the penalty of the rule. But the object, policy, and spirit of the rule are intended to cut off all communication, or actual locomotive intercourse, between individuals of the States at war. Negotiation or contract had, therefore, no necessary connection with the offence. Intercourse, inconsistent with actual hostility, is the offence against which the rule is directed; and by substituting this term for that of trading with the enemy, an answer was given to the argument, that this was not a trading within the meaning of the cases cited. Whether, on the breaking out of war, a citizen has a right to remove to his own country, with his property, or not, the claimant certainly had not a right to leave his own country for the purpose of bringing home his property from an enemy's country. As to the claim for the vessel, it was held to be founded upon no pretext whatever; for the undertaking was altogether voluntary and inexcusable. (a)

The case

of The

§ 312. So, where hostilities had broken out and the Alexander. vessel in question, with a full knowledge of the war, and unpressed by any peculiar danger, changed her course and sought an enemy's port, where she traded and took in a cargo, it was determined to be a cause of confiscation. If such an act could be justified, it would be in vain to prohibit trade with an enemy. The subsequent traffic in the enemy's country, by which her return cargo was obtained, connected itself with a voluntary sailing for a hostile port; nor did the circumstance that she was carried by force into one part of the enemy's dominions, when her actual destination was another, break the chain. The conduct of this ship was much less to be defended than that of The Rapid. (a)

The case of The St.

§ 313. So, also, where goods were purchased some time Lawrence. 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. Supposing a citizen had a right, on the breaking out of hostilities, to withdraw from the enemy's country his property, purchased before the war, (on which the Court gave no opinion,) such right must be exercised with due diligence, and within a reasonable time after a knowledge of hostilities. To admit a citizen to withdraw property from a hostile country a long time after the commence(a) The Rapid, Cranch, viii. 155.

(a) The Alexander, Cranch, viii. 169–179.

ment of war, upon the pretext of its having been purchased before the war, would lead to the most injurious consequences, and hold out temptations to every species of fraudulent and illegal traffic with the enemy. To such an unlimited extent, the right could not exist. (a)

The case

§ 314. In another case, the vessel, owned by citizens of of The the United States, sailed from thence before the war, with Joseph. a cargo or freight, on a voyage to Liverpool and the north of Europe, and thence back to the United States. She arrived in Liverpool, there discharged her cargo, and took in another at Hull, and sailed for Petersburg under a British license, granted the 8th of June, 1812, authorizing the export of mahogany to Russia, and the importation of a return cargo to England. On her arrival at St. Petersburg she received news of the war, and sailed to London with a Russian cargo, consigned to British merchants; wintered in Sweden, and, in the spring of 1813, sailed under convoy of a British man-of-war for England, where she arrived and delivered her cargo, and sailed for the United States in ballast, under a British license, and was captured near Boston light-house. The Court stated, in delivering its judgment, that, after the decisions above cited, it was not to be contended that the sailing with a cargo or freight, from Russia to the enemy's country, after a full knowledge of the war, did not amount to such a trading with the enemy as to subject both vessel and cargo to condemnation, as prize of war, had they been captured whilst proceeding on that voyage. The alleged necessity of undertaking that voyage to enable the master, out of the freight, to discharge his expenses at St. Petersburg, countenanced, as the master declared, by the opinion of the United States Minister there, that, by undertaking such a voyage, he would violate no law of his own country; although those considerations, if founded in truth, presented a case of peculiar hardship, yet they afforded no legal excuse which it was competent for the Court to admit as the basis of its decision. The counsel for the claimant seemed to be aware of the insufficiency of this ground, and had applied their strength to show that the vessel was not taken in delicto, having finished the offensive voyage in which she was engaged in the enemy's country, and having been. captured on her return home in ballast. It was not denied that,

(a) The St. Lawrence, Cranch, viii. 434. Ib. ix. 120.

if she had been taken in the same voyage in which the offence was committed, she would be considered as still in delicto, and subject to confiscation; but it was contended that her voyage terminated at the enemy's port, and that she was on her return, on a new voyage. But the Court said, that even admitting that the outward and homeward voyage could be separated, so as to render them two distinct voyages, still, it could not be denied that the termini of the homeward voyage were St. Petersburg and the United States. The continuity of such a voyage could not be broken by a voluntary deviation of the master, for the purpose of carrying on an intermediate trade. That the going from the neutral to the enemy's country was not undertaken as a new voyage, was admitted by the claimants, who alleged that it was undertaken as subsidiary to the voyage home. It was, in short, a voyage from the neutral country, by the way of the enemy's country; and, consequently, the vessel, during any part of that voyage, if seized for any conduct subjecting her to confiscation as prize of war, was seized in delicto. (a)

§ 315. We have seen what is the rule of public and municipal law on this subject, and what are the sanctions by which it is guarded. Various attempts have been made to evade its operation, and to escape its penalties; but its inflexible rigor has defeated all these attempts. The apparent exceptions to the rule, far from weakening its force, confirm and strengthen it. They all resolve themselves into cases where the trading was with a neutral, or the circumstances were considered as implying a license, or the trading was not consummated until the enemy had ceased to be such. In all other cases, an express license from the government is held to be necessary, to legalize commercial intercourse with the enemy. (a) 158

(a) The Joseph, Cranch, viii. 451, 455.

(a) The Franklin, Robinson's Adm. Rep. vi. 127; The Madonna delle Gracie, Ib. iv. 195; The Juffrow Catharina, Ib. v. 141; The Abby, Ib. 251. Wheaton's Rep. ii., Appendix, Note I. p. 34. Wheaton on Captures, 220-223.

[158 Intercourse with the Enemy. In the Crimean war, the rule of non-intercourse with the enemy was greatly relaxed by the belligerents; but it was done by orders and proclamations in advance, professedly relaxing a rule which otherwise the courts of prize would have been obliged to apply. The Order in Council of 15th April, 1854, permitted British subjects to trade freely at Russian ports not blockaded, in neutral vessels, and in articles not contraband, but not in British vessels. (London Gazette, April 18, 1854.) The French orders were to the same effect. The Russian Declaration of 19th April permits French and English goods, the property of French

CA

with the

§ 316. Not only is such intercourse with the enemy, Trade on the part of the subjects of the belligerent State, pro- common hibited and punished with confiscation in the Prize enemy, unCourts of their own country, but, during a conjoint war, the s part of no subject of an ally can trade with the common enemy, jects. without being liable to the forfeiture, in the Prize Courts of the

lawful on

or English citizens, to be imported into Russia in neutral vessels. (London Gazette, May 2, 1864.) The French and Russian Governments allowed private communications, not contraband in their nature, to be exchanged between their subjects by telegraph. (Courrier des Etats Unis, 23d July, 1855.)

The subject is not touched by the Declaration of Paris of 1856. The Orders in Council must therefore be considered as a special relaxation, adopted from reasons of policy applicable to that war, and as to which each nation must judge for itself in any future war. In the debates in Parliament, and in speeches made by public men in the commercial cities, as well as in the memorials of merchants, and in contributions to the press, during and soon after the Crimean war, there was a strong disposition evinced to have all trade left free, and to confine the operation of wars to government property and persons or vessels in public belligerent employment. It was said that the commerce of England was too vast to be protected by her navy, and that she would lose more than she could gain in a contest of captures with any power; and that, if direct trade with enemies was not permitted, the only result would be, that neutrals would carry the cargoes, and the belligerents would not be crippled in commerce or resources, except as to the employment of their own ships and sailors, -a result which would not operate to the advantage of England. The argument on the other hand was, the necessity of requiring each citizen to follow the fortunes of his country in war. In the words of Judge Story, in The Julia (Cranch, viii. 181), "Can an American citizen be permitted in this manner to carve out for himself a neutrality on the ocean when his country is at war? Can an engagement be legal which confirms in him the temptation or necessity of deeming his personal interests at variance with the legitimate objects of his government?" Sir R. Palmer, the Attorney-General, said, "A political war and a commercial peace are inconsistent ;" and he presented cogently the necessity of having it understood beforehand, that each citizen's interest should be involved in the war, and liable to its fortunes, as a means of carrying home a serious sense of responsibility to all classes for engaging in war, as well as a means of making war thorough and decisive, and therefore short and of

more rare occurrence.

The truth is, the most humane and often the most efficient part of war is that which consists in stopping the commerce and cutting off the material resources of the enemy. If cutting off our commerce with him, and his with us, cripples and embarrasses him, it must be done. Driving his general commerce from the sea, and blockading his ports to keep neutral commerce from him, must diminish his resources, and tend to coerce him. It is the least objectionable part of warfare. It takes no lives, sheds no blood, imperils no households; has its field on the ocean, which is a common highway; and deals only with persons and property voluntarily embarked in the chances of war, for the purpose of gain, and with the protection of insurance. War is not a game of strength between armies or fleets, nor a competition to kill the most men and sink the most vessels, but a grand national appeal to force, to secure an object deemed essential, when every other appeal has failed. The purpose of using force is to coerce your enemy to the act of justice assumed to be necessary. It is

ally, of his property engaged in such trade. This rule is a corollary of the other; and is founded upon the principle, that such trade is forbidden to the subjects of the co-belligerent by the municipal law of his own country, by the universal law of nations, and by the express or implied terms of the treaty of alliance subsisting between the allied powers. And as the former rule can be relaxed only by the permission of the sovereign power of the State, so this can be relaxed only by the permission of the allied nations, according to their mutual agreement. A declaration of hostilities naturally carries with it an interdiction of all commercial intercourse. Where one State only is at war, this interdiction may be relaxed, as to its own subjects, without injuring any other State; but when allied nations are pursuing a common cause against a common enemy, there is an implied, if not an express contract, that neither of the co-belligerent States shall do any thing to defeat the common object. If one State allows its subjects to carry on an uninterrupted trade with the enemy, the consequence will be, that it will supply aid and comfort to the enemy, which may be injurious to the common cause. It should seem that it is not enough, therefore, to satisfy the Prize Court of one of the allied States, to

hazardous to lay down absolute rules in advance for all nations, under all circumstances, limiting possible means of coercion. Nations should have it in their power to coerce the body politic they are at war with, by a coercion applied to all its citizens in all their interests, and to identify the private interests of each of their own subjects with the national fortunes in the war. It must be assumed that the war is a national act, resorted to from an overpowering necessity for the protection of all; and those responsible for it must remember, that the extremities to which it may reduce a nation, and the means to which it may be necessary to resort, cannot be measured in advance. The controlling motive of every citizen, whether combatant or non-combatant, should be to have the war brought to a close as soon as possible, and to do all that is necessary to that end, consistently with humanity. The policy of exerting this or that legitimate mode of coercion must be left to depend on the circumstances of each case.

Heffter (§§ 122, 123) suggests, that a declaration of war does not of itself prohibit commercial intercourse; but that such intercourse may go on, unless specially prohibited, and so far as not so prohibited. This must, however, be considered rather as an opinion on what is desirable, than as a statement of law; for all precedent and practice, and the opinions of all jurists, are the other way. The reasons which influenced him appear in the passage itself, where he speaks of citizens as "die Unterthanen der streitenden Theile," of whose right of commerce he says, "die Handelsfreiheit der Einzelnen nicht erst von dem Staate kommt, sondern von denselben nur seine Beschränkungen zu enpfangen hat." The wars on the continent of Europe have been so often mere manœuvres of dynasties supported by their standing armies, in which the people have no interest, that a desire to free the people from their consequences is not unnatural in a continental writer; but different principles are applicable to States conducted by a self-governing people.]-D.