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Intercourse across lines of military occupation.
921. All civil intercourse whatever, between the districts actually occupied by opposing belligerent armies is unlawful,' whether forbidden by proclamation or not ;except such as is expressly authorized by this Code,' or by agreement of the belligerent nations, or by the military authority having command of the frontier. But if the permission be given by one belligerent only, the intercourse is lawful as to him, but not as to the other.
Bluntschli, Droit Intern. Codifié, & 674; Lieber's Instructions, [ 86.
Hennan o. Gilman, 20 Louisiana Annual Rep., 241 ; see also Graham o. Mervill, 5 Coldwell, (Tennessee,) Rep.,622 ; Bank of Tennessee o. Woodson, 5 Id., 176.
The exception of contracts for ransom, which might be important it the prohibition of intercourse were extended beyond the lines of military occupation, need not be preserved, if the principles of the following Articles are adopted.
? A declaration of hostilities carries with it, according to the present rule, an interdiction of all commercial intercourse with the enemy, on the part of the subjects of the belligerent nation, without express license, Laurence's Wheaton, Elem. of Intern. Law, pp. 544, 551, 8 13; Dana's Wheaton, SS 309, 315 ; Barrick o. Buber, 2 Common Bench Rep. N. 8., 563; Esposito o. Bowden, 7 Ellis & Blackburn's Rep., 763 ; Phillips 0. Hatch, 1 Dillon's U. S. Circ. Ct. Rep., 191.
* Heffter, (S$ 122, 123,) suggests, that a declaration of war does not of itself prohibit commercial intercourse, but that such intercourse may go on, unless specially prohibited, and so far as not so prohibited; which . seems to be an opinion rather than a statement of law; for precedent and practice, and the opinions of jurists are the other way. Dana's Wheaton, note 158, p. 400.
3 See, for instance, Articles 922 and 923.
4 Under the existing rule, forbidding all trading with enemies, the license must be an express license granted or ratified by the highest au.. thority in the government. The Hope, 1 Dodson's Rep., 226. It must come ultimately from sovereign authority. Halleck, Intern. Law and Lars of War, 675-690 ; Manning, Lar of Nations, S 123; Wildman, Intern. Law, II., 245–266 ; 1 Kent's Commentaries, 163; 1 Duer on Insurance, 594-619 ; Hautefeuille, tom. 1, p. 19 ; Woolsey's Intern. Law, § 147; Phillimore's Intern. Law, III., 249, 613.
5 A license to trade with the enemy must be issued by competent auchority without material misrepresentation, whether intentional or not, on the part of the receiver, and must be used in good faith, strictly according to its terms. Dana's Wheaton, note 198, p. 504. See also Leevio
o. Cormac, 4 Taunton's Rep., 483, n.; Freise o. Thompson, 1 Id., 121; Van Dyck v. Whitmore, 1 East Rep., 475.
By the rules hitherto in force, it is cause of capture for a private ship of one belligerent to sail under a special license or safe conduct of the other, even where the voyage is to a neutral port, and there is no direct communication with the enemy in the whole course of the voyage. Thus in the war between Great Britain and the United States, in 1812, the former power being also with its allies, at war in Spain and Portugal, sold licenses to American vessels to trade between America and Spain or Portugal, in order to favor the forwarding thither of supplies for the allied armies. But American vessels trading under sucb licenses were held lawful prize by American cruisers. The Julia, 8 Cranch's U. 8. Supr. Ct. Rep., p. 181, and cases following, pp. 203, 444. So, too, the illegality of sailing under an enemy's license is held proper cause for the forfeiture of a neutral vessel. The Alliance, Blatchford's Prize Cases, (U. S. Dist. Ct.,) p. 262.
It is competent for the government to permit commercial intercourse, in so far, at least, that transactions had pursuant to such permission are held valid in the courts of such government. Woods v. Wilder, 43 New York Rep., 164.
In the Crimean war, the British government resolved to issue no licenses, but to allow trade to be carried on with the enemy, even by British subjects, provided it was carried on in neutral ships. “The example," says Lushington's Naval Prize Lar, Intrs., p. xi., "will in all probability be followed in future.”
In the war of France and Great Britain against China, the French gos. ernment allowed French and English subjects to continue their commercial intercourse with the Chinese, even on Chinese soil, and reciprocally the Chinese to continue such intercourse with French and English, even on French or English soil. 8 De Clercq, 353.
It has been claimed in England, and as strongly denied in the United States, that a country which, during peace, confines the trade of its colonies to its own subjects, can not, during war, open such trade to a neutral. See Mr. Justice DUER's essay on this subject, 1 Duer on Insurance, 698725. For the English rule, see The Emmanuel, 1 Robinson': Adm. Rep., 296 ; The Providentia, 2 ld., 142 ; The Ebenezer, 6 Id., 250 ; The Thomyris, Edu., 17. In support of the American rule, see Mr. MONROE's letter to Lord MULGRAVE, Sept. 23, 1805 ; Mr. Madison's letter to Messrs. Mox. ROE and PICKNEY, May 17, 1806; and the memorials of the merchants of Baltimore, New York, Boston and Salem, 5 American State Papers, 330335, 367–379 ; 2 Parsons on Contracts, 398.
The liability of neutral ships to detention, for carrying on the coasting trade of the enemy, “may be taken to have been silently repealed," rays Tushington, writing of the English rule, " by the advance of free trade." See also the provisions of BOOK FIRST in respect to equality of commercial privileges.
Private ships surprised by war.
922. Subject to articles 863 and 920, concerning contraband and the prohibition of exports, private ships bearing the national character of a belligerent, being, at the commencement of hostilities or the declaration of war, in ports where they would be subject to detention or confiscation under articles 921 and 929, or lawfully coming there' afterwards, are free froin capture and detention, and may discharge cargo; and may take in any
after the declaration of war or the commencement of hostilities. In case of a ship coming into port after such time the intervening period is not to be computed.
This seems a reasonable extension of the rule contended for by Vattel, (Droit des Gens, L. III., c. 4, 8 63,) and approved by Twiss, (Law of Nations, Part II., p. 101, $ 54, opposing in this the harsh doctrine of STORY, J.). Modern usages sanction the principle that the belligerent can neither detain the persons nor the property of those subjects of the enemy who are within his dominions at the time of the declaration, because they came into them upon the public faith. The above Article is of course so stated as to constitute an exception to the interdiction of intercourse with ports within the military occupation, Other ports would, by Article 891, be open during war.
1 See Articles 913 and 915.
• In the Franco-Prussian war, 1870-1, the German notification allowed six weeks ; the French, thirty days.
On the commencement of the Crimean war, each belligerent allowed the enemy's merchant vessels within its ports, &c., a reasonable time to load and depart; (six weeks were allowed by Great Britain) and those which had sailed bound to such ports were allowed to enter, discharge, and depart. “This," says Twiss, (Law of Nations, Part II., p. 117,) "marks an epoch in the practice of nations in the exercise of belligerent rights at the immediate outbreak of war.” He suggests, however, that the
tion of an ally, does not apply to cases of denial of redress for injuries received, and in which the property of members of one nation is liable to be confiscated for indemnity. Later precedents do not sustain this qualification.
923. Subject to articles 863 and 920, concerning contraband and the prohibition of exports, private ships bearing the national character of a belligerent, bound to a port of a hostile nation, in which they would be subject to confiscation or detention under articles 921 and 929, and leaving the last port before notice of the declaration of war or commencement of hostilities, or driven to the hostile port at any time in distress, may freely enter such port, and enjoy the same immunity as is provided in the last article.
Intercourse of active enemies.
924. Active enemies can not make contracts or en. gage in commerce or traffic with enemies, either active or passive, or with the hostile government, except as expressly sanctioned by this Code,' or by both of their respective governments.
See Chapters LX, and LXIII., and Part IX.
The doctrine, that a declaration or recognition of war effects an abso. lute interruption and interdiction of all cominercial intercourse and deal. ings between the subjects of the two countries, does not apply to "contracts of necessity, founded on a state of war, and engendered by its riolence ;" e. g., ransom bills, and bills of exchange drawn by a prisoner in the enemy's country for his own subsistence. Halleck, Intern. Lau and Laus of War, p. 359, $ 11.
Intercourse subserving the purpose of the war.
925. Enemies, whether active or passive, can not make contracts or engage in commerce or traffic with each other, or with each other's government, which may directly subserve the purposes of war.
The rule prescribed by this Article is suggested as the principal restriction which war ought to impose u pon neutrals and non-combatants. See note to the next Article.
926. Subject to the provisions of this Book, passive enemies may make any contracts, and engage in any commerce or traffic with any persons or nations, except their active enemies, and the hostile nation, which will not directly subserve the purposes of war.
The existing rules may be briefly indicated as follows :
The existence of war renders unlawful all commercial intercourse or correspondence of members and domiciled residents of one country with those of the other,
Trading by one enemy with the other subjects the property to confiscation or to capture and condemnation. • Partnerships between enemies are dissolved.
No valid contract, express or implied, can arise from any transaction between enemies. Executory contracts which can not be performed without commercial intercourse with the enemy are dissolved. 6 Wallace's U. 8. Supr. Ct. Rep., 535, and authorities there cited.
The rule forbidding trade between enemies has been applied to the full extent of the old principle, (now generally disavowed,) that, war makes all individual subjects of the nations concerned, the individual enemies of each other; and all intercourse between them, therefore, unless by consent of the sovereign, illegal, except contact in actual combat. The object, policy, and spirit of the rule, says Chief Justice MARSHALL, (in the case of The Rapid, 8 Cranch's U. S. Supr. Ct. Rep., 162,) " is to cut off all communication or actual loconuotive intercourse between indi. viduals of the belligerent States. Negotiation or contract has, therefore, no necessary connection with the offense. Intercourse inconsistent with actual hostility, is the offense against which the operation of the rule is directed.” In this case, an American citizen during peace bought English goods in England, and deposited them on Indian Island, a small island belonging to England, near the boundary between Nova Scotia and the United States. On the breaking out of war between Great Britain and the United States, he sent a fishing vessel to bring the goods away. This was held uplawiul.
An English case, The Madonna Della Gracia, (4 Robinson's Rep., 195,) has asserted a distinction in the case of property not bought in the way of trade; but as is pointed out by Mr. Castle, (Law of Commerce in Time of War, p. 24,) if we come to qualify this doctrine by the principle laid down by Mr. Justice WILLES, in Exposito o. Bowden, (9 Ellis & Blackburn's Rep., 788,) that mere payment of export and custom house dues is a sufficient dealing with the enemy to render the contract illegal; the
from that of the American, -that is to say, all intercourse with the enemy, inconsistent with actual hostility,-is illegal. STORY, J., in laying down the rule, in the case of The Julia, (8 Cranch's U. 8. Supr. Ct. Rep., 194.) says, that every aid by personal communication or by other intercourse, which shall take off the pressure of the war, or foster the resources or increase the comforts of the public enemy, is strictly inhibited. All intercourse which humanity or necessity does not require, is prohibited. Chancellor KENT, in Griswold v. Waddington, 16 Johnson's (New York) Rep., 438, reviewed the continental, the English and the American au. thorities, and concluded that the rule of interdiction implied in a state of war “ reaches to all interchange, or transfer, or removal of property, to -all negotiation of contracts, to all communication, to all locomotive inter