Section I. How very materially on the resources of foreign commerce, which far Commercial Intercourse between Belligerents and their Allies is prohibited, and the Exceptions to that Rule. Attempts to elude the Rule unavailable. may be very injurious to the prosecution of the common cause, and the interests of its ally. It should seem, that it is not enough therefore to say, that the one state has allowed this practice to its own subjects, it should appear to be at least desirable that it could be shewn, that either the practice is of such a nature as can in no manner interfere with the common operations, or that it has the allowance of the confederate state." The advantages which particular individuals might derive from the violation of this rule, have caused a number of attempts to elude it, but no artifice has yet succeeded in discovering any legal mode of trade between belligerents, without the express permission of their governments. In the case of the Jonge Pieter (1), an attempt was made to protect a cargo shipped in England, and ultimately destined for an enemy's market, by dividing the voyage, and directing the cargo to be taken, in the first instance, to a neutral port, from whence it might or might not be afterwards carried forward to the place of its real destination, the enemy's market. But Sir William Scott condemned it to the captors, making use of the following expressions (2): "Without the licence of government, no communication, direct or indirect, can be carried on with the enemy. On the policy of that law, this is not the place to observe; it is the law of England; and if any consideration of mercantile policy interfere with it, the duty of the subject is to submit his case to that authority of the country which can legalize such a trade, looking to all the considerations of political as well as commercial expediency that are connected with it. But an individual cannot do this; he is not to say, such a trade is convenient, and therefore legal; neither can the court exercise such a discretion. Where no rule of law exists, a sense or feeling of general expediency, which is, in other words, common sense, may fairly be applied; but where a rule of law interferes, these are considerations to which the court is not at liberty to advert. In all the cases that have occurred on this question, and they are many, it has been held indubitably clear, that a subject cannot trade with the enemy without the special licence of government. The interposition of a prior port makes no difference; all trade with the enemy is illegal; and the circumstance, that the goods are to go (1) 4 Rob. Rep. 79. (2) 4 Rob. 83, 4. See to the same effect, 3 Rob. 21. first to a neutral port, will not make it lawful. The trade is Section I. How still liable to the same abuse, and to the same political danger, whatever that may be." Nor have the endeavours which have been made to protect the cargo, by the intervention of third persons, been more successful than the interposition of a fictitious destination. Thus, in the case of the Samuel (1) it was decided, that if an English subject employs a neutral to purchase for him in the country of the enemy, the neutral is in such case but the mere agent, the goods must then be considered to pass immediately from the enemy to the British subject, and such a transaction would be illegal. But if a neutral merchant has, bona fide, goods or vessels of his own, lying in an enemy's port, the Court admitted that he might dispose of them, even to a British subject, as freely as if they were on the seas, and the locality of the ship will not affect the legality of the sale. However, we shall hereafter see, that merchants, taking up their residence in an enemy's country, are not to be considered neutrals at all, so that there is little possibility of collusion by this resource. A partnership has also been tried as a cloak for this illegal intercourse, but with the same unvarying ill success which has attended all other stratagems. For, in the case of the Franklin (2), which was a case of trade carried on with the enemy by a firm, consisting partly of neutrals and partly of British subjects, Sir William Scott said, "It has been decided, that even an inactive, or sleeping partner, as it is termed, cannot receive restitution in a transaction in which he could not lawfully be engaged as a sole trader." far Commercial Intercourse between Belligerents and their Allies is prohibited, and the Exceptions to that Rule. on the Rule. There was formerly some doubt, whether the rule, which we Decisions at Law have seen has been thus rigidly enforced in the admiralty courts, was to prevail to the same extent in the courts of common law. The cases of Gist and Mason (3), and Bell and Gilson (4), had left the question in much perplexity, but the uniformity of decision between both tribunals was definitively established by Lord Kenyon, in the case of Potts against Bell, in error (5). His Lordship said, "that the reasons urged, and the authorities cited, were so many, so uniform, and so conclusive, to shew that a British subject trading with an enemy was illegal, that the (1) 4 Rob. Rep. 284. Vide Potts v. Bell, 8 Term Rep. 548. (2) 6 Rob. Rep. 131. (3) 1 Term Rep. 84. far Commercial Intercourse between Belligerents and their Allies is prohibited, and the Exceptions to that Rule. Section I. How question might be considered finally at rest, and that it was needless to delay giving judgment for the sake of pronouncing the opinion of the Court in more formal terms; more especially, as they could do but little more than recapitulate the judgment, with the long train of authorities already to be found in the clearest terms in the printed report of the case of the Hoop, published by Dr. Robinson." Nor does it make any difference in the illegality of the trade, that it be carried on by land rather than by water. There is an authority (1) shewing, 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, Sir William Scott, referring to this note in Rolle declares, "that 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 happened more frequently upon the water, merely in consequence of the insular situation of this country; but when an enemy existed in the other part of the island, the only instance in which it could occur upon the land, it appears to have been deemed equally criminal in the jurisprudence of this country."-In the case of Gist v. Mason (2), Lord Mansfield mentioned an instance, where trading with an enemy was deemed unlawful, from a note given him by Lord Hardwicke, on a reference to all the Judges, in the time of King William the Third, whether it were a crime at common law to carry corn to an enemy, who were of opinion that it was a misdemeanor. Exceptions to the Rule. But though the rule is thus general and impartial, it is not extended beyond its just and strict construction. The case of the packet De Bilboa (3), was a claim made by an English house for goods shipped on board a Spanish vessel, by order of Spanish merchants, before hostilities with Spain. Hostilities had been declared subsequently to the shipment, and the vessel, on its voyage from London to Corunna, had been seized by a British captor. Sir William Scott observed, "that the English merchant, who shipped the goods in London, was not called upon to know that the injustice of the other party would produce a war before the delivery of his goods; that the goods were to have been at the risk of the shippers till delivery; and that the (1) Rol. Ab. 173. Skinner, 638. (2) 1 Term Rep. 84. See also (3) 2 Rob. Rep. 133. far Commercial ligerents and contract was perfectly fair. He therefore decreed restitution Section 1. How to the shipper." The case of the Abby (1) also shews, that the Intercourse court of admiralty has not been disposed to force the rule between Belbeyond its true spirit. A ship sailed on the 11th September their Allies is 1795, for the island of Demerara, then a Dutch colony. War prohibited, and the Exceptions being declared on the 16th of the same month against Holland, to that Rule. Demerara became of course a hostile possession. The ship was captured off its coast in May 1796, but the island having in the mean time surrendered to the British forces, had become a British colony. Sir William Scott 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. (2) 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." From the same case, and from the case of the Hoop (3), it is further to be collected, that where cargoes have been laden before the war, they will be restored to the claimants, if it be shewn that on the first notice of hostilities all possible diligence portations. (1) 5 Rob. Rep. 251. (3) 1 Rob. Rep. 198. Section I. How far Commercial Intercourse between Belligerents and their Allies is prohibited, and the Exceptions to that Rule. was employed to countermand the voyage, or alter its destina- At the same time, in cases of hardship, the courts have not shewn themselves unwilling to make some relaxations. In the case of Dree Gebroeders (4), Sir W. Scott observes, "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 description are entitled to be treated with some indulgence." But in the case of the Juffrow Catharina (5), a case where an indulgence was allowed by the court for the withdrawing of British property, Sir W. Scott intimated, that his decree in that instance was not to be understood as in any degree relaxing the general necessity of obtaining a licence, wherever property is to be withdrawn from the country of the enemy. Dr. Robinson (6) has subjoined to (1) See cases cited in 8 Term (2) 1 Bos. and Pul. 345. (4) 4 Rob. Rep. 234. |