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3). Wherever that is permitted, it is a suspension of the state of war, quoad hoc. It is, as he expresses it, pro parte sie bellum, pro parte pax inter subditos utriusque principis.
By the law and constitution of this country, 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, where he sees proper, that commercial intercourse which is a partial suspension of the war. There may be occasions on which such an intercourse would be highly expedient, but it is not for individuals to determine on the expediency of such occasions, on their own notions of commerce, and of commerce merely, 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. In my opinion, 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 color 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 merchant should be compelled, in such a situation of the two countries, to carry on his trade between them (if
Contracts suspended be
Courts closed against their
necessary) under the eye and control of the govern ment, charged with the care of the public safety? 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 that 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 alien enemy carries with it a disability to sue, or to sustain, in the language of the civilians, a persona standi in judicis. The peculiar law of our own country applies this principle with great rigor.
"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, a pass, or some other act of public authority, that puts him in the king's peace, pro hac vice. But otherwise he is totally ex lex. Even in the case of ransoms, which were contracts, but contracts ex jure belli, and tolerated as such, the enemy was not permitted to sue in his own proper person, for the payment of the ransom bill, but 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, cannot be a state of legal commerce. If the parties who are to contract have no right to compel the performance of the contract,
nor even to appear in a court of justice for that purpose, can there be a stronger proof that the law imposes gal disability to contract? To such transactions it gives no sanction. They have no legal existence, and the whole of such commerce is attempted without its protection and against its authority. Bynkershoek expresses himself with great force upon this argument, in his first book, chapter 7, where he lays down, that the legality of commerce, and the natural use of courts of justice, are inseparable. He says that cases of commerce are undistinguishable from cases of any other species, in this respect. Si hosti semel permittas actiones exercere, difficile est distinguere, ex qua causa oriantur, nec potui animadvertere illum distinctionem unquam usu fuisse servatam.
"Upon these, and similar grounds, it has been the established rule of the law of this court, confirmed by the judgment of the Supreme Court, that a trading with the enemy, except under a royal license, subjects the property to confiscation, and the most eminent persons of the law, sitting in the supreme courts, have uniformly sustained such judgments.
"In all cases of this kind which have come before this tribunal, they have received a uniform determination. The cases which I have produced, prove that the rule has been rigidly enforced where acts of Parliament have, on different occasions, been made to relax the navigation law and other Relaxation of revenue acts, where the government has authorized, pension of under the sanction of an act of Parliament, a homeward trade from the enemy's possessions, but has cases. not specifically protecte an outw. r trade to the
the rule of sus
commerce in particular
same, though intimately connected with that homeward trade, and almost necessary to its existence; that it has been enforced where strong claim, not merely of convenience, but almost of necessity, excused it on behalf of the individual; that 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, and that it has been enforced not only against the subjects of the crown, but likewise against those of its allies in the war, upon the supposition that the rule was founded on a strong and universal principle, which allied states in war had a right to notice and apply mutually to each other's subjects. Indeed, it is the less necessary to produce these cases, because it is expressly laid down by Lord Mansfield that such is the maritime law of England."
The rigid interdiction of commercial intercourse between belligerents has, in England, been carried to the extent of prohibiting the remittance of supplies to a British colony, while it was under the temporary subjection of the enemy. Grenada, a British possession, had been seized by the French, but by the public enactments, both of France and Great Britain, the island was not considered to have entirely lost its national character-for French or dinances had been made regarding it, inconsistent with its being considered a strictly French posses sion; and it had been enacted by the British Parlia ment, for the expressed purpose of giving relief to the proprietors of estates there, that no goods of
1 Gist. vs. Mason, 1 T. R. 86.
the produce of Grenada, on board of neutral vessels, going to neutral ports, should be liable to condemnation as prize.
Notwithstanding these legislative declarations, that the character of Grenada was not to be regard ed as strictly hostile, and notwithstanding the express permission to export the productions of the island, a neutral vessel sent from England with goods to be imported into Grenada, was seized, as engaged in unlawful intercourse with the enemy, and condemned in the vice-admiralty court of Barbadoes. The sentence of condemnation was confirmed upon appeal to the privy council.1
ions of courts
A similar strictness has been adopted, in the ap- Strictness of plication of the principle, by the courts of admir- rule by decis alty of the United States. An American citizen of the United had purchased goods in a British possession, prior to the commencement of hostilities between the two countries, and had deposited them on an island near the frontier. After the breaking out of hostilities, he chartered a vessel to proceed to the island and carry his merchandise to a port in the United States. On her return with the cargo, the vessel was captured, and vessel and cargo were condemned.2
Upon the confirmation of the judgment of condemnation, on appeal to the Supreme Court, the entire recognition of the principle of commercial non-intercourse between belligerents is thus clearly expressed.
"Whatever relaxations of the strict rights of war have been established by the more mild and miti
1 The Bella Guidita, 1 Rob., 207.
The Rapid, 8 Cranch, 155.