native of Great Britain, settled in America, had, for reasons alleged, temporarily returned to England. While in England he took a house for his wife, and then crossed over to France to collect some debts there. Some of the proceeds of such collection he invested in a cargo of butter, which he shipped for Lisbon. On its seizure by a British vessel, he claimed its release on the ground that he was an American subject. The Court decided that the claimant's mercantile connexion with America was held by such a mere thread that this plea could not be entertained. This was an independent and voluntary speculation in the enemy's trade, not to be regarded as originating in any purpose of remitting funds to America via England. The case of The Jonge Pieter (m) affords an instance of the condemnation of goods which, though shipped to a neutral port, were intended to be transmitted to the enemy's country. For if a trade be illegal in itself, no subterfuges in carrying it out will avail to remove from it this taint. In reply to a letter addressed to the Privy Council for Trade previous to the actual outbreak of hostilities in 1854, it was stated on 14th March, 1854, that, in the event of war, "every indirect attempt to carry on trade with the enemy's country will be illegal." And a few days afterwards (on 25th March), Lord Clarendon, in reply to the inquiry of a deputation of merchants engaged in trade with Russia, whether Russian produce brought over the frontier by land to Prussian ports, thence to be shipped to England, would be liable to British confiscation, stated that the question would turn upon the true ownership and destination of the property. And that such property, if shipped bonâ fide as neutral property, would not be liable to condemnation, whatever its destination; but if it should still remain enemy's property, though shipped (m) Supra, p. 260. from a neutral port in a neutral vessel, it would be condemned, whatever its destination. Further, that such property, "if it be British property, or shipped at British risk, or on British account, will be condemned if it is proved to be really engaged in a trade with the enemy, but not otherwise. The place of its origin will be immaterial, and if there has been a bonâ fide and complete transfer of ownership to a neutral (as by purchase in the neutral market), the goods will not be liable to condemnation, notwithstanding they may have come to that neutral market from the enemy's country, either overland or by sea." Moreover, that "circumstances of reasonable suspicion will justify capture, although release, and not condemnation, may follow; and ships with cargoes of Russian produce may not improbably be considered, under certain circumstances, as liable to capture, even though not liable to condemnation." And in a supplementary letter of 12th April, it was, inter alia, added that “It will be equally illegal for a British subject to trade with the enemy, whether he sends or receives the goods by sea or overland, and whether a blockade of the enemy's ports does or does not exist." But the above definite conclusions, both as regards enemy goods in neutral vessels, and trading with the enemy (by other than British vessels to enemy ports), were completely reversed by a proclamation dated only three days later, viz., on 15th April, 1854, that— "All vessels under a neutral or friendly flag, being neutral or friendly property, shall be permitted to import into any port or place in her Majesty's dominions all goods and merchandise whatsoever, to whomsoever the same may belong, and to export from any port or place in her Majesty's dominions to any port not blockaded any cargo or goods, not being contraband of war, or not requiring a special permission, to whomsoever the same may belong." Also that with certain named exceptions, viz., carriage of contraband, &c., "All the subjects of her Majesty, and the subjects or citizens of any neutral or friendly state, shall and may, during and notwithstanding the present hostilities with Russia, freely trade with all ports and places, wheresoever situate, which shall not be in a state of blockade, save and except that no British vessel shall under any circumstances whatsoever, either under or by virtue of this order, or otherwise, be permitted or empowered to enter or communicate with any port or place which shall belong to or be in the possession or occupation of her Majesty's enemies." On the outbreak of the Franco-German war, France permitted German vessels which had left Germany for French ports before the declaration of war to proceed and discharge unmolested, but if the vessels were bound to neutral ports they remained subject to capture (m). The Declaration of Paris has formulated the principle that an enemy's permissive goods carried under the neutral flag shall be exempt from capture; and if in the future the above general permission to trade should be re-established, the existing prohibitions against trading with the enemy will be greatly narrowed. If two countries, acting conjointly, carry on war against a third, it is equally illegal for subjects of either of the former to engage in trade with the common foe. Accordingly, either belligerent may seize and confiscate the property of subjects of his ally on finding it engaged in such trade. It would obviously be absurd for one of the allies to strictly apply the principles of warfare against, whilst the subjects of (m) Wheat. Int. Law, 2nd Eng. ed. 377. Tide State Papers, vol. 60, for diplomatic correspondence on this subject. the other ministered to the needs and comfort of, the common enemy. Though, of course, it would be open to the allies to make mutual concessions in this respect, by granting special licences so to trade, if a joint agreement should be come to in this sense. The Nayade (n) has already furnished an instance of the application of this principle, but a leading case on the subject is The Neptunus (0), which arose during the war between this country and Holland early in the present century. The vessel belonged to a subject of Sweden, one of the allies of Great Britain, and was seized by a British cruiser whilst on a voyage between Sweden and Amsterdam. It was claimed against the captors that a modified permission had been granted by the Swedish Government to trade with the common enemy in innocent articles; but Sir W. Scott, in decreeing condemnation, observed that while it is of no importance to other nations how much a single belligerent chooses to weaken and dilute his own rights, it is otherwise when allied nations are pursuing a common cause against a common enemy. "Between them it must be taken as an implied, if not an express, contract, that one state shall not do anything to defeat the general object." The cargo carried was pitch and tar-naval stores which, if not actually contraband, were clearly of a contraband nature. "In no instance," said the learned judge, " can the penalty of confiscation be applied with more propriety than in this first case which occurs, in which the parties exporting these articles to the enemy are British subjects domiciled in Sweden. It has been decided, both in this Court and in the Court of Appeal, that though a British subject resident abroad may engage generally in trade with the enemy, he cannot carry on such a trade in articles of a contraband nature. The duties of allegiance travel with them, so as to (n) P. 261, supra. (0) 6 Rob. 403. restrain them from supplying articles of this kind to the enemy." In The Benjamin Franklin (p), it was decided that a British pilot cannot sue in these Courts for wages alleged to be due to him for piloting a neutral vessel into a port of the enemy. A comparatively recent instance of trading with the enemy is afforded by The Neptune (q), a Russian vessel sold to a British subject during the progress of hostilities between this country and Russia. The vessel having arrived at Grimsby, under protection of the British Order in Council of 29th March, 1854, was there dismantled and laid up, and in this condition was sold. The purchase was adjudged illegal as being within the prohibition of trading with the enemy. The property of the subject of a belligerent state which is shipped by him, or for his account, on board a ship of the enemy, is liable to confiscation as being shipped in violation of the law against trading with the enemy (»). It has been held that the inhabitants of a state placed under the protection of a belligerent are at liberty to carry on commerce with the enemy. By a Treaty of Paris of 1815, the Ionian Islands were constituted a free and independent state under the exclusive protection of Great Britain. In the case of The Ionian Ships (s), it was held that the trade carried on with Russia during the Crimean war by the Ionian Islanders was not illegal, they not being either British subjects, allies in the war, or enemies of Russia (†). (p) 6 Rob. 350. (2) 26 L. T. 110. (r) Wheat. Int. Law, 2 Eng. ed. 530. (8) 2 Spinks' Ec. & Ad. 212. Vide also The Leucade, ibid. 229. |