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was made to protect it by dividing the voyage, so that the cargo should be taken in the first instance to a neutral port, from which it might or might not thereafter, be carried to the place of its real destination—the port and market of the enemy. Upon a capture being made, it was condemned to the captors. In his opinion in this case, Lord Stowell says: “Without the license of government, no communication, direct or indirect, can be carried on with the enemy. Where no rule of law exists, a sense or feeling of general expediency, which is, in other words, common sense, may be fairly applied; but where a rule of law interferes, these are considerations to which the court is not at liberty to advert. In all the cases that have occurred on this question, and they are many, it has been held indubitably clear, that a subject cannot trade with the enemy without the special license of the government. The interposition of a prior port makes no difference; all trade with the enemy is illegal; and the circumstance that the goods are to go first to a neutral port, will not make it lawful; the trade is still liable to the same abuse, and to the same political danger, whatever that may be.”
In another case, an attempt was made to protect property purchased in the country of the enemy, by the employment of a neutral intermediary; but upon capture, it was condemned as lawful prize, the neutral being regarded in such case, as the mere agent, the property being considered, in legal intendment, as passing directly from the enemy to the purchaser.
* The Jonge Pieter, 4 Rob., 79.
In another case, an attempt was made to elude the rule by carrying on the trade with the enemy by a firm consisting partly of neutrals and partly of belligerents, but it was held that “even an inactive or sleeping partner, as it is termed, cannot receive restitution in a transaction in which he could not lawfully be engaged as a sole trader."'l *
The early decisions in the English common law courts in which the doctrine of the illegality of commercial intercourse between belligerents was involved, were not in entire conformity with the principle as established in the admiralty. But a uniformity of decision was definitively determined
by Lord Kenyon in a later case, in which he says:
is illegal, that the question may be considered
of the court in more formal terms." Rule of sug
gus. ' The reasons on which the principle is established, pension in which interdicts commercial intercourse between plicable on belligerents, make it equally applicable, whether and as well as
that intercourse be conducted upon the land or by
i The Franklin, 6 Rob., 131.
? Gist vs. Mason, 1 Term R., 84; Bell vs. Gibson, 1 Bos. &
3 Potts vs. Bell, 8 Term R., 548.
** the rule with
to the note in Rolle, says: “What the common law of England may be, it is not necessary, nor perhaps proper, for me to inquire; but it is difficult to conceive that it can, by any possibility, be otherwise, for the rule in no degree arises from the transaction being on the water, but from principles of public policy, and of public law, which are just as weighty on the one element as on the other, and of which the cases have more frequently happened upon the water, merely in consequence of the insular situation of this country.”
Although the rule of prohibition of commercial intercourse between belligerents is applied by courts of admiralty in the exercise of prize jurisdiction with the utmost rigor and strictness, yet in many Rigorous encases which have arisen, the disposition has been forcement of clearly manifested not to extend the rule beyond in its just
limits. the limits required by a just consideration of the reasons and policy upon which it is founded.
The ship Abby sailed from a port in England for Cases illustra the island of Demerara, then a Dutch colony, on ting the
ner of its en the 11th of September, 1795. War was declared forcement. with Holland on the 16th of the same month, and, of course, Demerara became, ipso facto, a hostile possession. The ship was captured off its coast, in May, 1796; but in the meanwhile the island had surrendered to a British force, and consequently had become a British colony.
It was held by Lord Stowell that, as the port to which the ship was destined did, at the time of her carrying the design into effect, belong, not to an enemy, but to his Britannic Majesty, the ship was not to be deemed in fact an illegal trader.1
* The Abby, 5 Rob., 251.
. “I conceive," said he, “that there must be an act
of trading to the enemy's country, as well as the intention; there must be, if I may so speak, a legal as well as a moral illegality. If a man fires a gun at sea, intending to kill an Englishman, which would be legal murder, and does not kill an Eng. lishman, but an enemy, the moral guilt is the same, but the legal effect is different—the accident bas turned up in his favor—the criminal act intended has not been committed, and the man is innocent of the legal offence. So, if the intent was to trade with the enemy (which I have already observed cannot be ascribed to the party at the commence. ment of the voyage, hostilities not having then been declared), but at the time of carrying the design into effect, the person is become not an enemy —the intention here wants the corpus delicti.
“No case has been produced in which the mere intention to trade with the enemy's country, contradicted by the fact of its not being an enemy's country, has enured to condemnation. Where a country is known to be hostile, the commencement of a voyage toward that country may be a sufficient act of illegality; but where the voyage is undertaken without that knowledge, the subsequent event of hostility will have no such effect. On principle, I am of opinion that the party is free from the charge of illegal trading.”
English merchants shipped on board a Spanish vessel bound from London to Corunna, a quantity of merchandise, to the order of Spanish merchants. Shortly after the shipment, and the voyage had commenced, hostilities were declared between Great Britain and Spain, and on the voyage the vessel was
seized by a British captor. Lord Stowell decreed restitution of the property to the shippers, saying: “The English merchants who shipped the goods were not called upon to know that the injustice of the other party would produce a war before the goods were delivered—the goods were to have been at the risk of the shippers till delivery—and the contract was perfectly fair.”
In all cases, however, in which voyages have been commenced for trade with the enemy's coun. try before the breaking out or declaration of hostilities, it is incumbent upon the claimants whose property is captured, to show that on the first notice of hostilities, all diligence possible was employed to effect a countermand of the voyage, or to change the destination of the vessel, so as to avoid the culpability of an illegal trading with the enemy. If such exertions have not been made, and if, either through neglect or design, the goods have been allowed to leave the enemy's country, no excuse, based upon individual inconvenience, or the necessity or policy of withdrawing property out of the country of the enemy, can of strict right avail, to avert a judgment of condemnation upon a capture.
It was held in the case before cited, of Bell vs. Gibson, that if an Englishman, at the commencement of hostilities, have merchandise in an enemy's country, he might withdraw it therefrom. But, as we have seen, the later case of Potts vs. Bell, reversed that doctrine, and it was there definitively established that trading with the enemy is ground
'The Packet De Bilboa, 133,