had the power of relaxing it by permitting such commercial intercourse. There might be occasions on which such an intercourse would be highly expedient; but it was for the State alone, and not for individuals, to determine this. No principle ought to be held more sacred than that such intercourse could not subsist on any other footing than the direct permission of the State. Otherwise great public inconvenience might ensue; whilst there was but little inconvenience in requiring merchants, in such a situation, to carry on trade (if necessary) under the control of the Government. There was, moreover, another principle of a less public nature, but equally general in its reception, which forbad this sort of communication as fundamentally inconsistent with the relation between two countries at war. That was the total inability, on the part of subjects of one country to sustain any contract by way of appeal to the tribunals of the other. In the law of almost every country the character of alien enemy carried with it a disability to sue, or to sustain a persona standi in judicio. The peculiar law of our own country applied this principle with great rigour; and it was equally received in our own Courts as the law of nations. But a state of things in which contracts could not be enforced could not be a state of legal commerce. Upon these and similar grounds, it had become an established rule of the Court that trading with the enemy, except under the royal licence, subjected the property involved to confiscation. After an exhaustive review of the authorities the learned Judge proceeded to show, that this rule had also been uniformly followed in the Court of Admiralty and sustained in the Courts of Appeal; that it had been rigidly enforced in the construction of relaxations even when granted by or under the authority of statute; and that it had been enforced not merely against British subjects but also against the subjects of States which were our allies in war, on the supposition that it was founded on a universal principle which States allied in war had a right to apply mutually to each other's subjects. In order to take a case out of the rule there must be legal distinctions and not merely considerations of indulgence; and inasmuch as there did not appear to be any such distinctions in the present case the claim for restitution must be refused.

The rule of non-intercourse is here again presented as a common principle of maritime law, justified alike on grounds of reason and by common practice, and enforceable internationally (f). Both under the English and the American law, all trading between persons respectively resident in the national and in enemy territory is forbidden under pain of confiscation, which will affect not only the goods but also the vessel that carries them if it belongs to subjects or citizens.

And this is applied not merely to trading properly so called, but to all traffic between the home and the enemy country (g). So rigidly is this rule interpreted that during the Spanish-American war, 1898, a question arose as to the legality of the despatch of scientific papers and journals by American societies to Spanish correspondents; although in the result it was officially intimated that there was no objection to a continuance of the practice, provided no information was furnished which was likely to be of use in war (h).

As to merchandise, all goods passing directly between subjects and enemies will be confiscable; and this, whether they are coming from or proceeding to the enemy (i); and, in the latter case, whether the hostile destination is immediate or ultimate (k). But the rule will not apply when the trading is carried on in the interest of the national forces (1). Nor will it apply where there has been a genuine transfer to a neutral owner, even though the property ultimately comes from or is proceeding to, an enemy (m). Nor, finally, will it apply to a mere wish or intention to trade, in a case where the illegality of the destination is changed by circumstances of the war (n).

As to ships, under the same rule, any vessel belonging to subjects will be liable, if after notice of the war she sails from, or to, or even touches at, an enemy port (o). But a vessel carrying cargo to a neutral port will not be liable merely because the cargo or some part of it is intended by the shippers, and without the cognisance of those responsible for the vessel, to be sent on to the enemy country (p).

Apart from trading ventures, moreover, all contracts or other transactions entered into after the war between persons respectively resident in British and enemy territory are treated as illegal and void. So, in Willison v. Patteson and others, 7 Taunt. 439-where, during war between Great Britain and France, a French citizen had drawn on the defendants, who were British subjects, certain bills of exchange,

(f) As between allies in war. (g) The Rapid, Cranch, 155; and The Venus, 8 Cranch, 253.

(h) Moore, Digest, vii. 243. (i) The Venus, 8 Cranch, 253. (k) Even though they may be shipped in the first instance to a neutral port: see The Jonge Pieter, 4 C. Rob. at 83; and The Mashona, 10 C. T. L. R. 450, although the goods in this case appear to have been already liable as enemy property. (1) The Madonna delle Gracie, 4 C. Rob. 195.

(m) Infra, p. 124.

(n) The Abby, 5 C. Rob. 251. (0) The Venus, supra; The Joseph, 8 Cranch, 451; Manual of Naval Prize Law, Arts. 44-47.

(p) In The Mashona the vessel was released on the ground that the presumption of an intention to trade with the enemy, arising from the fact of the ship carrying enemy goods consigned to Delagoa Bay, but destined for the enemy country, had been rebutted by the conduct of those responsible for the vessel. But see infra, pp. 525, 615.

which were endorsed to the plaintiff, a British subject resident in France, and subsequently accepted by the defendants-it was held that no action would lie on the bills, even though brought after the restoration of peace.

A similar invalidity will attach to contracts and transactions which, even though not themselves entered into with alien enemies, are yet incidental to or in furtherance of such illegal trading or intercourse. So, in Potts v. Bell, 8 T. R. 548, it was held that a policy of insurance entered into between British subjects, in relation to goods to be brought from the enemy country on behalf of the assured, was illegal and void as being in furtherance of trade with the enemy; and this even though the loss alleged under the policy arose from enemy capture.

The rule against trading with the enemy is also applied to subjects of an ally in war, on the ground that there is an implied obligation incumbent on each party not to do or allow its subjects to do anything injurious to the common cause (q); nor would a dispensation by the allied Government, even in favour of its own subjects, be recognised as a protection against British capture, unless consented to by Great Britain or unless the trading was of a kind that would not prejudice the common operations (r).

At the same time the British rule against trading with the enemy is, as we shall see, alleviated in practice (1) by the fact that the Sovereign has a right to mitigate the strict consequences of war in this respect by Orders in Council, which would be operative as an instruction to the naval forces and so binding on the Prize Courts (s); and (2) by the recognition of a right to trade through the medium of neutrals so long as there is a genuine transfer to the latter (t).

(iii) EXCEPTED TRANSACTIONS.

(1) BETWEEN ENEMIES NOT DIVIDED BY THE LINE OF WAR. KERSHAW v. KELSEY.

[100 Mass. 561; Scott, 654 (1868).]

Case.] IN 1864, during the American Civil War, the plaintiff, who was a citizen of and resident in Mississippi, leased to the defendant, who was a citizen of Massachusetts although at the time resident in Mississippi, a cotton plantation situated in the

(q) The Nayade, 4 C. Rob. 251.

(r) The Neptunus, 6 C. Rob. 403. (s) As indeed was done during the war with Russia, in 1854; see supra, p 97; infra, p. 125; Phillipson, Effect

of War on Contracts, 65 et seq.

(t) See p. 124, infra; and as to the Continental view of the doctrine of non-intercourse, p. 110, infra.

latter State, on certain terms and conditions, including the purchase by the defendant of certain corn then on the plantation. The defendant went into possession of the land, had the benefit of the corn, and paid the first instalment of rent. He also planted and sowed the land, but was subsequently driven out by rebel soldiers, and did not thereafter except for a short interval return to the plantation, but proceeded to Massachusetts. The plaintiff thereupon took charge of the plantation, and raised a crop of cotton thereon, which he subsequently delivered to the defendant's son in Mississippi, by whom it was forwarded to the defendant. After the war the plaintiff sued for the rent and the value of the corn. The defendant pleaded that the transaction, having been made during the civil war and between persons standing in a hostile relation to each other, was illegal and void, but on the principles of international law and under an Act and proclamation that forbad all intercourse with the States in rebellion. It was held, however, by the Supreme Court of Massachusetts that neither the lease nor the sale contravened either the law of nations or the public Acts of the United States Government; and that the plaintiff was therefore entitled to recover.

Judgment. Gray, J., stated as the result of an exhaustive review of the principal authorities, both English and American, that the law of nations, as judicially declared, no doubt prohibited all intercourse between citizens of the two belligerents which was inconsistent with the state of war between the two countries; including every kind of trading or commercial dealing, whether by transmission of money or goods or orders for the delivery of either, between the two countries, directly or indirectly, or through the intervention of third persons or partnerships, or by contracts in any form involving such transmission, or by insurances upon trade with or by the enemy. But the prohibition had not been carried beyond this, at any rate by judicial decision; and beyond this, therefore, the Court was not disposed to go, especially at a time when the tendency of the law of nations was to exempt individuals as far as possible from the consequences of war. The trading or transmission which was prohibited by international law was one between the two countries at war. An alien enemy residing in the

United States might contract or sue like a citizen. Moreover, when a creditor, although a subject of the enemy, remained in the country of the debtor or had an agent there throughout the war, payment to such creditor or agent would not be illegal, inasmuch as it was not made to an enemy within the contemplation of either international or municipal law. Nor was it any objection that the agent might remit the money to the enemy, for in that case the offence would be his. The same reasons applied to an agreement made in the enemy territory to pay money there out of funds accruing there. In the present case the lease was made within the rebel territory, where both parties were at the time. Nor was there any agreement for the transmission of money or goods, or for communication across the line dividing the belligerents. The subsequent forwarding of the cotton by the defendant's son might have been unlawful; but that could not affect the validity of the agreements contained in the lease.

66

In this case the American Court, whilst affirming generally the rule of non-intercourse, held it to be inapplicable to persons who, though enemies in point of nationality or allegiance, were resident in the territory of the same belligerent, and to transactions beginning and ending there." An alien enemy," it was said, “ residing in this country may contract and sue like a citizen" (u). And with this view the English law appears, in the main, to agree. So in Wells v. Williams, 1 Ld. Raym. 282, in an action on a bond-in which the defendant pleaded that the plaintiff was an alien enemy who had come to England sine salvo conductu, and the plaintiff replied that at the time of the making of the bond he was and still remained in England by the licence and protection of the Crown-it was held that an alien enemy who was here in protection could sue on his bond or contract, although an enemy abiding in his own country could not. And, in spite of some authority to the contrary (x), it would seem that the plea of alien enemy could not now be set up against subjects of a hostile State who, .even without express licence, continued to reside and to carry on business in British territory (y).

(u) As to rights of suit, see also Clarke v. Morey, 10 Johns. 69, and McVeigh v. U. S., 11 Wall. 259; Scott, 576.

(x) See Alcinous v. Nigreu, 4 E. & B. 217, where it was held that an

alien enemy residing without licence could not sue during the war.

(y) See Janson v. Driefontein Consolidated Mines [1902] A. C. at 505; and infra, p. 123.