giving judgment for the sake of pronouncing the opinion of the court in more formal terms."

Trade with the enemy is as illegal by land as by water. There is an authority in Rolle's Abridgment, 173, showing that it was anciently deemed illegal to trade with Scotland, then in a general state of enmity with this kingdom; and in the case of The Hoop, Lord Stowell, referring to this note in Rolle, declares, "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 upon 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."

The case of The Abby (5 Robinson, 251) shows, that the Court of Admiralty has not been disposed to force the rule beyond its true spirit. A ship sailed on the 11th September, 1795, for the island of Demerara, then a Dutch colony. War being declared, on the 16th of the same month, against Holland, Demerara became, of course, a hostile possession. The ship was captured off its coast, in May, 1796; but the island having in the meantime surrendered to the British forces, had become a British colony. Lord Stowell held, 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. "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 by accident does not kill an Englishman, but an enemy, the moral guilt is the same, but the legal effect is different; the accident has turned up in his favour, 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 an enemy (which I have already observed cannot be ascribed to the party at the commencement of the voyage, when hostilities were not yet 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 a 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 towards 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." (See also The De Bilboa, 2 Rob. 133.)

The rule against trading with the enemy applies of strict right even to British property that has left the enemy's country after the declaration of hostilities. It was, indeed, at one time held, that if an Englishman, at the commencement of hostilities, had goods in an enemy's country, he might bring them away. But it seems that the case of Potts and Bell (8 T. R. 548) has reversed that, as well as most of the other doctrines

laid down in Bell and Gilson. The doctrine is established by a decision quoted in Potts and Bell, from a manuscript note of Sir Edward Simpson, in the case of St. Philip, at the Cockpit, wherein it was established that trading with an enemy is a subject of confiscation, and excludes any exception, even on the ground that the goods had been purchased before the war. This authority, with all the others cited by the king's advocate in the case of Potts and Bell, received the general sanction of Lord Kenyon in delivering the judgment of the court.

At the same time, in cases of hardship, the courts have not shown themselves unwilling to make some relaxations. In the case of The Dree Gebroeders (4 Robinson, 234), Lord Stowell observed, "That 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 country, cases of this kind are entitled to be treated with some indulgence." But in the case of The Juffrow Catharina (5 Robinson, 141), a case where an indulgence was allowed by the court, for the withdrawal of British property, Lord Stowell intimated that his decree in that instance was not to be understood as in any degree relaxing the necessity of obtaining a licence. "On the contrary, this court cannot sufficiently inculcate the only way of applying in all cases for the protection of a licence, when property is to be withdrawn from the country of the enemy; it is, indeed, the only safe way in which a party can proceed."

In the case of The Madonna delle Grazie (14

Robinson, 195), some degree of relaxation was undoubtedly admitted, but it was admitted under very peculiar circumstances, which, though certainly infractions of the letter, yet by no means contravened the spirit of the rule. The goods in question, which were wines purchased solely for the supply of the British fleet before hostilities with Spain, were secretly deposited in that country after the breaking out of the war, and then removed to Leghorn, with an addition of some other newly purchased wines mixed in order to colour the previous stock, which had become too pale to be saleable by itself. The mixture of the new wine, which had been purchased subsequently to hostilities, was considered by Lord Stowell so indispensably necessary to the disposal of the old cargo, as not to affect the legality of the transaction. His judgment then proceeds in the following words:-"It is said that Mr. Gregory, the claimant in this case, might have obtained a licence; I certainly do not mean to weaken the obligation to obtain licences 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 licence, or in using it in the present case. How could Mr. Gregory describe his wines, as to the place from whence they would 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 this 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

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this sort, that they shall obtain every facility in disposing of such stores? It would be a 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 licence, inasmuch as if a licence had been applied for, it must have been granted."

Commerce by a person resident in an enemy's country, even as representative of the crown of this country, is illegal, and the subject of prize, however beneficial it may be to this country, unless authorized by licence. (Ex parte Baglehole, 18 Ves. jun. 528; 1 Rose, 271.)

Debts due by British subjects to subjects of the enemy's state, are during the war, withheld. "When Alexander," writes Vattel, Book 3, c. 5, s. 77, "became by conquest master of Thebes, he found, among the treasures of the conquered, an engagement from the Thessalians to pay a hundred talents. The Thessalians having served with merit in his army, he gave up the engagement to them, and thus remitted the debt. So the sovereign has naturally the same right over what his own subjects may owe to enemies. He may, therefore, confiscate debts of this nature, if the term of payment happen in time of war; or at least, he may prohibit his subjects from paying while the war continues." The latter course has been adopted by the British law. We suspend the right of the enemy to the debts which our traders may owe to him, but we do not annul it; we preclude him, during war, from suing to recover