they had several times before applied for and obtained the king's licence; but, after the passing of certain acts of parliament, having, upon application to the commissioners of the customs at Glasgow, been informed (erroneously as it afterwards appeared) that such licences were no longer necessary, they had omitted to obtain one on that occasion, in consequence of which, the cargo being taken was condemned as prize, on the general ground, that all trading with an enemy, without the king's licence, was illegal and a cause of confiscation. And in the case of Potts v. Bell, a British
subject shipped from the enemy's country, on board a neutral ship, goods which he had purchased of the enemy during hostilities, and it was decided, that an insurance upon such cargo was illegal and void. These cases show, that there is no distinction between trading with an enemy and with an enemy's country, and that aid is considered as being equally given to the enemy, whether goods be furnished immediately by the enemy, or through the medium of a neutral merchant, and that the danger of a traitorous correspondence is the
This strict exclusion of trade between belligerents has been carried so far as to prohibit a remittance of supplies even to a British colony, during its temporary subjection to an enemy. This extreme point is established by the case of The Bella Guidita (1 Robinson, 207). In that case, Grenada, a British possession, had been seized by the French, but by the public acts, both of France and of this country, it appeared, that the island was not considered to have entirely changed its national character; the French having made ordinances with respect to it, which they would not have made in the case of an island strictly French, and the British legislature having even enacted, in the 20th year of Geo. 3, that it being just and expedient to give every relief to the proprietors of estates there, no goods of the produce of Grenada, on board neutral vessels going to neutral ports, should be liable to condemnation as prize. Notwithstanding all these evidences, that the character of Grenada was not to be considered strictly hostile, notwithstanding even the express permission to export the produce of that island, a neutral vessel sent from England with goods
to be imported into Grenada was seized, as employing itself in an illicit intercourse with the
and condemned in the Vice-Admiralty Court of Barbadoes; upon appeal to the privy council by the proprietors of the cargo,
the sentence was affirmed. “During a conjoint war, no subject of one belligerent can trade with the enemy, without being liable to a forfeiture of his property, engaged in such trade, in the Courts of the ally.” (Lord Stowell, The Nayade, 4 Robinson, 251.)
The same rule is strictly applied by the American courts. The Rapid (8 Cranch, 155) was the case of an American citizen who had purchased goods in the British territory prior to the commencement of hostilities between the United States and Great Britain, and had deposited them on an island near the frontier; upon the breaking out of hostilities his agents had hired a vessel to bring away the goods; on her return she was captured, and with her cargo condemned. The Supreme Court in confirming the condemnation said, "that whatever relaxations of the strict rights of war, the more mitigated and mild practice of modern times might have established, there had been none on this subject. The universal sense of nations has acknowledged the demoralizing effects that would result from the admission of individual intercourse between the states at war. The whole nation is embarked in one common bottom and must be reconciled 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 enerny's country. (The Lawrence and cargo, 1 Gallison, 470; The Alexander and cargo, ib. 532; The Mary, ib. 620; The Joseph, ib. 545.) If an American vessel take on board a cargo from an enemy's ship, under pretence of ransom, it is a trading with the enemy, and the vessel may be seized as prize of war, as well after she has discharged the cargo, and on her return voyage, as before. (The Lord Wellington, 2 ib. 103.)
It is a trading with the enemy when a vessel owned by American citizens is captured by the enemy, carried into his port, libelled in his courts, and afterwards acquitted on an enemy's licence, under which he was sailing; and has then purchased a cargo in the enemy's country with which he is sailing for his home port. (The Alexander, 8 Cranch, 169.)
The rule which prohibits commerce with the enemy is enforced with peculiar strictness in the case of ships of truce or cartel ships. “The conduct of ships of
" this description," says Lord Stowell (The Venus, 4 Robinson, 357,)“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 on all parties to take care that it should be conducted in such a manner as not to become a subject of jealousy and distrust between the two nations." The Venus was a British vessel, which had gone to Marseilles, under cartel, for the exchange of pri
She had there taken a cargo on board, and was stranded and captured on a voyage to Port Mahon. Lord Stowell condemned her, on a full view of the cir