Part 2 (2/2)

[Sidenote: Contracts made before the War.]

On the very important question of the effect of a declaration on Contracts with the subjects or the enemy, _entered into previous to the War_, the rule is, that if the performance of the contract be rendered unlawful by the Government of the country, the contract is dissolved on both sides.[42]

Thus the contract of Affreightment is dissolved when the voyage becomes unlawful, by the commencement of war, or the interdiction of commerce;[43] and this whether the interdiction is complete as to the s.h.i.+p, or partial as to the receiving of goods.

Similarly, if the voyage be broken up by Capture on the pa.s.sage, so as to cause a _complete defeat_ of the undertaking, the contract is dissolved, notwithstanding a recapture.[44]

A Blockade of the port of destination, that renders the delivery of the cargo impossible, and obliges the s.h.i.+p to return to its port of destination, dissolves the contract.[45]

A temporary interruption of the voyage does not put an end to the agreement. Embargoes, hostile blockades, and investments of the port of departure are held to be temporary impediments only.[46]

But in the case of an Embargo imposed by the government of the country, of which the merchant is a subject, in the nature of reprisals and partial hostility, against the enemy to which the s.h.i.+p belongs, the merchant may put an end to the contract, if the object of the voyage is likely to be defeated thereby; as if, for example, the cargo were of a perishable nature.[47]

[Sidenote: Partners.h.i.+ps.]

A Public War operates as a positive dissolution of Partners.h.i.+ps between subjects of the contending nations. Every Partners.h.i.+p is dissolved by the extinction of the business for which it was formed.[48] By a declaration of War, the respective subjects of each country become positive enemies to each other. They can carry on no commercial or other intercourse with each other; they can make no valid contracts with each other; they can inst.i.tute no suits in the courts of either country; they can, properly speaking, hold no communication of an amicable nature, with each other; and their property is mutually liable to capture and confiscation by the subjects of the other country. The whole objects and ends of the Partners.h.i.+p, the application of the joint funds, skill, labour, and enterprize of all the Partners of the common business, can no longer be attained.[49]

Thus a Partners.h.i.+p between alien friends, is at once defeated when they become alien enemies.

This dissolution, however, only has respect to the future. The parties remain bound for all antecedent engagements. The partners.h.i.+p may be said to continue as to everything that is past, and until all pre-existing matters are wound up and settled. With regard to things past, the partners.h.i.+p continues, and must always continue.

No notice is necessary to the world to complete the dissolution of the a.s.sociation. Notice is requisite when a partners.h.i.+p is dissolved by the act of the parties, but it is not necessary when the dissolution takes place by the act of law. All mankind are bound to take notice of the War, and its consequences. Besides, any special notice would be useless unless joint, and as the partners could hold no lawful intercourse, a lawful joint notice is impossible.

It must not be supposed that peace will have any healing effect, to restore the parties to their rights; the co-partners.h.i.+p being once dissolved by the war, it was extinguished for ever, except as to matters existing prior to the war.[50]

With regard to the effect of war upon partners.h.i.+ps, where the partners are severally subjects of the belligerent powers. According to Mr.

Justice Story,

”this point does not seem to have been discussed in our courts of justice until a recent period; yet it would seem to be a necessary result of principles of public law, well established and defined. By a declaration of war, the respective subjects of each country become positive enemies of each other. They can carry on no commercial or other intercourse with each other; they can make no valid contracts with each other; they can inst.i.tute no suits in the courts of either country; they can, properly speaking, hold no communication of an amicable nature with each other; and their property is mutually liable to capture and confiscation, by the subjects of either country. Now, it is obvious from these considerations, that the whole ends and objects of the partners.h.i.+p, the application of the joint funds, skill, labours, and enterprize, of all the partners in the common business thereof, can no longer be attained.

The conclusion therefore, would seem to be absolutely that this mutual supervening capacity, must, upon the very principles applied to all a.n.a.lagous cases, amount to a positive dissolution of the partners.h.i.+p.”[51]

The law of nations has not even stopped at the points already stated; it proceeds further. The question of enemy or no enemy, depends not upon the natural allegiance of the partners, but upon their domicile.

[Sidenote: Partners.h.i.+ps.]

If a partners.h.i.+p is established, and as it were domiciled, in a neutral country, and all the partners reside there, it is treated as a neutral establishment, and is ent.i.tled to protection accordingly. But if one or more of the partners is domiciled in an enemy's country, he or they are treated personally as enemies, and his share of the partners.h.i.+p property is liable to capture and condemnation accordingly, even though the partners.h.i.+p establishment is in the neutral country. The inference from these considerations is, that in all these cases there is an utter incompatibility from operation of law between the partners, as to their respective rights, duties, and obligations, both public and private; and therefore, that a dissolution must necessarily result therefrom, independent of the will or acts of the parties.[52]

And, as a general rule, therefore, it may be laid down, that if the performance of a covenant be rendered unlawful by the Government of this country entering into war, the contract will be dissolved on both sides, and the offending party, as he has been compelled to abandon his contract, will be excused from the payment of damages for its non-performance; but it is otherwise, if the non-performance is prevented only by the prohibition of a foreign country.[53]

In such cases, the remedy only is suspended; and other cases may occur on these principles, where, from other circ.u.mstances, the remedy only is suspended until the termination of the war; as for example, in most cases of executed contracts.

[Sidenote: Trading with the Enemy punishable.]

Trading with the Enemy, was at an early period an indictable offence in the English Court of Admiralty.[54] And in the time of King William, it was held to be a misdemeanor at common law, to carry corn to an enemy.[55]

The law, as I have faintly sketched it out, is founded to some extent on American authorities, where the question has been as fully discussed as in the reports of this country; but there can be little doubt that the law is the same in this country: although a doubt was once thrown on it, by the strong political opinion of Lord Mansfield, as to the policy of allowing trade with an enemy, or a.s.suring an enemy's property. The l.u.s.tre of his talents, and his ascendancy in the Court of King's Bench, were calculated to continue the delusion.

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