« PreviousContinue »
gated practice of modern times, there has been none on this subject. The universal sense of nations has acknowledged the demoralizing effects that would result from the admission of individual intercourse Necessity for between the states at war. The wdiole nation is forcementof embarked in one common bottom, and must be re: the rule. conciled to one common fate. Every individual of the one nation, must acknowledge every individual of the other nation, as his own enemy, becaxise he is the enemy of his country. It is no excuse for such trading with the enemy, that the property was purchased before the war—much less that the goods only, and not the purchase, existed before the war, in the enemy's country."
In numerous other cases in the American courts the same principle has been invoked and applied with uniform strictness.1
In the case of The Lord Wellington, 2 Gallison, „ . 103, an American vessel received a cargo from on
Penalty of Tio-' , . °
lation of the board an enemy s snip, under the pretence ot ranruk som. After she had discharged her cargo, and upon
her return voyage, she was seized and condemned as lawful prize of war, as having been engaged in unlawful commerce with the enemy.
In the case of The Alexander, 8 Cranch, 169, a ship, owned by citizens of the United States, was captured by the enemy, taken into the enemy's port, and there, \ipon the hearing of the libel, she was discharged, upon its being made to appear that she was sailing under«an enemy's license. A cargo was then purchased and laden on board of her in the
1 The Lawrence, 1 Gallison, 470; The Alexander, ib., 532; The Mary, ib., 620; The Joseph, ib., 540; The Lord Wellington, 2 ib., enemy's country, and on her voyage home she was captured. She was condemned as having been engaged in an illicit trading with the enemy.
In the case of ships sent on errands of humanity Truce or cartel in time of war, called truce or cartel ships, the rule Bhip9' of commercial non-intercourse is enforced with peculiar sternness. Ths Venus was a British vessel, which had gone to Marseilles, under cartel, for the exchange of prisoners. While there, a cargo was laden on board-, and on her voyage thence to Port Mahon, she was stranded and captured. Upon a full view of all the circumstances of the case, judgment of condemnation was passed against her by Lord Stowell. "The conduct of ships of this de-' scription," he says, "cannot be too narrowly watched. The service on which they are sent is so highly important to the interests of humanity, that it is peculiarly incumbent upon all parties to take care that it should be conducted in such manner as not to become a subject of jealousy and distrust between the two nations."
Again, and in another case of a like character, Lord Stowell says: " The employment to which the privilege of cartel is allowed, is of a very peculiar nature. It is a mode of intercourse between hostile nations, invented for the purpose of alleviating, in some degree, the calamities of war, by restoring to their liberty those individuals who may happen to have fallen into a state of captivity. It is the mutual exchange of prisoners of war, and therefore, properly speaking, it can have place between belligerents only." "It is not a question of gain, but one on which depends the recovery of the liberty of individuals who may happen to have become prisoners of war; it is, therefore, a species of navigation which, on every consideration of humanity and policy, must be conducted with the most exact attention to the original purpose, and to the rules which have been built upon it; since, if such a mode of intercourse is broken off, it cannot but be followed by consequences extremely calamitous to individuals of both countries." "Cartel ships are subject to a double obligation to both countries, not to trade. To engage in trade may be disadvantageous to the enemy, or to their own country. Both are mutually engaged to permit no trade to be carried on under a fraudulent use of this intercourse. All trade must therefore be held to be prohibited, and it is not without the consent of both governments, that vessels engaged in that service can be permitted to take in any goods whatever."1
If a ship be really and in good faith going as a cartel, on a voyage for the purpose of bringing prisoners, she will be protected from condemnation, even although she is without a regular certificate of cartel; and this protection extends to the return voyage.2
While the rule of prohibition of commercial intercourse between belligerents is applied with the utmost rigor to cartel ships, yet, in the interests of humanity, their employment for the legitimate purpose of cartel is encouraged and protected.
Contracts made for their equipment and supply are considered as contracts. between friends, and
1 The Rose in Bloom, Dodson, 60; The Caroline Verhage, 9 Rob., 336.
» The Diafiie, 3 Rob., 139; La Gloire, 5 Rob., 192.
consequently are enforced in the judicial tribunals of either belligerent. Such vessels are regarded as licensed neutrals, and all persons connected with their navigation, in the particular service in which both belligerents have employed her, are neutral in respect of both, and under the protection of both. Persons placed on board a cartel, with their own consent, by the government of the enemy, to be carried to their own country, are bound to do no act of hostility. Therefore a capture made by such persons from the enemy, of a vessel of their own country, is not, in contemplation of law, a recapture, and confers upon them no right as salvors, nor does it restore the former owner to his title to the vessel.1
The principle which interdicts commercial inter- Rulo of 8UScourse between belligerents, is equally applicable ^^radli into their allies. tercourse ap
plicable to al
"It is well known," says Lord Stowell, "that aiiesaa well as declaration of hostihty naturally carries with it an beUigCTent8interdiction of commercial intercourse. It leaves the belligerent countries in a state which is inconsistent with the relations of commerce. This is the natural result of a state of war, and it is by no means necessary that there should be a special interdiction of commerce to produce that effect. At the same time it has. happened, since the world has grown more commercial, that. a practice has crept in of admitting particular relaxations, and if one state only is at war, no injury is committed to any other state. It is of no importance to other nations how much a single belligerent chooses to weaken
1 Crawford vs. The William Perm, Peters, 106; The Mary Folger, 5 Rob., 00; La Rosine, 2 Rob., 372.
and dilute his own rights, but it is otherwise when allied nations are pursuing a common cause against a common enemy.
Between them it must be taken as an implied, if not an express contract, that one state shall not do any thing to defeat the general object. If one state admits its subjects to carry on an uninterrupted trade with the enemy, the consequence may be, that it will supply that aid and comfort to the enemy, especially if it be an enemy like Holland, very materially depending on the resources of foreign commerce, which may be very injurious to the prosecution of the common cause and the interests of its ally. It should seem, therefore, that it is not enough to. say that one state has allowed this practice to its own subjects; it should appear to be, at least, desirable that it could be shown, either that 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."1
Attempts to The allurement of brilliant profits which may oflu^on result from a successful violation of the rule of of commerce, prohibition of commercial intercourse between belligerents, has led to many individual attempts to evade the rule, or avoid the penalties of its infringement by various artifice; but no ingenuity has yet succeeded in discovering a mode by which a trade between belligerents can be carried on with impunity, without the authorization of the governments.
In one case, a cargo was shipped in England, destined for the market of the enemy. An attempt