the absolute interruption and interdiction of all commercial correspondence, intercourse, and dealing between the subjects of the two countries. The idea that any commercial intercourse or pacific dealing can lawfully subsist between the people of the powers at war, except under the clear and express sanction of the government, and without a special license, is utterly inconsistent with the new class of duties growing out of a state of war. (a) The interdiction flows necessarily from the principle already stated, that a state of war puts all the members of the two nations respectively in hostility to each other; and to suffer individuals to carry on a friendly or commercial intercourse, while the two governments were at war, would be placing the act of government and the acts of individuals in contradiction. to each other. It would counteract the operations of war, and throw obstacles in the way of the public efforts, and lead to disorder, imbecility, and treason. Trading supposes the existence of civil contracts and relations, and a reference to courts of justice; and it is, therefore, necessarily contradictory to a state of war. It affords aid to the enemy in an effectual manner, by enabling the merchants of the enemy's country to support their government, and it facilitates the means of conveying intelligence, and carrying on a traitorous correspondence with the enemy. These considerations apply with peculiar force to maritime states, where the principal object is to destroy the marine and commerce of the enemy, in order to force them to (a) The doctrine goes to the extent of holding it unlawful, after the commencement of war, except under the special license of the government, to send a vessel to the enemy's country to bring home, with their permission, one's own property, which was there when the war broke out. It would be liable to seizure, in transitu, as enemy's property. The Rapid, 8 Cranch, 155; Potts v. Bell, 8 T. R. 548. In the case of The Juffrow Catharina, 5 C. Rob. 141, and of The Hoop, 1 C. Rob. 196, Sir William Scott inculcated very strictly the duty of applying in all cases for the protection of a license, where property is to be withdrawn from the country of the enemy, as being the only safe course. Mr. Duer, in his Treatise on Insurance, i. 561-566, ably and successfully contends that, when a subject finds himself in an enemy's country on the breaking out of war, he may return diligently to his country, with his property, without rendering it justly liable to confiscation by the prize courts of his own country; though the language of Mr. Justice Story, in the case of The Rapid in 1 Gallison, 309, and The Mary, [ib.] 621, goes to the extent of the severe denial of that right under any circumstances. If the adverse belligerent allow such a right, as see supra, 56, surely his own country ought to exercise the same lenity. Such was the decision of the Supreme Court of New York in Amory v. McGregor, 15 Johns. 24. The peace. (b) It is a well settled doctrine in the English courts, and with the English jurists, that there cannot exist, at the same time, a war for arms and a peace for commerce. war puts an end at once to all dealing and all communication with each other, and places every individual of the respective governments as well as the governments themselves, * 67 in a state of hostility. (a) This is equally the doctrine of all the authoritative writers on the law of nations, and of the maritime ordinances of all the great powers of Europe. It is equally the received law of this country, and was so decided frequently by the Congress of the United States during the Revolutionary war, and again by the Supreme Court of the United States during the course of the last war; and it is difficult to conceive of a point of doctrine more deeply or extensively rooted in the general maritime law of Europe, and in the universal and immemorial usage of the whole community of the civilized world. It follows as a necessary consequence of the doctrine of the illegality of all intercourse or traffic, without express permission, that all contracts with the enemy, made during war, are utterly void. The insurance of enemy's property is an illegal contract, (b) 1 Chitty Comm. Law, 378. (a) Potts v. Bell, 8 T. R. 548; Willison v. Patteson, 7 Taunt. 439; Story, J., in The Joseph, 1 Gall. 549, 550; in The Julia, ib. 601-603; Jonge Pieter, 4 C. Rob. 79; The Hoop, 1 C. Rob. 199, 217; The Rapid, 1 Gall. 305. 1 This language has been thought too broad in at least one important decision. During the late rebellion, a citizen and resident of Mississippi made a lease of a cotton plantation there to a citizen of Massachusetts, who was then in Mississippi. The lessee took possession and paid rent under the lease, but was afterwards driven off by rebel soldiers. In an action for the rent in arrear, the Supreme Court of Massachusetts held the lease valid. The court say, "that the law of nations, as judicially declared, prohibits all intercourse between citizens of the two belligerents which is inconsistent with the state of war between their countries; and that this includes any act of voluntary submission to the enemy, or receiv ing his protection; as well as any act or contract which tends to increase his resources; and every kind of trading, or commerical dealing or intercourse, 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 looking to or involving such transmission, or by insurances upon trade with or by the enemy. Beyond the principle of these cases the prohibition has not been carried by judicial decision." Kershaw v. Kelsey, 100 Mass. 561, 572. In this case all the authorities are reviewed. Inter alia the remarks in Jecker v. Montgomery, 18 How. 110, and because it is a species of trade and intercourse with the enemy. The drawing of a bill of exchange by an alien enemy, on a subject of the adverse country, is an illegal and void contract, be do not contemplate any trading across the lines. Conrad v. Waples, 96 U. S. 279; Mitchell v. United States, supra; Brown v. Gardner, 4 Lea, 145. This was held in Conrad v. Waples, supra, though the property sold was within the enemy's lines. But see dissenting opinion of Clifford, J., in Burbank v. Conrad, 96 U. S. 291, 293. Either country may license trading with the other under such restrictions as it may deem best. Hamilton v. Dillin, 21 Wall. 73; Snell v. Dwight, 120 Mass. 9. Contracts having for their object to aid the enemy are of course void. Brickell v. Halifax County Commissioners, 81 N. C. 240. As to the dissolution of partnerships of which part of the partners were domiciled in enemy's country, see Matthews v. McStea, 91 U. S. 7; Taylor v. Hutchinson, 25 Gratt. 536. In general, as to the position held by the states in rebellion, see Horn v. Lockhart, 17 Wall. 570; Coleman v. Tennessee, 97 U. S. 509; Berry v. Bellows, 30 Ark. 198; Shattuck v. Daniel, 52 Miss. 834; Pennywit v. Foote, 27 Ohio St. 600.- B.] Hanger v. Abbott, 6 Wall. 532, are said to be obiter dicta, and the Ouachita Cotton, 6 Wall. 521, is explained as a case of a sale of merchandise which was strictly an act of commercial intercourse. Perhaps similar explanations would suffice for Coppell v. Hall, 7 Wall. 542; United States v. Grossmayer, 9 Wall. 72 (appointment of an agent during the war); Hennen v. Gilman, 20 La. An. 241; Graham v. Merrill, 5 Coldw. 622. Among the strongest cases against the doctrine of Kershaw v. Kelsey are Hyatt v. James, 2 Bush (Ky.), 463; Phillips v. Hatch, 1 Dillon, 571; Filor's Case, 3 Ct. of Cl. 25; iii. 256, n. 1. [Kershaw v. Kelsey is cited with apparent approval in Montgomery v. United States, 15 Wall. 395, which also holds that the line of division between friendly and hostile country is that of actual military control, and not that of states which may be friendly or hostile. See also United States v. Lapène, 17 Wall. 601. It has been held that the question of legality is to be determined by the legal domicile of the parties. Hence where a person went from the Union into the Rebel lines, and traded there, but did not change his domicile, and afterwards returned to the Union lines, held, such trading was illegal and void. Mitchell v. United States, 21 Wall. 350; Desmare v. United States, 93 U. S. 605; Quigley v. United States, 13 Ct. of Cl. 367. This, it is to be noted, is a different test from that stated in Kershaw v. Kelsey, and it seems that both tests are to be applied before a contract is held valid. If the latter were the only test, two persons retaining their domiciles in the same country might trade across the lines. Either country will recognize as valid contracts entered into wholly between parties domiciled and resident in one of the countries, and which The distinction as to contracts made before the war seems to be that suggested by the text; that those contracts are dissolved which cannot be performed except in the way of commercial intercourse. The William Bagaley, 5 Wall. 377, 407; and cases infra; 1 Duer Ins. Lect. 4, note 2 ad fin. p. 478; De Wahl v. Braune, 1 Hurlst. & N. 178, 182. Thus the relation of principal and agent between one in the North and another in the South was not suspended or dissolved during the rebellion. Monsseaux v. Urquhart, 19 La. An. 482. See Robinson v. International Life Ass. Co., 42 N. Y. 54; United States v. Grossmayer, 9 Wall. 72, 75. Nor were contracts of insurance. Manhattan Life Ins. Co. v. Warwick, 20 Gratt. 614, 634; The purchase of cause it is a communication and contract. bills on the enemy's country, or the remission and deposit of funds there, is a dangerous and illegal act, because it may be cherishing the resources and relieving the wants of the enemy. The remission of funds in money or bills to subjects of the New York Life Ins. Co. v. Clopton, 7 Bush, 179. On the other hand, a charter-party by which an Italian ship (neutral property in the subsequent war) was to proceed from England to Odessa, and there be furnished with a cargo by a British subject, was held to be dissolved by the breaking out of war between England and Russia, as it prima facie, at least, involved trading with the enemy. Esposito v. Bowden, 7 El. & Bl. 763; Barrick v. Buba, 2 C. B. N. s. 563; Reid v. Hoskins, Avery v. Bowden, 6 El. & Bl. 953. See further, iii. 256, n. 1. Other cases on the inability of an alien (x) Upon the commencement of a war, proceedings then pending in the courts should be continued, and not dismissed. Ex parte Boussmaker, 13 Ves. 71; Elgee v. Lovell, 1 Woolw. 102; Levine v. Taylor, 12 Mass. 8; Bishop v. Jones, 28 Texas, 294; contra, Howes v. Chester, 33 Ga. 89. An alien enemy may be sued, and is entitled to all the usual means of defence. Masterson v. Howard, 18 Wall. 99; McNair v. Toler, 21 Minn. 175. He may be bound, like other non-residents, by notice by publication. University v. Finch, 18 Wall. 106; Lee v. Rogers, 2 Sawyer, 549; Seymour v. Bailey, 66 Ill. 288; Selden v. Preston, 11 Bush, 191. He cannot defend, on the ground that he is an alien enemy. Dorsey v. Kyle, 39 Md. 512; see Herbert v. Rowles, id. 271. Where a person voluntarily left his home to engage in rebellion, it was held that neither he nor his heirs could complain that his absence deprived him of notice and power to defend judicial proceedings resulting in the sale of his land. Jenkins v. Hannan, 26 Fed. Rep. 657. enemy to sue (x) are Alcinous v. Nigreu, 4 El. & Bl. 217; Whelan v. Cook, 29 Md. 1; De Wahl v. Braune 1, H. & N. 178; United States v. 1756 Shares of Stock, 5 Blatchf. 231. The last case lays it down that he may appear as claimant in a prize case, and contest the allegations of the libel, a doctrine since sustained by the Supreme Court in a confiscation case. McVeigh v. United States, 11 Wall. 259. Contra, The Froija, Spinks, Pr. Ca. 37. It is clear that he may be sued. Dorsey v. Kyle, 30 Md. 512; ib. 522; Mixer v. Sibley, 53 Ill. 61; Ludlow v. Ramsey, 11 Wall. 581. A merchant who at the commencement of the civil war departed from his residence in Georgia to loyal territory, where he remained until the close of the war, but who left an agent behind who collected money for him and therewith purchased cotton for him, afterwards captured and sold by the United States, was held entitled to recover therefor in the Court of Claims, as he did not trade with the enemy across the lines. United States v. Quigley, 103 U. S. 595. A mortgage made in Confederate territory to a loyal citizen is not ipso facto such unlawful intercourse as avoids it without further proof of violation of the non-intercourse act and the President's proclamation thereunder. Carson v. Dunham, 121 U. S. 421; see Hart's Case, 16 Ct. Cl. 459. War does not terminate or suspend the obligation of a belligerent State to pay interest on its debts, even to alien enemies. See Cobbett's Int. Law Cases (2d ed.), 160. But war supersedes treaties and makes the subjects of the hostile States enemies in law. Valk's Case, 29 Ct. Cl.62. enemy is unlawful. The inhibition reaches to every communication, direct or circuitous. All endeavors at trade with the enemy, by the intervention of third persons, or by partnerships, have equally failed, and no artifice has succeeded to legalize the trade, without the express permission of the government. (b) Every relaxation of the rule tends to corrupt the allegiance *68 of the subject, and prevents the war from fulfilling its end. The only exception to this strict and rigorous rule of international jurisprudence is the case of ransom bills, and they are contracts of necessity, founded on a state of war, and engendered by its violence. (a) It is also a further consequence of the inability of the subjects of the two states to commune or carry on any correspondence or business together, that all commercial partnerships existing between the subjects of the two parties prior to the war are dissolved by the mere force and act of the war itself; though other contracts existing prior to the war are not extinguished, but the remedy is only suspended, and this from the inability of an alien enemy to sue or to sustain, in the language of the civilians, a persona standi in judicio. The whole of this doctrine, respecting the illegality of any commercial intercourse between the inhabitants of two nations at war was extensively reviewed, and the principal authorities, ancient and modern, foreign and domestic, were accurately examined, and the positions which have been laid down established, in the case of Griswold v. Waddington, (b) decided in the Supreme Court of New York, and afterwards affirmed on error. This strict rule has been carried so far in the British admiralty as to prohibit a remittance of supplies even to a British colony during its temporary subjection to the enemy, and when the colony was under the necessity of supplies and was only very partially and imperfectly supplied by the enemy. (c) The same (b) Willison v. Patteson, ubi supra; The Indian Chief, 3 C. Rob. 22; The Jonge Pieter, 4 C. Rob. 79; The Franklin, 6 C. Rob. 127. (a) There is another exception to the general rule, in the case of a war contract arising out of a public necessity, created by the war itself. This is the case of a bill of exchange drawn upon England by a British prisoner in France, for his own subsistence, and indorsed to an alien enemy, and which the latter, on the return of peace; was allowed to enforce. Antoine v. Morshead, 6 Taunt. 237. (b) 15 Johns. 57; 16 Johns. 438, s. c.; Scholefield v. Eichelberger, 7 Peters, 586, s. P. (c) Case of The Bella Guidita, in 1785, cited in the case of The Hoop, 1 C. Rob. 207. |