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

on which such an intercourse may be highly expedient; but it
is not for individuals to determine on the expediency of such occasions,
on their own notions of commerce only, and possibly on grounds of
private advantage not very reconcilable with the general interests of the
state. It is for the state alone, on more enlarged views of policy, and of
all circumstances that may be connected with such an intercourse, to
determine when it shall be permitted, and under what regulations. No
principle ought to be held more sacred than that this intercourse cannot
subsist on any other footing than that of the direct permission of the
state. Who can be insensible to the consequences that might follow, if
every person in time of 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