far Commercial permitting, where he sees proper, that commercial intercourse, Section I. How which is a partial suspension of the war. There may be occa- Intercourse sions, where such an intercourse may be highly expedient. But between Belligerents and it is not for individuals to determine on the expediency of such their Allies is occasions on their own notions of commerce, and possibly on prohibited, and the Exceptions grounds of private advantage, not very reconcileable with the to that Rule. general interests of the state. It is for the state alone, on more enlarged views of policy, and on consideration of all the circumstances that may be connected with such an intercourse, to determine when it shall be permitted, and under what regulations. In my opinion, no principle ought to be held more sacred, than that this intercourse cannot subsist on any other footing, than that of the direct permission of the state. Who can be insensible to the consequences that might follow, if every person in a time of war had a right to carry on a commercial intercourse with the enemy, and under colour of that, had the means of carrying on any other species of intercourse he might think fit? The inconvenience to the public might be extreme: and where is the inconvenience on the other side, that the merchant should be compelled, in such a situation of the two countries, to carry on his trade between them, if necessary, under the eye and control of the government charged with the care of the public safety (2)?" And after enumerating all the cases which tended to establish this rule, Sir Wm. Scott observed, "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 individuals; 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; 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 Section I. How notice, and apply mutually to the subjects of each other." So far Commercial Intercourse between Belligerents and their Allies is prohibited, and the Exceptions to that Rule. if a British subject effect an insurance on alien's property, the subsequent declaration of hostilities determines the contract, and the underwriter is not liable for a subsequent loss. (1) The principal cases, which establish the illegality of commerce between belligerents, are the Hoop (2), and Potts v. Bell and others (3). 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 (4), 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 shew, 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 same. 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 (5). 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 (1) Brandon v. Curling, 4 East, 410. Taunt. 239. (2) 1 Rob. Rep. 196. (3) 8 Term Rep. 548. far Commercial ligerents and of his present Majesty, that it being just and expedient to give Section I. How every relief to the proprietors of estates there, no goods of the produce of Grenada, on board neutral vessels going to neutral between Belports, should be liable to condemnation as prize. Notwithstand their Allies is ing all these evidences, that the character of Grenada was not prohibited, and the Exceptions to be considered strictly hostile, notwithstanding even the express to that Rule. 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 enemy, 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 (1); and though it was in one case (1) The hardship of this rule, as applied to this individual case, was strongly represented in the printed papers of appeal, as will be seen by the following extract from 1 Rob. Rep. 219." In the late unfortunate war, say the appellants, Great Britain saw many of its valuable West India possessions fall into the hands of the enemy, from the absolute inability to protect them: the proprietors being still British in principle and affection, and many of them by actual residence; and the hope being constantly entertained, as well by the public as by individuals, that those islands would soon revert to the dominion of their natural sovereign, the parliament, in the several cases of Nevis, Montserrat, St. Christopher's, Grenada, and the Grenadines, expressly permitted the produce of those plantations to be conveyed to Europe free from British capture, under limitations intended merely to prevent the abuse of this permission, by the clandestine extension of it to the produce of foreign colonies. In this provision the principle appears to be clearly recognised and established, that these islands, though captured, were not to be considered as French, for upon what other principle could British protection have been imparted to them? And if the British legisla intention to protect and encourage the produce of those plantations during the remainder of the war, upon what grounds of legal or political analogy, can it be contended, that it was criminal to transmit those supplies, without which those plantations could not possibly be continued in a state of culture? Does not the expressed permission of exportation involve a permission of all that species. of necessary importation without which the pretended permission of the other is merely nugatory and insulting? It remains for your Lordships to decide, whether those could possibly be the intentions of the British government, viz. That those islands should be condemned to absolute sterility by a refusal of such necessary supplies, as the French, from a partiality for their own islands, found it convenient to withhold from them; that the only practicable mode for the immediate collection of British debts, secured upon those plantations to an enormous amount, should be prohibited and punished; and that Great Britain, instead of receiving many important articles of consumption and commerce from its ancient markets, which it still continued to consider as its own, should lie at the mercy of the ancient markets of the enemy, upon such terms, as a successful monopoly would prescribe." far Commercial Intercourse between Belligerents and their Allies is prohibited, and the Exceptions to that Rule. Section I. How holden that an alien, to whom a bill of exchange drawn on England by a British subject detained prisoner in France during war, payable to another British subject also detained there, and which bill was there indorsed by the latter to the plaintiff, may sue on it in this country after the return of peace (1), yet that decision turned upon the circumstance of the bill having been framed between two British subjects prisoners at war in a foreign country, and who could not otherwise subsist. In a subsequent case, upon a review of most of the authorities, it was held, that no contract made with an alien enemy in time of war, can be enforced in a court of English judicature, although the plaintiff do not sue until the return of peace; and therefore where the defendant, a British subject resident here, having in his hands the proceeds of certain goods of A., an alien enemy, A. drew on the defendant payable to his own order, and indorsed the bill to the plaintiff, an English-born subject resident in the hostile country, who sued on the bill after peace restored, it was held that he could not recover. (2) Cartel Ships. One of the most reasonable instances in which this rule has been enforced, appears to be in the case of ships of truce, or cartel ships. As observed by Sir William Scott, in the case of the Venus (3), "The conduct of ships of this description 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 prisoners. She had there taken a cargo on board, and was stranded and captured on a voyage to Port Mahon. Sir William Scott condemned her, on a full view of the circumstances of the case, adding these further remarks, which are applicable to all other cases of cartel ships trading with the enemy: "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 (1) Antoine v. Morshead, 6 Taunt. 237. (2) Willison v. Patteson and others, 7 Taunt. 439. (3) 4 Rob. Rep. 357. . far Commercial original purpose, and to the rules which have been built upon it; Section 1. How since, if such a mode of intercourse is broken off, it cannot but Intercourse be followed by consequences extremely calamitous to individuals between Belligerents and of both countries. Cartel ships are subject to a double obliga- their Allies is tion to both countries not to trade. To engage in trade may be prohibited, and the Exceptions disadvantageous to the enemy, or to their own country; both to that Rule. 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." on Commerce This rule, which renders it illegal for a British subject to carry Illegal for an on commerce with an enemy, also precludes an ally from a similar Ally to carry intercourse (1). In the case of the Nayade (2), Sir William with Enemy. Scott said, "that the case of the Enigheid was decided on the ground that, 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." The principle of this rule is stated by Sir William Scott, in the case of the Neptunus (3), who said, "It is well known that a declaration of hostility naturally carries with it an interdiction of all commercial intercourse; it leaves the belligerent countries in a state that 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 this effect. At the same time it has happened, since the world has grown more commercial, that a practice has crept 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 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 enemy, the consequence may be, that it will supply that aid and comfort to the enemy, especially if it is an enemy depending (1) But a neutral or a British subject, resident in a neutral state, is not precluded from carrying Reid, 1 M. & S. 727. (2) 4 Rob. Rep. 251. |