The Laws of War, Affecting Commerce and Shipping

by H. Byerley Thomson

"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 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]