International Law as Applied by England During the War

Extract

One of the immediate consequences of the outbreak of war, according to the Anglo-American law, is that all the commercial relations between subjects of the belligerent countries come to an end. Fresh dealings cannot be entertained, and existing dealings cannot be continued, between persons divided by the line of war, save with the licence of the sovereign power. It is stated in several of the old English books that such trading is a misdemeanor, and even that it amounts to a felony, but there is no reported instance of a conviction by a criminal court. In numerous cases, however, contracts concerned with such trade were declared null, and goods seized when so engaged were confiscated as prize to the Crown. The broad principle was laid down clearly during the Napoleonic wars by Lord Stowell in the case of The Hoop, where a cargo had been captured on a neutral ship on the ground that it was being brought to England from the enemy country by British subjects. There had been some divergence of practice between the prize courts and the common law courts on the question of the absolute illegality of commercial intercourse with the enemy during war, and Stowell then stated the rule which was derived from the Dutch jurist Bynkershoek and which was conceived to be a rule of the law of nations:

In my opinion there exists such a general rule in the maritime jurisprudence of this country, by which all trading with the public enemy, unless with the permission of the sovereign, is interdicted. It is not a principle peculiar to the maritime law of this country; it is laid down by Bynkershoek as an universal principle of law.—“Ex natura belli commercia inter hostes cessare non est dubitandum. Quamvis nulla specialis sit commerciorum prohibitio, ipso tamen jure belli commercia esse vetita, ipsae indictiones bellorum satis declarant, etc.” He proceeds to observe, that the interests of trade, and the necessity of obtaining certain commodities have sometimes so far overpowered this rule, that different species of traffic have been permitted, “prout e re sua subditorumque suorum esse censent principes.” But it is in all cases the act and permission of the sovereign. Wherever that is permitted, it is a suspension of the state of war quoad hoc. * * * It appears from these passages to be the law of Holland; Valin states it to be the law of France * * * and it may, I think, without rashness be affirmed to have been a general principle of law in most of the countries of Europe. (1 C. Rob. p. 199.)