by the retrospective operation of the declaration. The Danish. government issued an ordinance retaliating this seizure, by sequestrating all debts due from Danish to British subjects, and causing them to be paid into the Danish royal treasury. The English Court of King's Bench determined that this ordinance was not a legal defence to a suit in England for such a debt, not being conformable to the usage of nations; the text writers having condemned the practice, and no instance having occurred of the exercise of the right, except the ordinance in question, for upwards of a century. The soundness of this judgment may well be questioned. It has been justly observed, that between debts contracted under the faith of laws, and property acquired on the faith of the same laws, reason draws no distinction; and the right of the sovereign to confiscate debts is precisely the same with the right to confiscate other property found within the country on the breaking out of the war. Both require some special act expressing the sovereign will, and both depend, not on any inflexible rule of international law, but on political considerations, by which the judgment of the sovereign may be guided.1 (a)

One of the immediate consequences of the com- 13. Trading with the mencement of hostilities is, the interdiction of all com- enemy, mercial intercourse between the subjects of the States the part of

un

lawful on

1 Maule & Selwyn's Rep. vol. vi. p. 92. Wolff v. Oxholm. Cranch's Rep. vol. viii. p. 110. Brown v. The United States. [Thompson, Laws of War, p. 7.] (a) [The property in Danish vessels and cargoes, condemned as droits of admiralty in 1807, and in retaliation of which the British debts were confiscated, was computed at £1,265,000. The debts due from Danish to British subjects, ordered to be paid into the treasury, amounted to only from £200,000 to £300,000. When Great Britain demanded the payment of this sum from the Danish government, the latter offered to deduct it from the value of the ships and other property condemned as above mentioned. This was declined; and the British government ultimately satisfied their own merchants, by an indemnity granted by Act of Parliament. "It is difficult," said Mr. Wheaton, writing in reference to this transaction, "to show a reasonable distinction between debts contracted under the public faith in time of peace, and property found in the enemy's territory on the breaking out of the war, or taken at sea before the declaration of hostilities." Mr. Wheaton to Mr. Forsyth, 29th November, 1834. MS. Despatches.]

subjects of at war, without the license of their respective governthe belligerent State. ments. In Sir W. Scott's judgment, in the case of The Hoop, this is stated to be a principle of universal law, and not peculiar to the maritime jurisprudence of England. It is laid down by Bynkershoek as a universal principle of law. "There can be no doubt," says that writer, "that, from the nature of war itself, all commercial intercourse ceases between enemies. Although there be no special interdiction of such intercourse, as is often the case, commerce is forbidden by the mere operation of the law of war. Declarations of war themselves sufficiently manifest it, for they enjoin on every subject to attack the subjects of the other prince, seize on their goods, and do them all the harm in their power. The utility, however, of merchants, and the mutual wants of nations, have almost got the better of the law of war, as to commerce. Hence it is alternately permitted and forbidden in time of war, as princes think it most for the interests of their subjects. A commercial nation is anxious to trade, and accommodates the laws of war to the greater or lesser want that it may be in of the goods of others. Thus, sometimes a mutual commerce is permitted generally; sometimes as to certain merchandises only, while others are prohibited; and sometimes it is prohibited altogether. But in whatever manner it may be permitted, whether generally or specially, it is always, in my opinion, so far a suspension of the laws of war; and in this manner there is partly war and partly peace between the subjects of both countries."1

1 "Quamvis autem nulla specialis sit commerciorum prohibitio, ipso tamen jure belli commercia esse vetita, ipsæ indictiones bellorum satis declarant, quisque enim subditus jubetur alterius Principis subditos, eorumque bona aggredi, occupare, et quomodocumque iis nocere. Utilitas verò mercantium, et quòd alter populus alterius rebus indigeat, fere jus belli, quòd ad commercia, subegit. Hinc in quoque bello aliter atque aliter commercia permittuntur vetanturque, prout e re suâ subditorumque suorum esse censent Principes. Mercator populus studet commerciis frequentandis, et prout quisque alterius mercibus magis minusve carere potest, eò jus belli accomodat. Sic aliquando generaliter permittuntur mutua commercia, aliquando quòd ad certas merces, reliquis prohibitis, aliquando simpliciter et generaliter vetantur. Utcunque autem permittas, sive generaliter, sive specialiter, semper, si me audias, quoad hæc status belli suspenditur. Pro parte sic bellum, pro parte pax erit inter subditos utriusque Principis." Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 3.

It appears from these passages to have been the law of Holland. Valin states it to have been the law of France, whether the trade was attempted to be carried on in national or neutral vessels; and it appears from a case cited (in The Hoop) to have been the law of Spain; and it may without rashness be affirmed to be a general principle of law in most of the countries of Europe.1

Sir W. Scott proceeds to state two grounds upon which this sort of communication is forbidden. The first is, that "by the law and constitution of Great Britain the sovereign alone has the power of declaring war and peace. He alone, therefore, who has the power of entirely removing the state of war, has the power of removing it in part, by permitting, where he sees proper, that commercial intercourse which is a partial suspension of the war. There may be occasions on which such an intercourse may be highly expedient; but it is not for individuals to determine on the expediency of such occasions, on their own notions of commerce merely, and possibly on grounds of private advantage, not very reconcilable with the general interests of the State. It is for the State alone, on more enlarged views of policy, and of all the circumstances that may be connected with such an intercourse, to determine when shall be permitted, and under what regulations. No principle ought to be held more sacred than that this intercourse cannot subsist on any other footing than that of the direct permission of the State. Who can be insensible to the consequences that might follow, if every person in time of war had a right to carry on a commercial intercourse with the enemy, and, under color of that, had the means of carrying on any other species of intercourse he might think fit? The inconvenience to the public might be extreme; and where is the inconvenience on the other side, that the merchant should be compelled, in such a situation of the two countries, to carry on his trade between them (if necessary) under the eye and control of the government charged with the care of the public safety?

"Another principle of law, of a less politic nature, but equally general in its reception and direct in its application, forbids this

1 Valin, Comm. sur l'Ordonn. de la Marine, liv. iii. tit. 6, art. 3.

sort of communication, as fundamentally inconsistent with the relation existing between the two belligerent countries; and that is, the total inability to sustain any contract, by an appeal to the tribunals of the one country, on the part of the subjects of the other. In the law of almost every country, the character of alien enemy carries with it a disability to sue, or to sustain, in the language of the civilians, a persona standi in judicio. A state in which contracts cannot be enforced, cannot be a state of legal commerce. If the parties who are to contract have no right to compel the performance of the contract, nor even to appear in a court of justice for that purpose, can there be a stronger proof that the law imposes a legal inability to contract? To such transactions it gives no sanction; they have no legal existence; and the whole of such commerce is attempted without its protec tion, and against its authority. Bynkershoek expresses himself with force upon this argument, in his first book, Chapter VII., where he lays down, that the legality of commerce and the mutual use of courts of justice are inseparable. He says that, in this respect, cases of commerce are undistinguishable from any other kind of cases: But if the enemy be once permitted to bring actions, it is difficult to distinguish from what causes they may arise; nor have I been able to observe that this distinction has ever been carried into practice." "

6

Sir W. Scott then notices the constant current of decisions in the British Courts of Prize, where the rule had been rigidly enforced in cases where acts of parliament had, on different occasions, been made to relax the Navigation Law, and other revenue acts; where the government had authorized, under the sanction of an act of parliament, a homeward trade from the enemy's pos sessions, but had not specifically protected an outward trade to the same, though intimately connected with that homeward trade, and almost necessary to its existence; where strong claims, not merely of convenience, but of necessity, excused it. on the part of the individual; where cargoes had been laden before the war, but the parties had not used all possible diligence to countermand the voyage, after the first notice of hostilities; and where it had been enforced, not only against British subjects, but also against those of its allies in the war, upon the supposition that the rule was founded upon a universal principle, which States allied in war had a right to notice and apply mu tually to each other's subjects.

Such, according to this eminent civilian, are the general principles of the rule under which the public law of Europe, and the municipal law of its different States, have interdicted all commerce with an enemy. It is thus sanctioned by the double authority of public and of private jurisprudence; and is founded both upon the sound and salutary principle forbidding all intercourse with an enemy, unless by permission of the sovereign or State, and upon the doctrine that he who is hostis· who has no persona standi in judicio, no means of enforcing contracts, cannot make contracts, unless by such permission.1

rican courts,

public

The same principles were applied by the American Decisions courts of justice to the intercourse of their citizens with of the Amethe enemy, on the breaking out of the late war between as to tradthe United States and Great Britain. A case occurred ing with the in which a citizen had purchased a quantity of goods enemy. within the British territory, a long time previous to the declaration of hostilities, and had deposited them on an island near the frontier; upon the breaking out of hostilities, his agents had hired a vessel to proceed to the place of deposit, and bring away the goods; on her return she was captured, and, with the cargo, condemned as prize of war. It was contended for the claimant that this was not a trading, within the meaning of the cases cited to support the condemnation; that, on the breaking out of war, every citizen had a right, and it was the interest of the community to permit its members, to withdraw property purchased before the war, and lying in the enemy's country. But the Supreme Court determined, that whatever relaxation of the strict rights of war the more mitigated and mild practice of modern times might have established, there had been none on this subject. The universal sense of nations had acknowledged the demoralizing effects which would result from the admission of individual intercourse between the States at war. The whole nation is embarked in one common bottom, and must be reconciled to one common fate. Every individual of the one nation must acknowledge every individual of the other nation as his own enemy, because he is the enemy of his country. This being the duty of the citizen, what is the consequence of a breach of

1 Robinson's Adm. Rep. vol. i. p. 196. The Hoop.