The Laws of War, Affecting Commerce and Shipping | Page 7

war had a right to carry on a commercial intercourse with the enemy; and under colour of that, had the means of carrying on any other species of intercourse he might think fit? The inconvenience to the public might be extreme; and where is the inconvenience on the other side, that the merchants should be compelled, in such a situation of the two countries, to carry on his trade between them, (if necessary,) under the eye and control of the Government charged with the care of public safety?"
[Sidenote: Alien Enemy cannot sue in this country.]
Sir William then goes on to say,
"another principle of law, of a less politic nature, but equally general in its reception and direct in its application, forbids this sort of communication as fundamentally inconsistent with the relation at the time existing between the two countries, and that is the total inability to sustain any contract by an appeal to the tribunals of the one country, on the part of the subjects of the other. In the law of almost every country, the character of an Alien Enemy carries with it a disability to sue, or to sustain, in the language of the civilians, a persona standi in judicio. The peculiar law of our own country applies this principle with great rigour--the same principle is received in our Courts of the Law of nations; they are so far British courts, that no man can sue therein who is a subject of the Enemy, unless under particular circumstances that pro hac vice discharge him from the character of an Enemy, such as his coming under a flag of truce, a cartel, or a pass, or some other act of public authority that puts him in the Queen's peace pro hac vice. But otherwise he is totally _Ex lex_! Even in the case of ransom bills which were contracts, but contracts arising out of _the laws of war_, and tolerated as such, the Enemy was not permitted to sue _in his own person_, for the payment of the ransom bill; the payment was enforced by an action brought by the imprisoned hostage in the courts of his own country, for the recovery of his freedom. A state in which contracts cannot be enforced is not a state of legal commerce."
[Sidenote: No Trade permitted except under Royal licence.]
"Upon these and similar grounds, it has been the established rule of this court, confirmed by the judgment of the supreme court, that a trading with the enemy, except under a Royal Licence, subjects the property to confiscation.
"Where the Government has authorised, under sanction of an Act of Parliament, a homeward trade from the enemy's possessions, but has not specifically protected an outward trade to the same, though intimately connected with that homeward trade, and almost necessary to its existence, the rule has been enforced, where strong claim not merely of convenience, but almost of necessity, excused it on behalf of the individual.
"It has been enforced, where cargoes have been laden before the war, but where the parties have not used all possible diligence to countermand the voyage after the first notice of hostilities.[23]
"In the last war between England and America, a case occurred in which an American citizen had purchased a quantity of goods within the British territory, a long time previous to the war, and had deposited them upon an island near the frontier; upon the breaking out of hostilities, his agents had hired a vessel to proceed to the spot, to bring away the goods; on her return she was captured, and with the cargo, condemned as prize of war."[24]
So also, where goods were purchased, some time before the war, by the agent of an American citizen in Great Britain, but not shipped until nearly a year after the declaration of hostilities, they were pronounced liable to confiscation.[25]
Where property is to be withdrawn from the country of the enemy, it is the more satisfactory and guarded proceeding on the part of the British merchant to apply to his own Government for the special importation of the article; it is indeed the only safe way in which parties can proceed.[26]
[Sidenote: Subjects of an Ally may not trade with the Enemy.]
During a Conjoint War no Subject of an Ally can trade with the common enemy without liability to forfeiture in the prize courts of the Ally, of all his property engaged in such trade. As the former rule can be relaxed only by permission of the Sovran power of the state, so this can be relaxed only by the permission of the allied nations, according to their mutual consent.[27]
[Sidenote: Contracts void.]
On similar principles, all Contracts made with the Enemy during War are utterly void. This applies to Insurances on the enemy's property and trade; to the drawing and negociation of Bills of