verted into a fire-ship (h), and in another, where a vessel was seized and taken in tow by a British man-of-war, and damage was thereby caused to her cargo (i). In Aubert v. Gray (j), already referred to in connexion with the subject of Embargo (p. 45, supra), it was definitely decided by the Court that the assured is not to be identified with and deemed responsible for the acts of his own government so long as peaceful relations exist between such government and the government of the underwriter. This was a case where the assured was a Spaniard who had effected insurance in England, and the loss was caused by the act of the Spanish Government. But any question whether the embargo or arrest was effected by the home or by a foreign government will, so far as concerns the underwriters, apparently be immaterial (k). In connexion with this subject, the remarks sub Embargo (pp. 39-48, supra) may be usefully referred to. As regards the effect of arrest, detention, or embargo on the contract of affreightment, the point has already been touched upon sub Pre-emption (p. 252), supra. Chap. XIII.-Effect of War on Contract-is also interesting in the same connexion. Let us now look at the belligerent municipal right of prohibiting all intercourse with the national foe,—a condition which may be said to be almost necessarily attendant on the existence of hostile relations. (h) Green v. Young, 2 Lord Raym. 840; Salk. 444. (j) 3 B. & S. 163. (k) Arnould, 5th ed. p. 754. PROHIBITION OF TRADE WITH THE ENEMY. It has been explained above (k) that when war has once been entered upon, every individual of the nations engaged is considered to be involved in it, and that the effect of this taint of hostilities is to stop all peaceable intercourse as between the subjects of the nations so opposed; and that, as a natural consequence, all trading with the common enemy becomes at once illicit to the subjects of the belligerent state. For it is obvious that there cannot consistently exist at one and the same time a condition of open hostility between two nations at large, and a state of peaceful—that is, friendly— intercourse as between the subjects of such nations as individuals. While the times have presumably for ever passed away when the persons and property of enemy subjects domiciled in the belligerent country can be seized on the outbreak of war (1), the condition remains that trade with the foe, whether by land or by water, must absolutely cease immediately on the close of friendly relations. In the last formal declaration of war issued by this country, viz., in 1762, against Spain (m), British subjects were thenceforth strictly forbidden to "hold any correspondence or communication with the King of Spain or his subjects." And on declaration of war against Russia in 1854, it was ordered that "no ships or vessels belonging to any of her Majesty's subjects be permitted to enter and clear out for any of the ports of Russia till further order." No such express declarations are, however, neces (k) Vide p. 13, supra. (m) Vide Twiss's Int. Law, p. 65. sary, the doctrine being well settled by the English Courts that there cannot exist at the same time a war for arms and a peace for commerce. For this reason all contracts made with the enemy during war are utterly void (n), and such contracts existing prior to the outbreak of hostilities are suspended until the resumption of peaceful relations. (For further consideration of this subject, see under Effect of War on Contract, p. 412.) The prohibition of friendly intercourse covers not merely trade as generally understood, but also communications and transactions of whatever kind; such, for example, as the negotiation of bills, or the remission of funds to the enemy's country (0). In the leading case of Willison v. Patteson the circumstances were as follows: One Varlet, of Dunkirk, was debtor to Michelon of the same place, and in this capacity he transferred to the latter certain cambrics held by Patteson & Co. of London, the defendants, who were notified accordingly. Michelon drew against Patteson, who accepted the drafts, which Michelon had endorsed over to Willison, a Scotchman resident at Dunkirk. During these transactions war prevailed between England and France. The defendant Patteson having failed to honour his acceptance, Willison, on restoration of peace, sued him on the drafts. The Court, in deciding against the plaintiff, observed that that cannot be done indirectly which cannot be done directly; and that Michelon could neither during war bring an action for money had and received against the holder of his funds here, nor by drawing on his debtor produce the same effect. The bill was a contract; and no contract could be enforced in a British Court which is made during the war by an alien enemy. (n) Willison v. Patteson, 7 Taunt. 439; Ogden v. Peele, 8 D. & R. 1; Bell v. Reid, 1 M. & S. 731; Esposito v. Bowden, infra, p. 416. (0) Willison v. Patteson, supra. In Antoine v. Morshead (p), however, where a British subject, prisoner of war in France, drew a bill in favour of fellow prisoners, also British subjects, on his son in England for his own subsistence whilst in captivity, and the bill was endorsed in favour of a French banker, who obtained its acceptance, it was held that this was not a trading with the enemy, and that the plaintiff, on peace being proclaimed, was entitled to sue for payment by the acceptor. An element in this case was that the bill was drawn by a British subject on a British subject. Prohibitions against commercial intercourse are not to be evaded by any artifice or device, such as by means of partnerships with or the interposition of third parties (9). In The Jonge Pieter (r), goods purchased in England and shipped for Embden, with ultimate destination Amsterdam, an enemy port, were seized by a British cruiser as being shipped in breach of the prohibition of trade with the enemy. The goods were claimed as the property of a neutral, a merchant in America, for whose account the shipment was declared to have been made by his agent in London. The Court found that, in the absence of sufficient evidence in support of this allegation, the ownership must be deemed to be vested in the British shipper; and, as the goods were destined for the enemy via neutral territory, judgment was given in favour of the captors. "Without the licence of government," said Sir W. Scott, "no communication, direct or indirect, can be carried on with the enemy." So also in The Samuel (s), where a British subject employed a neutral to purchase for him in the country of the enemy, the neutral was held to be merely the agent. (p) 6 Taunt. 237. (q) Kent's Int. Law, 2nd ed. p. 186. (r) 4 Rob. 79. (s) 4 Rob. 284; 8 Term R. 548. In The Nayade (t), England and Portugal being at war with France, a cargo shipped at Lisbon for Bordeaux was seized by a British cruiser. The property was alleged to belong to a Prussian subject resident in Lisbon, but the Court declared that there was nothing in this case to distinguish it from that of any other Portuguese merchants trading with the enemy. In another case (u) a shipment of tobacco had been made from Virginia to Bordeaux, described as the property of J. Bell, the shipper. It appeared, however, that J. Bell was a member of the firm J. & W. Bell, established both in America and in England, and the captors claimed that the shipment, so far as it belonged to W. Bell, the partner resident in England, was lawful prize. W. Bell having failed to produce satisfactory evidence in disproof of his interest in the property, the Court condemned a moiety of it as the property of a British subject trading with the enemy. In The Indian Chief (v), a cargo had been shipped at Batavia (a possession of the enemy) on behalf of a Mr. Miller, an American subject and consul in Calcutta, who protested against the captors' claim on the ground that, being resident in Calcutta, and a neutral subject, and American consul, he did not come within the law against trading with the enemy. The Court held that, being domiciled in Calcutta, which was in possession of the British, he must be held to be a British subject, and that a consul engaged in commerce derived no such special protection from his official position. In another case it was decided that the property of a British representative, resident in the enemy's country, is not protected from seizure, however beneficial to this country the (t) 4 Rob. 251. (u) The Franklin, 6 Rob. 127. |