ships bearing the national character of a belligerent, bound to a port of a hostile nation, in which they would be subject to confiscation or detention under articles 921 and 929, and leaving the last port before notice of the declaration of war or commencement of hostilities, or driven to the hostile port at any time in distress, may freely enter such port, and enjoy the same immunity as is provided in the last article.

Intercourse of active enemies.

924. Active enemies cannot make contracts or engage in commerce or traffic with enemies, either active or passive, or with the hostile government, except as expressly sanctioned by this Code,' or by both of their respective governments.

1 See Chapters LX. and LXIII., and Part IX.

The doctrine, that a declaration or recognition of war effects an absolute interruption and interdiction of all commercial intercourse and dealings between the subjects of the two countries, does not apply to contracts of necessity, founded on a state of war, and engendered by its violence;' e. g., ransom bills, and bills of exchange drawn by a prisoner in the enemy's country for his own subsistence. Halleck, Intern. Law and Laws of War, p. 359, § 11.

Intercourse subserving the purpose of the war.

925. Enemies, whether active or passive, cannot make contracts or engage in commerce or traffic with each other, or with each other's government, which may directly subserve the purposes of war.

The rule prescribed by this Article is suggested as the principal restriction which war ought to impose upon neutrals and non-combatants. See note to the next Article.

Lawful intercourse.

926. Subject to the provisions of this Book, passive enemies may make any contracts, and engage in any commerce or traffic with any persons or nations, except their active enemies, and the hostile nation, which will not directly subserve the purposes of war.

The existing rules may be briefly indicated as follows:

The existence of war renders unlawful all commercial intercourse or

correspondence of members and domiciled residents of one country with those of the other.

Trading by one enemy with the other subjects the property to confiscation or to capture and condemnation.

Partnerships between enemies are dissolved.

No valid contract, express or implied, can arise from any transaction between enemies. Executory contracts which cannot be performed without commercial intercourse with the enemy are dissolved. 6 Wallace's U. S. Supr. Ct. Rep., 535, and authorities there cited.

The rule forbidding trade between enemies has been applied to the full extent of the old principle, (now generally disavowed,) that, war makes all individual subjects of the nations concerned, the individual enemies of each other; and all intercourse between them, therefore, unless by consent of the sovereign, illegal, except contact in actual combat. The object, policy and spirit of the rule, says Chief Justice MARSHALL, (in the case of The Rapid, 8 Cranch's U. S. Supr. Ct. Rep., 162,) “ is to cut off all communication or actual locomotive intercourse between individuals of the belligerent States. Negotiation or contract has, therefore, no necessary connection with the offense. Intercourse inconsistent with actual hostility, is the offense against which the operation of the rule is directed." In this case, an American citizen during peace bought English goods in England, and deposited them on Indian Island, a small island belonging to England, near the boundary between Nova Scotia and the United States. On the breaking out of war between Great Britain and the United States, he sent a fishing vessel to bring the goods away. This was held unlawful.

An English case, The Madonna della Gracia, (4 Robinson's Rep., 195,) has asserted a distinction in the case of property not bought in the way of trade; but as is pointed out by Mr. Castle, (Law of Commerce in time of War, p. 24,) if we come to qualify this doctrine by the principle laid down by Mr. Justice WILLES, in Esposito v. Bowden, (9 Ellis & Blackburn's Rep., 788,) that mere payment of export and custom house dues, is a sufficient dealing with the enemy to render the contract illegal; the English rule of law cannot be said to be more lenient, or to differ much from that of the American,—that is to say, all intercourse with the enemy, inconsistent with actual hostility,—is illegal. STORY, J., in laying down the rule, in the case of The Julia, (8 Cranch's U. S. Supr. Ct. Rep., 194,) says, that every aid by personal communication or by other intercourse, which shall take off the pressure of the war, or foster the resources or increase the comforts of the public enemy is strictly inhibited. All intercourse which humanity or necessity does not require, is prohibited. Chancellor KENT, in Griswold v. Waddington, 16 Johnson's (New York) Rep.. 438, reviewed the continental, the English and the American authorities, and concluded that the rule of interdiction implied in a state of war reaches to all interchange, or transfer, or removal of property, to all negotiation of contracts, to all communication, to all locomotive inter

66

course, to a state of utter occlusion, to any intercourse but one of open hostility, to any meeting but in actual combat."

A leading case in England is that of The Hoop, (1 Robinson's Rep., 196,) in which Sir Wм. SCOTT, reviewed the authorities, and concluded that intercourse could not subsist on any other footing than that of the direct permission of the State. There is no such thing," said Sir JOHN NICHOLL, (the King's Advocate, in Potts v. Bell, 8 Durnford & East's Rep., 548, 554,)" as a war for arms, and a peace for commerce."

The rule that war dissolves commercial partnerships was even applied to the case of a firm, two members of which resided in the North, and one in the South, at the breaking out of the civil war in the United States, and the court refused to consider the allegiance or disposition of the latter. Wood v. Wilder, 43 New York Rep., 164.

The prohibition extends to the mere carrying of messengers and dispatches. The Tulip, 3 Washington's U. S. Circ. Ct. Rep., 181.

Dana thus reviews the subject: During the Crimean war, the rule of non-intercourse with the enemy was greatly relaxed by the bellig erents; but it was done by orders and proclamations in advance, profess edly 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, permitted French and English goods, the property of French or English citizens, to be imported into Russia in neutral vessels. (London Gazette, May 2, 1854.) The French and Russian governments allowed private communications, not contraband in their nature, to be exchanged between their subjects by telegraph. (Courier 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 as to 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 operations of wars to government property and persons or vessels in public belligerent employment. Dana's Wheaton, Elements of Intern. Law, note 158, p. 400.

See the English authorities on National Character, as related to the question of belligerent rights, collected in 2 Wildman's International Law, p. 36-117; Castle's Law of Commerce in Time of War, pp. 27-39; and the same subject with the American authorities in Lawrence's Wheaton, Elem. of Intern. Law, pp. 557-580, §§ 16-22; Dana's Wheaton, §§ 318-340.

Commencement and termination of illegality.

927. The commencement, by an enemy or neutral,

of a voyage to, or other effort at intercourse with, a belligerent place, with knowledge of the war, and in the execution of a purpose to carry on unlawful traffic or intercourse, is unlawful; but a voyage or other effort at intercourse. commenced without such knowledge or purpose, is not rendered unlawful by the subsequent commencement of hostilities,' unless thereafter persisted in. And, when the military occupation or interdiction, which renders traffic with a place illegal, ceases, the right to capture property engaged in such traffic ceases at the same time.'

12 Wildman's International Law, p. 23. 25 Robinson's Rep., 251.

Transfer of ships during war.

928. An actual and unconditional transfer of a private ship of one belligerent to another, or a neutral, if in accordance with article 275, is valid and effectual to change the national character.

The rule established by the courts is, that a transfer of property to a neutral by an enemy, in time of war, or in aid of a contemplated war, is illegal, as in violation and fraud of vested belligerent rights. The Bernon, 1 Ch. Robinson's Rep., 102; The Noydt Gedacht, 2 Id., 137, note; The Minerva, 6 Id., 396, 400, note; The Rosalie and Betty, 2 Id., 343; The Mersey, Blatchford's Prize Cases, (U. S. Dist. Ct.,) p. 187; The Georgia, 7 Wallace's U. S. Supr. Ct. Rep., 32.

The principal rules as to the national character of property, during war, as laid down by the judicial authorities, are as follows:

1. Ships. A ship, freely navigating solely under the flag or pass of any other nation than that of its owner, bears the national character of such other nation. 1 Kent's Commentaries, 85. A foreign flag may be hoisted under the regulations of a particular trade. Arnold v. Delcoli, Bee's Adm. (U. S.,) Rep., 5.

The presumption of national character arising from these emblems of nationality may be rebutted by the presence of other instruments found in the possession of the captain. Gouget et Merger, III., p. 260, § 45.

As to national character of shipping, see Lawrence's Wheaton, Elem. of Intern. Law, p. 580, § 22; Dana's Wheaton, § 340; The Julia, 8 Cranch's U. S. Supr. Ct. Rep., 181; The Hiram, 8 Id., 404; The Aurora, 8 Id.,

203.

2. Establishments of trade. The ownership of, or interest in, a com

mercial establishment, and its branches, bears the national character of the nation within whose limits the chief establishment is situated. Lawrence's Wheaton, Elements of Intern. Law, p. 573, § 19; The Freundschaft, 4 Wheaton's U. S. Supr. Ct. Rep., 105.

The British and American courts make a further exception in the case of an owner domiciled in a hostile country, and owning a share in a house of trade established in a neutral country, (Lawrence's Wheaton, Elem. of Intern. Law, p. 575, § 20;) an exception which shows "strong marks of partiality towards the interests of captors."

3. Products of the soil. The national character of the products of the soil of the territory of a nation is that of the territory, so long as they belong to the owner of the soil. Lawrence's Wheaton, Elem. of Intern. Law, p. 576, § 21.

Penalty of illegal traffic and intercourse.

929. Property which is made the subject or vehicle of traffic that is illegal, under the provisions of this Book, is liable to capture and confiscation; and persons engaged in intercourse that is illegal, under the provisions of this Book, are liable to capture and detention, in the manner provided in this Book.

See Chapters LXIII. and LXVI.

The rules for ascertaining the destination of a voyage, (as distinguished, however, from the destined use of a ship or cargo,) are prescribed by Articles 855-858.

EFFECT OF A STATE OF WAR UPON THE ADMINISTRATION OF JUSTICE.

Both the English and American courts refuse, in general, to sustain any action during war, either by or in favor of an alien enemy. Brandon v. Nesbitt, 6 Term. Rep., 23; Mumford v. Mumford, 1 Gallison's U. S. Circ. Ct. Rep., 366. After peace is restored between the nations, the members of each may sue in the courts of the other, even upon contracts made during the war; (Antoine v. Morshead, 1 Marsh., 588; 6 Taunton's Rep., 237; and see Sparenburgh v. Bannatyne, 1 Bosanquet & Puller's Rep., 163; 2 Espinasse's Rep., 580;) though a contrary rule was recognized in the case of Anthon v. Fisher, 2 Douglass' Rep., 649, n. It is, however, admitted that an alien enemy may sue, if he come under circumstances that put him in the Sovereign's Peace pro hac vice,-e. g., a pass, cartel, or flag of truce. Twiss, Law of Nations, Part II., p. 109. And since, ac