Part 2 (1/2)

”Where the Government has authorised, under sanction of an Act of Parliament, a _homeward trade_ from the enemy's possessions, but has not specifically protected an _outward_ _trade_ to the same, though intimately connected with that homeward trade, and almost necessary to its existence, the rule has been enforced, where strong claim not merely of convenience, but almost of necessity, excused it on behalf of the individual.

”It has been enforced, where cargoes have been laden before the war, but where the parties have not used all possible diligence to countermand the voyage after the first notice of hostilities.[23]

”In the last war between England and America, a case occurred in which an American citizen had purchased a quant.i.ty of goods within the British territory, a long time previous to the war, and had deposited them upon an island near the frontier; upon the breaking out of hostilities, his agents had hired a vessel to proceed to the spot, to bring away the goods; on her return she was captured, and with the cargo, condemned as prize of war.”[24]

So also, where goods were purchased, some time before the war, by the agent of an American citizen in Great Britain, but not s.h.i.+pped until nearly a year after the declaration of hostilities, they were p.r.o.nounced liable to confiscation.[25]

Where property is to be withdrawn from the country of the enemy, it is the more satisfactory and guarded proceeding on the part of the _British_ merchant to apply to his own Government for the special importation of the article; it is indeed the only safe way in which parties can proceed.[26]

[Sidenote: Subjects of an Ally may not trade with the Enemy.]

During a Conjoint War no Subject of an Ally can trade with the common enemy without liability to forfeiture in the prize courts of the Ally, of all his property engaged in such trade. As the former rule can be relaxed only by permission of the Sovran power of the state, so this can be relaxed only by the permission of the allied nations, according to their mutual consent.[27]

[Sidenote: Contracts void.]

On similar principles, all Contracts made with the Enemy _during War_ are utterly _void_. This applies to Insurances on the enemy's property and trade; to the drawing and negociation of Bills of Exchange, whether the subject of this country or of the alien enemy be the acceptor; to the sending of Money or Bills to the enemy's country; to Commercial Partners.h.i.+ps. All endeavours to trade by third persons are equally illegal.[28]

Thus also all Contracts made in contemplation of War, and which never could have existed at all, but as an insurance against the pressure of war, and with a view to evade the rights that arise out of war, and in fraud of the belligerent, are illegal, even though made by neutrals.[29]

[Sidenote: Insurances.]

The munic.i.p.al or common law of every state declares all Insurances to be void, by which s.h.i.+ps or merchandize of the enemy are sought to be protected. Also all Insurances by or on behalf of _alien_ enemies are wholly illegal and void, although effected before the breaking out of hostilities; but if both the policy had been effected and the loss accrued before the war, the remedy is only suspended during the war.

The general principle is that the contract of a.s.surance is vacated and annulled _ab initio_; wherever an insurance is made on a voyage expressly prohibited by the common, statute, or maritime law of the country; the policy is of no effect.[30]

Thus, if a s.h.i.+p, though neutral, be insured on a voyage prohibited by an embargo laid on in time of war, by the prince of the country in whose ports the s.h.i.+ps happen to be, such an insurance is void.[31]

Similarly, all Insurances to protect the interests of British subjects trading without licence with the enemy are absolutely void.[32]

So also, if a Licence is not strictly pursued, so that the voyage becomes illegal, the insurance is void.[33]

I have said that all Insurances will be void which are designed to protect voyages or trading to hostile ports. But, for this purpose, it must be clearly made out, not only that the port into which the s.h.i.+p sails is hostile, but also, that she was bound with a distinct hostile destination at the time of loss. Thus a policy to ”ports in the Baltic,” is legal, as some may be hostile, and some not, and it is not certain that she was sailing to a hostile port.

The general principle by which the validity of a policy is to be tested, is by the voyage, that it is a voyage prohibited by law, on some ground of public policy. The will, therefore, of the parties is of no account, as the prohibition is for public, and not private benefit. So that if the underwriter is told that the voyage is illicit he is not more bound than if he were not told so.[34]

It is Insurances upon voyages generally prohibited by law, such as to an enemy's garrison, or upon a voyage directly contrary to an express act of parliament, or to royal proclamation in time of War, that are absolutely void and null;--therefore, on neutral vessels, or the vessels of British subjects possessing neutral rights and sailing from neutral ports to enemies ports are not void.[35]

Similarly, with respect to Insurances on neutral vessels carrying _contraband goods_, for it is not the voyage, but the cargo, that is illegal in that case.[36]

Insurances are good on Neutral Vessels engaged in the Colonial Trade of the Enemy, and which was closed to the Neutral in time of peace,[37] It must be observed, that if a voyage is illegal, and voids the policy for that voyage, it does not follow that it voids the voyage in the opposite direction, and even the goods purchased by the proceeds of a former illegal voyage, may be the subject of Insurance.[38]

[Sidenote: Bills of Exchange drawn during War.]

It has been stated above that all Bills drawn or negociated with the enemy, whether a British subject or the alien enemy be the acceptor, are null and void; during the last war, however, attempts were often made to draw and negociate bills that should pa.s.s muster in our courts of law, as for example:--

An alien enemy, during war, drew upon a British subject resident in England, and who had funds of the alien in his hands; the drawer then indorsed the bill to an English-born subject, resident in the hostile country; such a bill cannot be enforced even after the restoration of peace, for otherwise it would enable alien enemies to take the benefit of all their property in this country, by allowing them to pay debts out of such funds, by the instrumentality of bills.[39]

The principle seems to be,--that it is not every bill that bears the name of an alien enemy upon it that is void, but such bills only that are instrumental in a.s.sisting in communication with an alien enemy;--and a liberal application of this principle has been made use of to open a way for English prisoners to make use of their property at home for their support in the country of their captivity. Thus, where one of two Englishmen, detained in France on the breaking out of hostilities, drew in favour of the other, upon a subject here, it was held that he might legally draw such a bill for his _subsistence_, and that he might indorse it to an alien enemy, an inhabitant of the hostile country; for he could not avail himself of the bill except by negociation; and to whom could he negociate it, except to the inhabitants of the country in which he resided?[40]

Bills, like other contracts, are only void by the policy of war; but the law still recognizes some extent of obligation between the parties, so that bills void in their concoction (as instruments of trade with the enemy,) are not so far void that they may not const.i.tute the basis of a promise by which a party may bind himself on the return of peace.[41]