Intercourse ligerents and their Allies is prohibited, and the Exceptions to that Rule. the report of the case of the Ocean the following useful note: Section I. How "The situation of British subjects wishing to remove from the far Commercial country of the enemy on the event of a war, but prevented by between Belthe sudden irruption of hostilities from taking measures for re moving sufficiently early to enable them to obtain restitution, forms not unfrequently a case of considerable hardship in the Prize Court. In such cases, it would be advisable for persons so situated, on their actual removal, to make application to government for a special pass, rather than to hazard valuable property to the effect of a mere previous intention to remove, dubious as that intention may frequently appear under the circumstances that prevent it from being carried into execution. In the case of the Juffrow Catharina (1), a licence had been granted to import certain raw materials from France, and under this licence an attempt was made to protect a quantity of lace. According to the general principle laid down in the numerous cases that have been considered, there seemed reason to regard this lace as subject to condemnation; but Sir William Scott, in consideration of particular circumstances, was of opinion that it should be restored to the claimant. This decision forms a remarkable exception to the ordinary rules by which licences are construed, and constitutes also an exception to the spirit of that leading principle, by which all commerce with the enemy on private account is so rigidly forbidden, without respect to the hardship of particular cases. "This lace," said Sir William Scott, "was shipped under an order given before hostilities, and it is argued on the part of the captors, that lace is an article which cannot be included under the terms raw materials; that no protection can be derived from the licence, and that the original order ought to have been countermanded at the breaking out of the war. Certainly, if a licence is to be deemed necessary, it will be difficult to say, that the particular licence alluded to in the present case can avail to the protection of this shipment. But there are some considerations, applying to the manner in which this shipment had originated, which may entitle it to more indulgence. It appears that goods were sent out from this country to Flanders, and that an order was given at the same time for a return of certain other foreign articles, and, among the rest, for this lace. It seems, that when an order is given for lace, it is put into a state of preparation, and that more time is required to countermand an order for this article, than (1) 5 Rob. Rep. 141. Section I. How for others on which less labour and preparation is required. far Commercial Intercourse between Belligerents and their Allies is prohibited, and the Exceptions to that Rule. It is a work of long and slow process, in which advances must be made to the manufacturers; and although the demand on that account against the merchant would be suspended during hostilities, it might be difficult to relieve the British merchant from the demand, when the foreign correspondent was rehabilitated and restored to his right of action by the return of peace. It is to be remembered also, that during the present hostilities, there has been a more than ordinary difficulty in carrying on any correspondence with the enemy's countries: a circumstance for which the court has, in other cases, thought it not unreasonable to make some allowance. It does not appear that the party had an opportunity of countermanding; and although it would have been a more satisfactory and a more guarded proceeding on the part of the British merchant, to have applied for a licence for the special importation of this article under the circumstances of his case, there are sufficient considerations to induce the court to think favourably of this claim. There seems to have been no intention to dissemble; it was owing to the erroneous conception of the enemy's shipper that this article was put on board, to take the benefit of a licence that had been procured for other articles in this vessel. It is therefore, in this point of view, distinguishable from Mr. Hankey's case, in which the shipment was made here, where the party had still the dominion over the goods, and the power to stop them from proceeding. Here the dominion was in the enemy's shipper, under a discretion reposed in him by orders before the war, and which the importer is not shewn to have had any opportunity of countermanding. I wish it to be understood, that by this decree the necessity of obtaining a licence is not in any degree relaxed. On the contrary, this court cannot sufficiently inculcate the duty of applying, in all cases, for the protection of a licence, where property is to be withdrawn from the country of the enemy; it is, indeed, the only safe way in which parties can proceed. Without meaning in the least to weaken the force of the obligation, I think the claim, under the particular circumstances of this case, is justly entitled to the favourable considerations which I have thrown out, and I shall direct the property to be restored." An attempt was made by the counsel in the case of De Tastet v. Baring (1) to establish, that no bill drawn from an hostile country upon this, could legally be passed here; but, (1) 11 East. 268. far Commercial upon this point, the court do not appear to have given any Section I. How opinion. In several recent instances of bills drawn by British Intercourse prisoners in France upon this country, holders, with full notice between Belligerents and of the circumstances, have been permitted to recover, on the their Allies is ground that otherwise prisoners at war might be deprived of prohibited, and the Exceptions the means of comfortable subsistence. (1) In the case of the Madonna Delle Gracie (2), some degree of relaxation was undoubtedly admitted, but it was admitted under very peculiar circumstances, which though certainly infractious 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 Sir William Scott 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 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 (1) See Antoine v. Morshead, 6 Taunt. 237. 1 Marsh 558; but in general a bill drawn in war by an alien enemy abroad on a British subject here, cannot be to that Rule. Section II. What is War, and who 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." Secondly, we are to consider what is the strict definition of are to be deemed war, and who are to be deemed the alien enemies of a belligeAlien Enemies, rent nation, and what constitutes an hostile character for comstitutes an hostile mercial purposes. and what con Character for War is that conflict between nations, which cannot be underPeace and War taken, or carried on, except by the authority of the sovereign. defined, and how But the universal law of nations does not acknowledge any geevidenced. (2) neral obligation of making a declaration of war to the enemy, previous to the commencement of hostilities. Formerly, such a declaration was considered essential; but since the beginning of the 17th century, it has been the practice for nations to content themselves with publishing a declaration of war through their own dominions, explaining their motives to other powers in writing. In the case of the Nayade (3), Sir Wm. Scott, with reference to the situation in which Portugal stood as to France, during the year 1801, said, "The relation which Portugal has borne towards France at different periods has been extremely ambiguous; at first, there was a wish on the part of Portugal not to consider herself as being at war with France, and if a submissive conduct, and a disposition not to resent injuries, could have afforded protection against the violence of France, she might have escaped; but it is equally notorious, that all these concessions were made without success, and proved utterly inefficacious to prevent Portugal from being implicated in a war with France. In cases of this kind, it is by no means necessary, that both countries should declare war. Whatever might be the prostration and submissive demeanour on one side, if France were unwilling to accept that submission, and persisted in attacking Portugal, it was sufficient; and it cannot be doubted by any body, who has attended to the common state of public affairs, that Portugal was considered as engaged in war with France." In order, however, to legalize a war, it must not only be commenced or declared by one of the contesting states, but such (1) See division of the subject, ante, 377. (2) See Marten's L. N. 271, 2. (3) 4 Rob. Rep. 252. are to be deemed and what con commencement or declaration must be made by that particular Section II. What branch of the state which is invested by the constitution with this is War, and who important prerogative. And by the constitution of the United Alien Enemies, Kingdom, the sole authority to declare war or peace is vested in stitutes an hostile King (1) "If," says Brooke in his Abridgement (2), "all the Character for people of England would make war with the King of Denmark, Purposes. and our King will not consent to it, this is not war; but when the peace is broken by ambassadors, the league is determined." In order to ascertain whether or not a war or state of amity or neutrality subsists, it was observed by Sir William Grant (3), that" it always belongs to the government of the country, to determine in what relation any other country stands towards it; and that is a point upon which courts of justice cannot decide; and the most potent evidence upon such a subject, is the declaration of the state; and if the state recognizes any place as being or as not being in the relation of hostility to this country, that is obligatory in courts of justice (4). A proclamation in the Gazette for reprisals is evidence of an existing war, and it suffices to produce the Gazette on the trial of an action (5); so a recital of the existence of warfare in an act of parliament is evidence of the fact (6). So an order in council, declaring certain ports not hostile which had formerly been so, though such declaration were made for collateral and limited purposes, not covering the trading in question, is conclusive evidence that war no longer subsists, so as to render traffic to such ports illegal (7). And with respect to a war between this country and a foreign state, it has been held that public notoriety is sufficient evidence of the existence of such war, and that evidence of the fact need not be adduced (8); and a declaration of war by a foreign government, transmitted to this country by the English ambassador, and produced from the secretary of state's office, has been admitted as evidence of the commencement of hostilities between (2) Tit. Denizen, pl. 20. (3) In case of the Pelican, Burke 1 Edwards, Rep. Append. D. 3 Campb. 62. Blackburn v. Thompson, 15 East, 90. S. P. (4) Per Ld. Ellenborough, 3 (7) Blackburn v. Thompson, 3 Campb. 67. 15 East. 81. S. C. (8) Phil. on Ed. 4 ed. 323. n. 4. Dolder v. Ld. Huntingfield, Commercial |