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criminal offence has been committed, whether property belonging to British or allied subjects and seized as prize is subject to condemnation, or whether the object of a contract is or has become unlawful as involving 'trading with the enemy.' A better expression is 'intercourse with the enemy,' because, as we have seen, the intercourse to be obnoxious need not be commercial at all.

Before we consider some of the particular contracts which are most likely to involve 'trading with the enemy,' let us glance at the general provisions of the common and maritime laws and of recent statutes, aimed at prohibiting this intercourse.

A. By the common and maritime laws.

Whatever may have been the original reasons for the prohibition-whether you base it on the ground that war is a relation between subjects as well as between states or on the ground that intercourse might inure to the benefit of the enemy, it is plain that modern public opinion demands that intercourse across the line of war should be prohibited.

Lord Mansfield, whose indulgent, doctrinaire views upon 'trading with the enemy,' particularly in the matter of insurance, would have earned for him to-day a most unenviable reputation, draws attention in Gist v. Mason1 to two early references to the subject. In 2 Rolle's Abridgement, 173, Guerre, we read of a licence granted in the thirteenth year of the reign of Edward II 'to certain men to go and sell and buy their merchandise in Scotland which was then an enemy of the King,' a thing which was evidently illegal without such a licence, and in the reign of William III we hear that the king's judges were asked whether it was a crime to carry corn to the enemy in time of war and replied that it was a misdemeanour. The whole matter was examined in The Hoop2 where the prohibition is rested by Lord Stowell on two grounds, (1) a general rule of our maritime law in accordance too with the law of nations prohibiting commercial intercourse with an enemy unless specially authorized by the state: and (2) the fact that such 1 (1786) 1 T. R. 88. 2 (1799) I C. Rob. 196.

intercourse is fundamentally inconsistent with a state of war because 'the character of alien enemy carries with it a disability to sue or sustain in the language of the civilians a persona standi in judico.' Further, the case shows that innocence or ignorance is no defence, for the claimants to the condemned property-Glasgow merchants-had been informed by customs officials that existing Orders in Council permitted this trade with Rotterdam, though we were at war with Holland1. In Esposito v. Bowden2 Willes J. says

'the presumed object of war being as much to cripple the enemy's commerce as to capture his property, a declaration of war imports a prohibition of commercial intercourse and correspondence with the inhabitants of the enemy's country, and such intercourse, except with the licence of the Crown, is illegal.'

Reference should also be made to an article in the Law Quarterly Review of January 1915, entitled 'Intercourse with Alien Enemies,' by Dr T. Baty who concludes that the reason of the prohibition is, not that given by Willes J. nor ‘any abstract theory of individual hostility,' but mainly, if not ' entirely...the danger and impossibility of permitting intimate intercourse between the subjects of enemy States3.'

The prohibition applies equally to the subjects of an ally as to British subjects and will be enforced by British courts against them.

A century ago and earlier when the orthodox view of 'trading with the enemy' was not nearly so strict as it now is, it was customary to relax the general prohibition by granting either to British and enemy subjects 'licences to trade' which had the effect of legalizing pro tanto intercourse with the enemy and incidentally making enforceable contracts involving intercourse or collateral to it. Similarly neutral subjects sometimes received licences dispensing with the strict requirements of the law of Contraband or Blockade. The case-law which is built up round

1 See also for innocence The Panariellos (1915) 31 T. L. R. 326; (1916)

32 T. L. R. 459.

2 (1857) 7 E. & B. 763.

3 L. Q. R. XXXI. 49.

The Panariellos (supra); Kreglinger v. Samuel and Rosenfeld (1915) 31 T. L. R. 592.

these practices will be found in recognized text-books upon International Law and need not detain us, as, so far as the recent war is concerned, the practice of licensing trade with the enemy was not revived and the law is mainly of historical interest. It is however interesting to note, that during the earlier part of the recent war a number of booksellers in this country received from the Crown licences to procure books of enemy origin, and that these licences were exercised by invoking the aid of a bookseller in a neutral country. He was probably a principal in buying from the enemy bookseller and selling to the British one, but this is nevertheless 'trading with the enemy' and, unless licensed, would have been illegal and criminal. Later in the recent war this practice was abandoned and enemy books of this character were obtainable upon application to H.M. Stationery Office who procured them presumably through our diplomatic or consular representatives in neutral countries. What then are the penalties and disabilities attaching to 'trading with the enemy'?

(a) In prize, the goods involved in the transaction and belonging to a British or allied1 subject may be seized and condemned.

(b) Criminally, it would appear from the answer of the Judges quoted in Gist v. Mason2 to be at least a common law misdemeanour, and if it amounted to High Treason (as it might) it would entail the peculiar consequences which distinguish this form of crime and are none the less pleasant to the victim because archaic and picturesque.

(c) There is the sanction of nullity in that the contract will not be enforced, whether it was made before the war or attempted to be made during it3, and the effect upon collateral and incidental contracts is the same1.

B. By Statute and Royal Proclamation.

It is not possible to state definitely whether the Trading with the Enemy legislation passed during the recent war can be

1 The Panariellos (supra). Esposito v. Bowden (supra).

2 Supra.

4 Potts v. Bell (1800) 8 T. R. 548.

regarded as purely of an emergency character, or whether, with or without further enactment perpetuating some or all of it, we must treat it as a permanent part of our statute law. The legislation falls mainly into two groups, the object of the earlier group, the Trading with the Enemy Act, 1914, and the Amendment Acts of 1914 and 1915, being broadly to prevent intercourse with the enemy across the line of war, and that of the later group, the Trading with the Enemy (Extension of Powers) Act, 1915, and the Amendment Acts of 1916 and 1918, being broadly to stamp out enemy commercial influence and operations in this country and elsewhere. The line of distinction between the two groups is not hard and fast, and it is with the earlier one that we are now concerned.

Firstly, as to its duration. The statutes do not contain the clause commonly found in the emergency statutes limiting their duration to a period expiring six months after the termination of the war1 or at some similar period. The first and principal Act2 by its first and main operative clause imposes penalties upon any person who 'during the present war' trades or has traded with the enemy. Again, several clauses of the Amendment Act, 19143 are limited to 'the present war,' but there seems to be no reason why the appointment of the Public Trustee as Custodian of enemy property, as distinct from his functions in respect of property vested in him during the recent war, should not survive the period of the war and the ensuing tidying up. With regard to the Trading with the Enemy Proclamations, there can hardly be any doubt of their evanescent character. However that may be, it is worth our while now to spend a few minutes in glancing at the principal provisions of these statutes and Proclamations which bear upon the offence of 'trading with the enemy,' while later on in dealing with Companies we shall have something to say upon the provisions in these statutes which relate to state supervision and control of enemy businesses.

1 Which, as the Termination of the Present War (Definition) Act, 1918, shows, is a very movable feast.

2 4 & 5 Geo. V, ch. 87.

3 5 Geo. V, ch. 12.

How far it is open to the Executive, without statutory powers, to extend the category of prohibited trading operations or of enemies for that purpose beyond the scope recognized by our municipal law, is happily academic; for the Trading with the Enemy Act, 1914, s. 1 (2) gives statutory force, both retrospectively and prospectively, to any Proclamation dealing with trading with the enemy, and recognizes three classes of acts as constituting trading with the enemy, namely, any transaction or act

'(1) which was, at the time of such transaction or act, prohibited by or under any proclamation...dealing with trading with the enemy for the time being in force, or (2) which at common law or (3) by statute constitutes an offence of trading with the enemy.'

The numerous proclamations will be found in the general Manual of Emergency Legislation with Supplements and the specialized Manuals into which in the course of the war it was subdivided. The principal proclamation, that known as Trading with the Enemy Proclamation No. 2, of the 9th September, 1914, is printed as an Appendix to this chapter. Many of its particular provisions prohibiting this or that transaction are referred to in the following pages, and we may refer here to its more general contents.

(a) The definition of 'enemy' is naturally territorial rather than personal, though the personal aspect develops later. After undergoing constant modification in successive proclamations it may perhaps fairly be summarized as follows: any person or body of persons of whatever nationality (even British), (and, if incorporated, wherever incorporated) resident or carrying on business in the enemy country or in territory in hostile occupation1, and person or body of persons of enemy nationality resident or carrying on business (and, if incorporated, wherever incorporated) in China, Siam, Persia, Morocco, Liberia, or Portuguese East Africa, but not if resident or

1 'Territory in hostile occupation' and 'territory in friendly occupation' are defined by the Proclamation (No. 140) of 16th February, 1915. See also Soc. An. Belge des Mines v. Anglo-Belgian Agency [1915] 2 Ch. 409 (C. A.), and Central India Mining Co. Limited v. Société Coloniale Anversoise (1919) 35 T. L. R. 587.

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