Part IV. § 312. The Alexander. § 313. The St. § 313a. Quitting hostile territory at the outbreak of war. upon no pretext whatever; for the undertaking was altogether voluntary and inexcusable (d). So where hostilities had broken out, and the 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 (e). So, also, where goods were purchased some time 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 commencement 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 (ƒ). In December, 1863, The Gray Jacket sailed from Mobile Bay, a Confederate port at that time blockaded by the Federal fleets, and the next day was captured on the high seas by a Federal cruiser. The owner of The Gray Jacket asserted that he was endeavouring to quit (d) The Rapid, 8 Cranch, 155. (f) The St. Lawrence, 8 Cranch, 434; S, C., 9 Cranch, 120. the rebel States with the ship and as much property as he could take Chap. I. in her, in order to repair to one of the loyal States. The Court below, however, condemned the ship as prize. The Supreme Court, on appeal, said, the liability of the property was irrespective of the status domicilii, guilt or innocence of the owner. If it came from enemy territory, it bore the impress of enemy property. If it belonged to a loyal citizen of the country of the captors, it was nevertheless as much liable to condemnation as if owned by a citizen or subject of the hostile country or by the hostile government itself. The only qualification of these rules is, that where, upon the breaking out of hostilities, or as soon after as possible, the owner escapes with such property as he can take with him, or in good faith thus early removes his property with a view of putting it beyond the dominion of the hostile power, the property in such cases is exempt from the liability which would otherwise attend it. The Gray Jacket having only sailed in December, 1863, whereas the war broke out in April, 1861, her removal was held to be too late, and she was condemned as prize (g). § 314. In another case, the vessel, owned by citizens of the The Joseph. United States, sailed from thence before the war, with 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 St. Petersburg under a British license, granted the 8th 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-ofwar 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 Lighthouse. 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 condemna (g) The Gray Jacket, 5 Wallace, 342, 369. Part IV. tion, 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, 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 (h). (h) The Joseph, 8 Cranch, 451. 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 rigour 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 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 (i). a Chap. I. § 315. Strictness of the rule. trade with the enemy. § 315a. These principles are still applicable to war except when belligerents Relaxation of have, of their own accord, chosen to modify them by regulations for rules against the guidance of their subjects in any particular case. During the Crimean war, England, France, and Russia all permitted their respective subjects to trade with the enemy, provided the trade was carried on through the medium of a neutral flag (k). This relaxation of the rules of international law only applied to that particular war. England at the same time prohibited her subjects from dealing with any securities issued by the Russian government during the war. was made a misdemeanour (1). At the outbreak of the Franco-German war, France permitted German vessels that had left Germany before the declaration of war, and were destined to carry goods to French ports, to proceed to such ports and discharge the goods, but German vessels which, under the same circumstances, were destined for neutral ports were held to be liable to capture as prize (m). Such an act $315b. The law of nations prohibits all intercourse between subjects of the Extent of two belligerents which is inconsistent with the state of war between prohibition of intercourse their countries. This includes any act of voluntary submission to the between enemy, or receiving his protection; any act or contract which tends to enemies. increase his resources, and every kind of trading or commercial 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, (i) The Franklin, 6 C. Rob. 127; The Madonna della Gracia, 4 C. Rob. 195; The Juffrow Catharina, 5 C. Rob. 141; The Alby, Ibid. 251. See Wheaton's Reports, vol. ii., App. note (i), p. 34; Wheaton on Captures, 220. Mitchell v. U. S., 21 Wallace, 350; Radich v. (k) Kent by Abdy (2nd ed.), p. 190. (m) Archives Diplomatiques, 1871-2, Part IV. Debts between enemies. § 315c. Contracts with neutrals to be performed in enemy's country. The Teutonia. or by insurances upon trade by or with the enemy. Beyond this the prohibition does not extend (n). It does not apply to transactions which are to take place entirely in the territory of one belligerent. Thus, where a creditor residing in one of the States at war has an agent in the other State, to whom a debtor could pay the money, which agent was appointed before the war broke out, the payment by the debtor to such agent is lawful. It does not follow that the agent, if he receives the money, will violate the law by remitting it to his principal (o). If a debt between enemies is contracted during the war, it cannot be sued for when the war is over (p); but when debts have been contracted before war breaks out, the existence of the war does not extinguish the debts, it simply suspends the remedy of the creditor (q). If the debts are not confiscated during the war, the right to enforce payment revives with peace (r). As the creditor cannot sue for his debt during the war, it has been held in America that a statute of limitations does not run against the creditor while the war lasts (s). But there is no exception in this respect in the English Statute of Limitations (t). In a case where the parties had agreed in their contract that no suit or action should be sustainable unless commenced within twelve months after a certain event should occur, the Court held, that as this contract was followed by a war, by which the parties became enemies, the plaintiff was relieved from his disability to sue within the twelve months (u). Another result of war is, that a contract between a belligerent subject and a neutral cannot, so long as the war lasts, be performed if the belligerent subject has agreed to carry it out in the enemy's country. Before the outbreak of the war between France and Germany in 1870, a German vessel was chartered by a British subject to carry a cargo of nitrate of soda (contraband of war) from Pisagua to Cork, Cowes, or Falmouth, and then to receive orders to proceed to any safe port in Great Britain, or on the continent between Havre and Hamburgh. On arriving at Falmouth the master received orders to go to Dunkirk, and started for that port. Shortly before arriving there, he was told by a French pilot that war had broken out between France and Germany, and thereupon he sailed to Dover to obtain accurate information. He had appeared off Dunkirk on the 16th of July, 1870, and (n) Kershaw v. Kelsey, 100 Massachusetts, 572; Jecker v. Montgomery, 18 Howard, 111; Hanger v. Abbott, 6 Wallace, 535; Montgomery v. U. S., 15 Ibid. 395; Snell v. Dwight, 120 Massachusetts, 9. (0) Ward v. Smith, 7 Wallace, 452; U. S. v. Grossmayer, 9 Ibid. 75. (p) Willison v. Paterson, 7 Taunton, 439. (g) Ware v. Hilton, 3 Dallas, 199; |