evade its operation, and to escape its penalties; but its inflexible rigour has defeated all these attempts. The apparent exceptions to the rule, far from weakening its force, confirm and strengthen it. They all resolve themselves into cases where the trading was with a neutral, or the circumstances were considered as implying a license, or the trading was not consummated until the enemy had ceased to be such. In all other cases, an express license from the government is held to be necessary to legalize commercial intercourse with the enemy (h). These principles are still applicable to war except when belligerents have, of their own accord, chosen to modify them by regulations for the guidance of their subjects in any particular case. During the Crimean war England, France, and Russia all permitted their respective subjects to trade with the enemy, provided the trade was carried on through the medium of a neutral flag (i). This relaxation of the rules of international law only applied to that particular war. England at the same time prohibited her subjects from dealing with any securities issued by the Russian Government during the war. Such an act was made a misdemeanour (k). At the outbreak of the Franco-German war, France permitted German vessels that had left Germany before the declaration of war, and were destined to carry goods to French ports, to proceed to such ports and discharge the goods, but German vessels which, under the same circumstances, were destined for neutral ports were held to be liable to capture as prize (1). § 315a. Relaxation of rules against enemy. trade with the § 315b. intercourse The law of nations prohibits all intercourse between subjects of the Extent of two belligerents which is inconsistent with the state of war between prohibition of their countries. This includes any act of voluntary submission to the between enemy, or receiving his protection; any act or contract which tends to enemies. increase his resources, and every kind of trading or commercial dealing or intercourse, whether by transmissions of money or goods, or orders for the delivery of either, between the two countries, directly or indirectly, or through the intervention of third persons or partnerships, or by contracts in any form looking to, or involving such transmission, or by insurances upon trade by or with the enemy. Beyond this the prohibition does not extend (m). It does not apply to transactions (h) The Franklin, 6 C. Rob. 127; The Madonna della Gracia, 4 C. Rob. 195; The Juffrow Catharina, 5 C. Rob. 141; The Alby, Ibid. 251. See Wheaton's Reports, vol. ii., App. note (i), p. 34; Wheaton on Captures, 220. [Mitchell v. U. S., 21 Wallace, 350; Radich v. Hutchins, 5 Otto, 210.] (i) [Kent. by Abdy (2nd ed.), p. 190.] (m) [Kershaw v. Kelsey, 100 Massa- Debts between enemies. $315c. Contracts with neutrals to be enemy's country. The Teutonia. which are to take place entirely in the territory of one belligerent. Thus, where a creditor residing in one of the States at war has an agent in the other State, to whom a debtor could pay the money, which agent was appointed before the war broke out, the payment by the debtor to such agent is lawful. It does not follow that the agent, if he receives the money, will violate the law by remitting it to his principal (n). If a debt between enemies is contracted during the war, it cannot be sued for when the war is over (o); but when debts have been contracted before war breaks out, the existence of the war does not extinguish the debts, it simply suspends the remedy of the creditor (p). If the debts are not confiscated during the war, the right to enforce payment revives with peace (q). As the creditor cannot sue for his debt during the war, it has recently been held in America that a statute of limitations does not run against the creditor while the war lasts (r). But there is no exception in this respect in the English Statute of Limitations (s). In a case where the parties had agreed in their contract that no suit or action should be sustainable unless commenced within twelve months after a certain event should occur, the Court held, that as this contract was followed by a war, by which the parties became enemies, the plaintiff was relieved from his disability to sue within the twelve months (t). Another result of war is, that a contract between a belligerent subject performed in and a neutral cannot, so long as the war lasts, be performed if the belligerent subject has agreed to carry it out in the enemy's country. Before the outbreak of the war between France and Germany in 1870, a German vessel was chartered by a British subject to carry a cargo of nitrate of soda (contraband of war) from Pisagua to Cork, Cowes, or Falmouth, and then to receive orders to proceed to any safe port in Great Britain, or on the continent between Havre and Hamburgh. On arriving at Falmouth the master received orders to go to Dunkirk, and started for that port. Shortly before arriving there, he was told by a French pilot that war had broken out between France and Germany, and thereupon he sailed to Dover to obtain accurate information. He had appeared off Dunkirk on the 16th of July, 1870, and war was actually declared on the 19th. At Dover he refused to give up the cargo unless the freight was sued by the consignees of the cargo. Howard, 111; Hanger v. Abbott, 6 Wal- (n) [Ward v. Smith, 7 Wallace, 452; (o) [Willison v. Paterson, 7 Taunton, 439.] (p) [Ware v. Hilton, 3 Dallas, 199; Upton, Martime Law, p. 42.] paid. The ship was therefore The Privy Council held that he (9) [Manning, by Amos (ed. 1875), p. 176; Hanger v. Abbott, 6 Wallace, 537.] (r) [Hanger v. Abbott, 6 Wallace, 532; The Protector, 9 Ibid. 687; U. S. v. Witey, 11 Ibid. 508.] (s) [De Wahl v. Braune, 25 L. J. Ex. 343, 345.] (t) [Semmes v. Hartford Ins. Co., 13 Wallace, 158.] was justified in putting back to Dover, and had been guilty of no improper delay or deviation from the voyage. As war was declared, his vessel, being German, could not go to Dunkirk, and he was therefore not bound to carry out his contract in that respect. In this particular case the Court allowed the master the freight from Pisagua to Dover, because Dunkirk was not the only port stipulated for in the charter party, and delivery at Dover was within the terms of the contract. They declined to decide whether the freight would have been earned if no other port but Dunkirk had been mentioned (u). the common part of allied § 316. Not only is such intercourse with the enemy, on the Trade with part of subjects of the belligerent State, prohibited and enemy unpunished with confiscation in the Prize Courts of their lawful on the own country, but, during a conjoint war, no subject of subjects. an ally can trade with the common enemy, without being liable to the forfeiture, in the Prize Courts of the ally, of his property engaged in such trade. This rule is a corollary of the other; and is founded upon the principle that such trade is forbidden to the subjects of the co-belligerent by the municipal law of his own country, by the universal law of nations, and by the express or implied terms of the treaty of alliance subsisting between the allied powers. And as the former rule can be relaxed only by the permission of the sovereign power of the State, so this can be relaxed only by the permission of the allied nations, according to their mutual agreement. A declaration of hostilities naturally carries with it an interdiction of all commercial intercourse. Where one State only is at war, this interdiction may be relaxed, as to its own subjects, without injuring any other State; but when allied nations are pursuing a common cause against a common enemy, there is an implied, if not an express contract, that neither of the co-belligerent States shall do anything to defeat the common object. If one State allows its subjects to carry on an uninterrupted trade with the enemy, the consequence will be, that it will supply aid and comfort to the enemy, which may be injurious to the common cause. It should seem that it is not enough, therefore, to satisfy the Prize Court of one (u) [The Teutonia, L. R. 4 P. C. 171. See also The San Roman, L. R. 3 A. & E. 583; The Express, Ibid. 597; The W. FF § 317. Contracts with the enemy prohibited. $318. Persons domiciled in country liable of the allied States, to say that the other has allowed this practice to its own subjects; it should also be shown, either that the practice is of such a nature as cannot interfere with the common operations, or that it has the allowance of the other confederate State (x). It follows as a corollary from the principle, interdicting all commercial and other pacific intercourse with the public enemy, that every species of private contract made with his subjects during the war is unlawful. The rule thus deduced is applicable to insurance on enemy's property and trade; to the drawing and negotiating of bills of exchange between subjects of the powers at war; to the remission of funds, in money or bills, to the enemy's country; to commercial partnerships entered into between the subjects of the two countries, after the declaration of war, or existing previous to the declaration; which last are dissolved by the mere force and act of the war itself, although, as to other contracts, it only suspends the remedy (y). Grotius, in the second chapter of his third book, where the enemy's he is treating of the liability of the property of subjects for the injuries committed by the State to other communities, lays down that "by the law of nations, all the subjects of the offending State, who are such from a permanent cause, whether natives, or emigrants from another country, are liable to reprisals, but not so those who are only travelling or sojourning for a little time;— for reprisals," says he, "have been introduced as a species of charge imposed in order to pay the debts of the public; from which are exempt those who are only temporarily subject to the laws. Ambassadors and their goods are, however, excepted from this liability of subjects, but not those sent to an enemy." In the fourth chapter of the same book, where he is treating of the right of killing (x) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 10; The Neptunus, 6 C. Rob. 403; 4 Ibid. 251. (y) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 21. Duponceau's Transl. p. 165, Note. Kent's Commentaries on American Law, vol. i. pp. 67, 68, 5th ed. [Griswold v. Waddington, 16 Johnson, 438; Esposito v. Bowden, 7 E. & B. 785; The William Bagaley, 5 Wallace, 377.] and doing other bodily harm to enemies, in what he calls solemn war, he holds that this right extends, "not only to those who bear arms, or are subjects of the author of the war, but to all those who are found within the enemy's territory. In fact, as we have reason to fear the hostile intentions even of strangers who are within the enemy's territory at the time, that is sufficient to render the right of which we are speaking applicable even to them in a general war. In which respect there is a distinction between war and reprisals, which last, as we have seen, are a kind of contribution paid by the subjects for the debts of the State" (z). Barbeyrac, in a note collating these passages, observes, that "the late M. Cocceius, in a dissertation which I have already cited, De Jure Belli in Amicos, rejects this distinction, and insists that even those foreigners who have not been allowed time to retire ought to be considered as adhering to the enemy, and for that reason justly exposed to acts of hostility. In order to supply this pretended defect, he afterwards distinguishes foreigners, who remain in the country, from those who only transiently pass through it, and are constrained by sickness or the necessity of their affairs. But this is alone sufficient to show that, in this place, as in many others, he criticized our author without understanding him. In the following paragraph, Grotius manifestly distinguishes from the foreigners of whom he has just spoken those who are the permanent subjects of the enemy, by whom he doubtless understands, as the learned Gronovius has already explained, those who are domiciled in the country. Our author explains his own meaning in the second chapter of this book, in speaking of reprisals, which he allows against this species of foreigners, whilst he does not grant them against those who only pass through the country, or are temporarily resident in it" (a). Whatever may be the extent of the claims of a man's () Grotius, de Jur. Bel. ac Pac. lib. iii. cap. ii. § 7, No. 1. Ibid. lib. iii. cap. iv. §§ 6—7. (a) Grotius, par Barbeyrac, in loc. [See on this point Whiting, War Powers under the Constitution of the United States (43rd ed.), p. 334.] § 319. Criticism of Barbeyrac. |