The Laws of War, Affecting Commerce and Shipping | Page 6

England, Magna
Charta itself, which prescribes, that at the commencement of a war the
enemy's merchants shall be kept and treated as our own merchants are
treated in their country."[13]
[Sidenote: Droits of Admiralty.]
[14]In England, at present, however, these liberal principles are
modified by Rights of Admiralty, the foregoing rules being applied
rather to property upon the land than _within the territory_; for
although, when captures are made in ports, havens, or rivers, within the
body of the country of the realm, the Admiralty is in reality excluded,
yet Prize Courts have uniformly, without objection, tried all such
captures in ports and havens within the realm; as in the case of ships
not knowing hostilities, coming in by mistake, before the declaration of
war or hostilities; all the ships of the enemy are detained in our ports, to
be confiscated as the property of the enemy, if no reciprocal agreement
is made.[15]
[Sidenote: Hostile Embargo.]
This species of reprisal is termed a Hostile Embargo. It cannot well be
distinguished from the practice of seizing property found within the
territory upon the declaration of war. It is undoubtedly against the spirit
of modern liberality, and has been but too justly reprobated as
destroying that protection to property which the rule of faith and justice
gives it, when brought into the country in the course of trade, and in the

confidence of peace.
It is not, however, as Wheaton states, peculiar to England, but common
to modern Europe, except that England does not, in practice, appear to
be influenced by the corresponding conduct of the enemy in that
respect.[16]
[Sidenote: Debts Due to and from an Enemy.]
But with relation to Debts Due to an Enemy, previous to hostilities,
English law follows a wiser principle.
On the outbreak of war between Denmark and this country in 1807, the
Danish Government, as a measure of retaliation for the seizure of their
ships in our ports, issued an ordinance sequestrating all debts due from
Danish to British subjects, causing them to be paid into the Danish
Royal Treasury.
The Court of King's Bench decided that this was not a legal defence to
a suit in England for the debt, and that the ordinance was not
conformable to the Law to Nations.[17] It was observed by the Court,
that the right of confiscating debts (contended for on the authority of
Vattel,)[18] was not recognised by Grotius,[19] and was impugned by
Puffendorf and others; and that no instance had occurred of the exercise
of the right, (except the ordinance in question,) for upwards of a
century. This is undoubtedly the law in England, although it may be
doubted if this rule still holds so strongly in the United States.
[Sidenote: Interruption of Intercourse; Trading with the Enemy
unlawful.]
One of the most immediate consequences of the outbreak of hostilities
is the complete interruption of Commercial Intercourse between the
subjects of the countries at war, even to the extent of holding it
unlawful, after war has begun, except under special licence of the
government, to send a vessel to the enemy's country to bring home,
with _their permission_, one's own property, when war has broken out.
There cannot exist at the same time a war for arms and a peace for
commerce; from the very nature of war all commercial intercourse
ceases between enemies. This interdiction of intercourse is the result of
the mere operation of war; for declarations of war generally enjoin on
every subject the duty of attack on the subjects of the hostile state, of
seizing their goods, and doing them every harm in their power.[20]
From the very nature of war itself, all commercial intercourse ceases

between enemies. The utility, however, of merchants, and the mutual
wants of nations, have almost got the better of the law of war as to
commerce. Hence, commerce is alternately permitted and forbidden in
time of war, as princes think it most for the interest of their subjects. A
commercial nation is anxious to trade, and accommodate the laws of
war to the greater or lesser want that it may have for the goods of the
other. Thus sometimes a mutual commerce is permitted generally;
sometimes as to certain merchandizes only, while others are prohibited;
and sometimes it is prohibited altogether. In this manner there is partly
peace and partly war, between subjects of both countries.[21]
In the case of the Hoop,[22] Sir Wm. Scott says,
"By the law and constitution of Great Britain, the Sovereign alone has
the power of declaring War and Peace. He alone, therefore, who has the
power of entirely removing the state of war, has the power of removing
it in part, by permitting, when he sees proper, that commercial
intercourse, which is a partial suspension of the war. There may be
occasions