Commentaries on American Law (1826-30)
Chancellor James Kent
Of the Declaration, and Other Early Measures of a State of War
IN the last Lecture, we considered the principal rights and duties of nations in a state of peace; and if those duties were generally and duly fulfilled, a new order of things would arise, and shed a brighter light over the history of human affairs. Peace is said to be the natural state of man, and war is undertaken for the sake of peace, which is its only lawful end and purpose.1 War, to use the language of Lord Bacon,2 is one of the highest trials of right; for, as princes and states acknowledge no superior upon earth, they put themselves upon the justice of God by an appeal to arms. The history of mankind is an almost uninterrupted narration of a state of war, and it gives color to the extravagant theory of Hobbes,3 who maintains, that the natural state of war is a state of war of all against all; and it adds plausibility to the conclusions of those other writers, who, having known and studied the Indian character, insist that continual war is the natural instinct and appetite of man in a savage state. It is, doubtless, true, that a sincere disposition for peace, and a just appreciation of its blessings, are the natural and necessary result of science and civilization.
The right of self-defense is part of the law of our nature, and it is the indispensable duty of civil society to protect its members in the, enjoyment of their rights, both of person and property. This is the fundamental principle of the social compact. An injury either done or threatened, to the perfect rights of the nation, or of any of its members, and susceptible of no other redress, is a just cause of war. The injury may consist, riot only in the, direct violation of personal or political rights, but in wrongfully withholding what. is due, or in the refusal of a reasonable reparation for injuries committed, or of adequate explanation or security in respect to manifest and impending danger.4 Grotius condemns the doctrine, that war may be undertaken to weaken the power of a neighbor, under the apprehension that its further increase may render him dangerous. This would be contrary to justice, unless we were morally certain, not only of a capacity, but of an actual intention to injure us. We ought rather to meet the anticipated danger by a diligent cultivation, and prudent management of our own resources. We ought to conciliate the respect and good will of other nations, and secure their assistance in case of need, by the benevolence and the. justice of our conduct. War is riot to be resorted to without absolute necessity, nor unless peace would be more dangerous, and more miserable than war itself. An injury to an individual member of a state, is a just cause of war, if redress be refused; but a nation is not bound to go to war on so slight a foundation; for it may of itself grant indemnity to the injured party; and if this cannot be done, yet the good of the whole is to be preferred to the welfare of a part.5 Every milder method of redress is to be tried, before the nation makes an appeal to arms; and this is the sage and moral precept of the writers on natural law.
If the question of right between two powers he in any degree dubious, they ought to forbear proceeding to extremities; and a nation would be condemned by the impartial voice of mankind, if it voluntarily went to war upon a claim of which it doubted the legality. But, on political subjects, we cannot expect, and are not to look for, the same rigorous demonstration, as in the physical sciences. Policy is a science of calculations and combinations, arising out of tunes, places, and circumstances, and it cannot be reduced to absolute simplicity and certainty. We must act according to the dictates of a well-informed judgment, resting upon a diligent and careful examination of facts, and every pacific mode of redress is to be tried faithfully and perseveringly, before the nation resorts to arms.
If one nation be bound by treaty to afford assistance, in a case of war between its ally and a third power, the assistance is to be given whenever the casus foederis occurs; but a question will sometimes arise, whether the government which is to afford the aid, is to judge for itself of the justice of the war on the part of the ally, and to make the right to assistance depend upon its own judgment. Grotius is of opinion6 that treaties of that kind do not oblige us to participate in a war, which appears to be manifestly unjust on the part of the ally; and it is said to be a tacit condition annexed to every treaty made in time of peace, and stipulating to afford succors in time of war, that the stipulation is only to apply to a just war. To give assistance in an unjust war, on the ground of the treaty, would be contracting an obligation to do injustice, aid no such contract is valid.7 But to set up a pretext of this kind to avoid a positive engagement, is extremely hazardous, and it cannot be done, except in a very clear case, without exposing the nation to the imputation of a breach of public faith. In doubtful cases, the presumption ought rather to be in favor of our ally, and of the justice of his war.
The doctrine that one nation is not bound to assist another, under any circumstances, in a war clearly unjust, is similar to the principal in the feudal law, to be met with in the Book of Feuds, compiled from the usages of the Lombards, and forming a part of the common law of Europe, during the prevalence of the feudal system. A vassal refusing to assist his liege lord in a just war, forfeited his feud. If the justice of the war was even doubtful, or not known affirmatively to be unjust, the vassal was bound to assist; but if the war appeared to him to be manifestly unjust, he was under no obligation to help his lord to carry it on offensively.8
A nation which has agreed to render assistance to another, is not obliged to furnish it when the case is hopeless, or when giving the succors would expose the state itself to imminent danger. Such extreme cases are tacit exceptions to the obligation of the treaty; but the danger must not be slight, remote, or contingent, for this would be to seek a frivolous cause to violate a solemn engagement.9 In the case of a defensive alliance, the condition of the contract does not call for the assistance, unless the ally be engaged in a defensive war, for in a defensive alliance, the nation engages only to defend its ally; in case he be attacked, and even then we are to inquire whether he be not justly attacked.10 The defensive alliance applies only to the case of a war first commenced, in point of fact, against the ally, and the power that first declares, or actually begins the war, makes what is deemed, in the conventional law of nations, an offensive war.11 The treaty of alliance between France and the United States, in 1778, was declared, by the second article, to be a defensive alliance, and that declaration gave a character to the whole instrument, and consequently the guaranty, on the part of the United States, of the French possessions in America, could only apply to future defensive wars on the part of France. Upon that ground, the government of this country in 1793, did not consider themselves bound to depart from their neutrality, and to take part with France in the war in which she was then engaged.12 The war of 1793 was first actually declared and commenced by France, against all the allied powers of Europe, and the nature of the guaranty required us to look only to that fact.
In the ancient republics of Greece and Italy, the right of declaring war resided with the people, who retained, in their collective capacity, the exercise of a large portion of the sovereign power. Among the ancient Germans it belonged also to the popular assemblies,13 and the power was afterwards continued in the same channel, and actually resided in the Saxon Wittenagemote.14 But in the monarchies of Europe, which arose upon the ruins of the feudal system, this important prerogative was generally assumed by the king, as appertaining to the duties of the executive department of government. Many publicists, however,15 consider the power as a part of the sovereign authority of the state, of which the legislative department is an essential branch. There are, however, several exceptions to the generality of this portion; for in the limited monarchies of England, France, and Holland, the king alone declares war, and yet the power, to apply an observation of Vattel to the case, is but a slender prerogative of the crown, if the parliaments or legislative bodies of those kingdoms will act independently, since the king cannot raise the money requisite to carry on the war without their consent. The wild and destructive wars of Charles XII. led the states in Sweden to reserve to themselves the right of declaring war; and in the form of government adopted in Sweden in 1772,16 the right to make war was continued in the same legislative body. This was the provision in those ephemeral constitutions which appeared in Poland and France the latter part of the last century; and as an evidence of the force of public opinion on this subject, it may be observed, that in the constitution proposed by Bonaparte, on his reascension of the throne of France in 1815, the right to levy men and money for war was to rest entirely upon a law to be proposed to the House of Representatives of the people, and assented to by them. In this country, the power of declaring war, as well as of raising the supplies, is wisely confided to the legislature of the Union, and the presumption is, that nothing short of a strong case deeply affecting our essential rights, and which cannot receive a pacific adjustment, after all reasonable efforts shall have been exhausted, will ever prevail upon Congress to declare war.
It has been usual to precede hostilities by a public declaration communicated to the enemy. It was the custom of the ancient Greek and Romans, to publish a declaration of the injuries they had received, and to send a herald to the enemy’s borders to demand satisfaction, before they actually engaged in war; and invasions without notice were not looked upon as lawful.17 War was declared with religious preparation and solemnity. According to Ulpian,18 they alone were reputed enemies against whom the Roman people had publicly declared war. During the middle ages, a previous declaration of war was held to be requisite by the laws of honor, chivalry, and religion. Lewis IX. refused to attack the Sultan of Egypt until he made a previous declaration to him by a herald at arms, and one of his successors sent a herald with great formality to the Governor of the Low Countries, when he declared war against that power in 1635.19 But, in modern times, the practice of a solemn declaration made to the enemy has fallen into disuse, and the nation contents itself with making a public declaration of war within its own territory, and to its own people. The jurists are, however, divided in opinion, in respect to the necessity or justice of some previous declaration to the enemy in the case of offensive war. Grotius20 considers a previous demand of satisfaction, and a declaration, as requisite to a solemn and lawful war; and Pufendorf21 holds acts of hostility, which have not been preceded by a formal declaration of war, to be no better than acts of piracy and robbery. Emerigon22 is of the same opinion; and he considered the hostilities exercised by England in the year 1755, prior to any declaration of war, to have been in contempt of the law of nations, and condemned by all Europe. Vattel strongly recommends23 a previous declaration of war, as being required by justice and humanity; and he says, that the fecial law of the Romans gave such moderation and religious solemnity to a preparation of war, and bore such marks of wisdom and justice, that it laid the solid foundation of their future greatness.
Bynkershoek has devoted an entire chapter to this question,24 and he maintains, that a declaration of war is not requisite by the law of nations, and that though it may very properly be made, it cannot be required as a matter of right. The practice rests entirely on manners and magnanimity, and it was borrowed from the ancient Romans. All that he contends for is, that a demand of what we conceive to be due should be previously made. We are not bound to accompany that demand with threats of hostility, or to follow it with a public declaration of war; and he cites many instances to show, that within the two last centuries, wars have been frequently commenced without a previous declaration. Since the time of Bynkershoek, it has become settled by the practice of Europe, that war may lawfully exist by a declaration which is unilateral only, or without a declaration on either side. It may begin with mutual hostilities.25 Since the peace of Versailles in 1763, formal declarations of war of any kind seem to have been discontinued, and all the necessary and legitimate consequences of war flow at once from a state of public hostilities, duly recognized, and explicitly announced, by a domestic manifesto or state paper. In the war between England and France in 1778, the first public act on the part of the English government, was recalling its minister, and that single act was considered by France as a breach of the peace between the two countries. There was no other declaration of war, though each government afterwards published a manifesto in vindication of its claims and conduct. The same thing may be said of the war which broke out in 1793, and again in 1803; and, indeed, in the war of 1756, though a solemn and formal declaration of war, in the ancient style, was made in June, 1756, vigorous hostilities had been carried on between England and France for a year preceding. In the war declared by the United States against England in 1812, hostilities were immediately commenced on our part, as soon as the act of Congress was passed, without waiting to communicate to the English government any notice of our intentions.
But, though a solemn declaration, or previous notice to the enemy, be now laid aside, it is essential that some formal public act, proceeding directly from the competent source, should announce to the people at home their new relations and duties growing out of a state of war, and which should equally apprize neutral nations of the fact, to enable them to conform their conduct to the rights belonging to the new state of things. War, says Vattel,26 is at present published and declared by manifestoes. Such an official act operates from its date to legalize all hostile acts, in like manner as a treaty of peace operates from its date to annul them. As war cannot lawfully be commenced on the part of the United States, without an act of Congress, such an act is, of course, a formal official notice to all the world, and equivalent to the most solemn declaration.
When war is duly declared, it is not merely a war between this and the adverse government in their political characters: Every man is, in judgment of law, a party to the acts of his own government, and a war between the governments of two nations, is a war between all the individuals of the one, and all the individuals of which the other nation is composed. Government is the representative of the will of all the people, and acts for the whole society. This is the theory in all governments; and the best writers on the law of nations concur in the doctrine, that when the sovereign of a state declares war against another sovereign, it implies that the whole nation declares war, and that all the subjects of the one are enemies to all the subjects of the other.27 Very important consequences concerning the obligations of subjects are deducible from this principle.
When hostilities have commenced, the first objects that naturally present themselves for detention and capture, are the persons and property of the enemy, found within the territory at the breaking out of the war. According to strict authority, a state has a right to deal as an enemy with persons and property so found within its power, and to confiscate the property, and detain the persons as prisoners of war.28 No one, says Bynkershoek, ever required that notice should be given to the subjects of the enemy, to withdraw their property, or it would be forfeited. The practice of nations is to appropriate it at once, without notice, if there he no special convention to the contrary. But, though Bynkershoek lays down this, as well as other rules of war, with great harshness and severity, he mentions several instances arising in the 17th, and one as early as the 15th century, of stipulations in treaties, allowing foreign subjects a reasonable time after the war breaks out, to recover and dispose of their effects, or to withdraw them. Such stipulations have now become an established formula in commercial treaties.29 Emerigon30 considers such treaties as an affirmance of common right, or the public law of Europe, and the general rule laid down by some of the later publicists, is in conformity with that provision.31 The sovereign who declares war, says Vattel, can neither detain those subjects of the enemy who are within his dominions at the time of the declaration of war, nor their effects. They came into the country under the sanction of public faith. By permitting them to enter his territories, and continue there, the sovereign tacitly promised them protection and security for their return. He is, therefore, to allow them a reasonable time to retire with their effects, and if they stay beyond the time, he has a right to treat them as disarmed enemies, unless detained by sickness, or other insurmountable necessity, and then they are to be allowed a further time. It has been frequently provided by treaty, that foreign subjects should be permitted to remain, and continue their business, notwithstanding a rupture between the governments, so long as they conducted innocently; and when there was no such treaty, such a liberal permission has been often announced in the very declaration of war.32 Sir Michael Foster33 mentions several instances of such declarations by the King of Great Britain; and he says that aliens were thereby enabled to acquire personal chattels, and to maintain actions for the recovery of their personal rights, in as full a manner as alien friends.
Besides those stipulations in treaties, which have softened the rigors of war by the civilizing spirit of commerce, many governments have made special provision, in their own laws and ordinances, for the security of the persons and property of enemy’s subjects, found in the country at the commencement of war.
It was provided by Magna Charta34 that, upon the breaking out of war, foreign merchants found in England, and belonging to the country of the enemy, should be attached, “without harm of body or goods,” until it was known how English merchants were treated by the enemy; and “if our merchants,” said the charter, “be safe and well treated there, theirs shall be likewise with us.” It has been deemed extraordinary, that such a liberal provision should have found a place in a treaty between a feudal king and his barons; and Montesquieu35 was struck with admiration at the fact, that a protection of that kind should have been made one of the articles of English liberty. But this provision was confined to the effects of alien merchants, who were within the realm at the commencement of the war, and it was understood to be confined to the case of merchants domiciled there.36 It was accompanied also with one very ominous qualification, and it was at least equaled, if not greatly excelled, by an ordinance of Charles V. of France, a century afterwards, which declared that foreign merchants, who should be in France at the time of the declaration of war, should have nothing to fear, for they should have liberty to depart freely, with their effects.37 The spirit of the provision in magna charta was sustained by a resolution of the judges, in the time of Henry VIII., when they resolved that if a Frenchman came to England before the war, neither his person or goods should be seized.38 The statute of staples, of 27 Edw. III c. 17. made still a more liberal and precise enactment in favor of foreign merchants, residing in England when war commenced between their prince and the king of England. They were to have convenient warning of forty days, by proclamation, to depart the realm, with their goods; and if they could not do it within that time, by reason of accident, they were to have forty days more to pass with their merchandise, and with liberty, in the mean time, to sell the same. The act of Congress of the 6th of July, c. 73. was dictated by the same humane and enlightened policy. It authorized the President, in case of war, to direct the conduct to be observed towards subjects of the hostile nation, and being aliens, and within the United States, and in what cases, and upon what security, their residence should be permitted; and it declared, in reference to those who were to depart, that they should be allowed such reasonable time as might be consistent with the public safety, and according to the dictates of humanity and national hospitality, “for the recovery, disposal, and removal of their goods and effects, and for their departure.”
But however strong the current of authority in favor of the modern and milder construction of the rule of national law on this subject, the point seems to be no longer open for discussion in this country; and it has been definitively settled, in favor of the ancient and sterner rule, by the Supreme Court of the United States.39 The effect of war upon British property, found in the United States, on land, at the commencement of the war, was learnedly discussed, and thoroughly considered, in the case of Brown; and the Circuit Court of the United States, at Boston, decided,40 as upon a settled rule of the law of nations, that the goods of the enemy found in the country, and all the vessels and cargoes found afloat in our ports, at the commencement of hostilities, were liable to seizure and confiscation; and the exercise of the right rested in the discretion of the sovereign of the nation. When the case was brought up, on appeal, before the Supreme Court of the United States, the broad principle was assumed, that war gave to the sovereign full right to take the persons, and confiscate the property of the enemy, wherever found; and that the mitigations of this rigid rule, which the wise and humane policy of modern times had introduced into practice, might, more or less, affect the exercise of the right, but could not impair the right itself. Commercial nations have always considerable property in the possession of their neighbors; and, when war breaks out, the question what shall be done with the enemy’s property found in the country, is one rather of policy than of law, and is one properly addressed to the consideration of the legislature, and not to the courts of law. The strict right of confiscation of that species of property existed in Congress, and without a legislative act authorizing its confiscation, it could not be judicially condemned; and the act of Congress of 1812, declaring war against Great Britain, was not such an act, Until some statute directly applying to the subject, be passed, the property would continue under the protection of the law, and might he claimed by the British owner, at the restoration of peace.
Though this decision established the right, contrary to much of modern authority and practice, yet a great point was gained over the rigor and violence of the ancient doctrine, by making the exercise of the right to depend upon a special act of Congress.
The practice, so common in modern Europe, of imposing embargoes at the breaking out of hostility, has, apparently, the effect of destroying that protection to property which the rule of faith and justice gives to it, when brought into the country in the course of trade, and in the confidence of peace. Sir William Scott, in the case of the Boedes Lust,41 explains this species of embargo to be an act of a hostile nature, and amounting to an implied declaration of war, though liable to be explained away and annulled, by a subsequent accommodation between the nations. The seizure is at first equivocal; and if the matter in dispute terminates in reconciliation, the seizure becomes a mere civil embargo; but if it terminates otherwise, the subsequent hostilities have a retroactive effect, and render the embargo a hostile measure, ab initio. The property detained is deemed enemy’s property, and liable to condemnation. This species of reprisal for some previous injury, is laid down in the books as a lawful measure, according to the usage of nations;42 but it is often reprobated, and it cannot well be distinguished from the practice of seizing property found within the territory upon the declaration of war. It does not differ in substance from the conduct of the Syracusans, in the time of Dionysius the Elder, (and which Mitford considered to be a gross violation of the law of nations,) for they voted a declaration of war against Carthage, and immediately seized the effects of Carthaginian traders in their warehouses, and Carthaginian richly-laden vessels in their harbor, and then sent a herald to Carthage to negotiate.43 But this act of the Syracusans, near four hundred years before the Christian sera, was no more than what is the ordinary practice in England, according to the observation of Lord Mansfield, in Lindo v. Rodney.44 “Upon the declaration of tear or hostilities, all the ships of the enemy,” he says, “are detained in our ports, to be confiscated, as the property of the enemy, if no reciprocal agreement is made.”
Another question respecting the effect of a declaration of war upon property, arose in the case of the Rapid.45 It was held, that after the commencement of war, an American citizen could not lawfully send a vessel to the enemy’s country, to bring home his own property, without rendering it liable to seizure, in transitu, as enemy’s property. Every thing that issues from a hostile country is, prima facie, the property of the enemy, and a citizen cannot lawfully be concerned in any commercial intercourse with the enemy. The English courts were formerly inclined to allow goods, in the enemy’s country at the beginning of the war, to be brought home; but it is now the settled law, that it cannot be done safely, without a license from the government.46
The claim of a right to confiscate debts, contracted by individuals in time of peace, and which remain due to subjects of the. enemy at the declaration of war, rests very much upon the same principle as that concerning enemy’s tangible property found in the country at the opening of the war; though C think the objection to the right of confiscation, in this latter case, is much stronger. In former times, the right to confiscate debts was admitted as a doctrine of national law, and Grotius, Pufendorf, and Bynkershoek, pronounce in favor of it.47 It had the countenance of the civil law,48 and even Cicero, in his Offices,49 when stating the cases in which promises are not to be kept, mentions that of the creditor becoming the enemy of the country of the debtor. Down to the year 1737, the general opinion of jurists was in favor of the right; but Vattel says, that a relaxation of the rigor of the rule has since taken place among the sovereigns of Europe, and that, as the custom has been generally received, he who should act contrary to it, would injure the public faith; for strangers trusted his subjects only from a firm persuasion that the general custom would be observed.50 There has frequently been a stipulation in modern treaties, that debts should not be confiscated in the event of war; and these conventional provisions are evidence of the sense of the governments which are parties to them, and that the right of confiscation of debts and things in action, is against good policy, and ought to be discontinued. The recent treaty between the United States and Colombia contains such a provision; but the treaty between the United States and Great Britain, in 1795, went further, and contained the explicit declaration, that it was unjust and impolitic,” that the debts of individuals should be impaired by national differences. A very able discussion of this assumed right to confiscate debts, was made by General Hamilton, in the numbers of Camillus, published in 1795. He examined the claim to confiscate private debts, or private property in banks, or in the public funds, on the grounds of reason and principle, on those of policy and expediency, on the opinion of jurists, on usage, and on conventional law; and his argument against the justice and policy of the claim was exceedingly powerful, He contended it to be against good faith for a government to lay its hands on private property, acquired by the permission, or upon the invitation of the government, and under a necessarily implied promise of protection and security. Vattel says, that every where, in case of a war, funds credited to the public are exempt from confiscation and seizure. Emerigon51 and Martens52 make the same declaration. The practice would have a very injurious influence upon the general sense of the inviolability and sanctity of private contracts; and with debtors who had a nice and accurate sense of justice and honor, the requisition of government would not be cheerfully or readily obeyed. Voltaire has given53 a striking instance of the impracticability of confiscating property deposited in trust with a debtor, and of the firmness of Spanish faith. When war was declared between France and Spain, in 1684, the king of Spain endeavored to seize the property of the French in Spain, but not a single Spanish factor would betray his French correspondent.
Notwithstanding the weight of modern authority, and of argument, against this claim of right on the part of the sovereign, to confiscate the debts and funds of the subjects of his enemy during war, the judicial language in this country is decidedly in support of the right. In the case of Brown v. The United States,54 already mentioned, Judge Story, in the Circuit Court in Massachusetts, laid down the right to confiscate debts, and enemy’s property found in the country, according to the rigorous doctrine of the jurists; and he said the opinion was fully confirmed by the judgment of the Supreme Court in Hare v. Hylton,55 where the doctrine was explicitly asserted by some of the judges, reluctantly admitted by others, and denied by none. Chief Justice Marshall, in delivering the opinion of the Supreme Court, in the case of Brown, observed, that between debts contracted under the faith of laws, and property acquired in the course of trade on the faith of the same laws, reason drew no distinction, and the right of the sovereign to confiscate debts, was precisely the same with the right to confiscate other property found in the country. This right, therefore, was admitted to exist as a settled and decided right, stricto jure; though, at the same time, it was conceded to be the universal practice, to forbear to seize and confiscate debts and credits. We may, therefore, lay it down as a principle of public law, so far as the same is understood and declared by the highest judicial authorities in this country, that it rests in the discretion of the legislature of the Union, by a special law for that purpose, to confiscate debts contracted by our citizens, and due to the enemy; but, as it is asserted by the same authority, this right is contrary to universal practice, and it may, therefore, well be considered as a naked and impolitic right, condemned by the enlightened conscience and judgment of modern times.
If property should have been wrongfully taken by the state before the war, and be in the country at the opening of the war, such property cannot be seized, but must be restored; because, to confiscate that species of enemy’s property would be for the government to take advantage of its own wrong. The celebrated Report of the English law officers of the crown in 1753, in Answer to the Prussian Memorial, stated, that French ships taken before the war 1741, were, during the heat of the war with France, as well as afterwards, restored by sentences of the admiralty courts to the French owners. No such property was ever attempted to be confiscated; for had it not been for the wrong done, the property would not have been within the king’s dominions. And yet even such property is considered to be subject to the rule of vindictive retaliation: and Sir Wm. Scott observed, in the case of the Santa Cruz,56 that it was the constant practice of England, to condemn property seized before the war, if the enemy condemns, and to restore, if the enemy restores.
One of the immediate and important consequences of the declaration of war, is the absolute interruption and interdiction of all commercial correspondence, intercourse, and dealing, between the subjects of the two countries. The idea that any commercial intercourse, or pacific dealing, can lawfully subsist between the people of the powers at war, except under the clear and express sanction of the government, and without a special license, is utterly inconsistent with the new class of duties growing out of a state of war. The interdiction flows, necessarily, from the principle already stated, that a state of war puts all the members of the two nations respectively in hostility to each other; and to suffer individuals to carry on a friendly or commercial intercourse, while the two governments were at war, would be placing the act of government, and the acts of individuals, in contradiction to each other. It would counteract the operations of war, and throw obstacles in the way of public efforts, and lead to disorder, imbecility, and treason. Trading supposes the existence of civil contracts and relations, and a reference to courts of justice; and it is, therefore, necessarily, contradictory to a state of war. It affords aid to the enemy in an effectual manner, by enabling the merchants of the enemy’s country to support their government, and it facilitates the means of conveying intelligence, and carrying on a traitorous correspondence with the enemy. These considerations apply with peculiar force to maritime states, where the principal object is to destroy the marine and commerce of the enemy, in order to force them to peace.57 It is a well-settled doctrine in the English courts, and with the English jurists, that there cannot exist, at the same time, a war for arms, and a peace for commerce. The war puts an end at once to all dealing, and all communication, with each other, and places every individual of the respective governments, as well as the governments themselves, in a state of hostility. This is equally the doctrine of all the authoritative writers on the law of nations, and of the maritime ordinances of all the great powers of Europe. It is equally the received law of this country, and was so decided frequently by the Congress of the United States during the revolutionary war, and again by the Supreme Court of the United States during the course of the last war; and it is difficult to conceive of a point of doctrine more deeply or extensively rooted in the general maritime law of Europe, and in the universal and immemorial usage of the whole community of the civilized world.
It follows, as a necessary consequence of the doctrine of the illegality of all intercourse or traffic, without express permission, that all contracts with the enemy, made during war, are utterly void. The insurance of enemy’s property is an illegal contract, because it is a species of trade and intercourse with the enemy. The drawing of a bill of exchange, by an alien enemy, on a subject of the adverse country, is an illegal and void contract, because it is a communication and contract. The purchase of bills on the enemy’s country, or the remission and deposit of funds there, is a dangerous and illegal act, because it may be cherishing the resources, and relieving the wants of the enemy. The remission of funds, in money or bills, to subjects of the enemy, is unlawful. The inhibition reaches to every communication, direct or circuitous. All endeavors at trade with the enemy, by the intervention of third persons, or by partnerships, have equally failed, and no artifice has succeeded to legalize the trade, without the express permission of the government.58 Every relaxation of the rule tends to corrupt the allegiance of the subject, and prevents the war from fulfilling its end. The only exception to this strict and rigorous rule of international jurisprudence is the case of ransom bills, and they are contracts of necessity, rounded on a state of war, and engendered by its violence. It is also a further consequence of the inability of the subjects of the two states, to commune or carry on any correspondence or business together, that all commercial partnerships existing between the subjects of the two parties, prior to the war, are dissolved by the mere force and act of the war itself; though other contracts existing prior to the war, are not extinguished, but the remedy is only suspended, and this from the inability of an alien enemy to sue, or to sustain, in the language of the civilians, a persona standi in judicio. The whole of this doctrine respecting the illegality of any commercial intercourse between the inhabitants of two nations at war, was extensively reviewed, and the principal authorities, ancient and modern, foreign and domestic, were accurately examined, and the positrons which have been laid down established, in the case of Griswold v. Waddington, decided in the Supreme Court of this state, and afterwards affirmed on error.59
This strict rule has been carried so far in the British admiralty, as to prohibit a remittance of supplies even to a British colony, (luring its temporary subjection to the enemy, and when the colony was under the necessity of supplies, and was only very partially and imperfectly supplied by the enemy.60 The same interdiction of trade applies to ships of truce, or cartel ships, which are a species of navigation intended for the recovery of the liberty of prisoners of war. Such a special and limited intercourse is dictated by policy and humanity, and it is indispensable that it be conducted with the most exact and exclusive attention to the original purpose, as being the only condition upon which the intercourse can be tolerated. All trade, therefore, by means of such vessels, is unlawful, without the express consent of both the governments concerned.61 It is equally illegal for an ally of one of the belligerents, and who carries on the war conjointly, to have any commerce with the enemy. A single belligerent may grant licenses to trade with the enemy, and dilute and weaken his own rights at pleasure, but it is otherwise when allied nations are pursuing a common cause. The community of interest, and object, and action, creates a mutual duty not to prejudice that joint interest; and it is a declared principle of the law of nations, founded on very clear and just grounds, that one of the belligerents may seize, and inflict the penalty of forfeiture, on the property of a subject, of a co-ally, engaged in a trade with the common enemy, and thereby affording him aid and comfort, whilst the other ally was carrying on a severe and vigorous warfare. It would be contrary to the implied contract in every such warlike confederacy, that either of the belligerents, without the other’s consent, should do any thing to defeat the common object.62
In the investigation of the rules of the modern law of nations, particularly with regard to the extensive fiend of maritime capture, reference is generally and freely made to the decisions of the English courts. They are in the habit of taking accurate and comprehensive views of general jurisprudence, and they have been deservedly followed by the courts of the United States, on all the leading points of national law. We have a series of judicial decisions is England, and in this country, in which the usages and the duties of nations are explained and declared with that depth of research, and that liberal and enlarged inquiry, which strengthens and embellishes the conclusions of reason. They contain more intrinsic argument, more full and precise details, more accurate illustrations, and are of more authority, than the loose dicta of elementary writers. When those courts in this country, which are charged with the administration of international law, have differed from the English adjudications, we must take the law from domestic sources; but such an alternative is rarely to be met with, and there is scarcely a decision in the English prize courts at Westminster, on any general question of public right, that has not received the express approbation and sanction of our national courts. We have attained the rank of a great commercial nation; and war, on our part, is carried on upon the same principles of maritime policy which have directed the forces, and animated the councils of the naval powers of Europe. When the United States formed a component part of the British empire, our prize law and theirs was the same; and after the revolution it continued to be the same, as far as it was adapted to our circumstances, and was not varied by the power which was capable of charming it. The great value of a series of judicial decisions, in prize cases, and on other questions depending on the law of nations, is, that they liquidate, and render certain and staple, the loose general principles of that law, and show their application, and how they are understood in the country where the tribunals are sitting. They are, therefore, deservedly received with very great respect, and as presumptive, though not conclusive evidence of the law in the given case. This was the language of the Supreme Court in the United States, so late as 1815,63 and the decisions of the English High Court of Admiralty, especially since the year 1798, have been consulted and uniformly respected by that court, as enlightened commentaries on the law of nations, and affording a vast variety of instructive precedents, for the application of the principles of that law. They have also this to recommend them: that they are pre-eminently distinguished for sagacity, wisdom, and learning, as well as for the chaste and classical beauties of their composition.
Many of the most important principles of public law have been brought into use, and received a practical application, and been reduced to legal precision, since the age of Grotius and Pufendorf; and we must resort to the judicial decisions of the prize tribunals in Europe, and in this country, for information and authority on a great many points, on which all the leading text books have preserved a total silence. The complexity of modern commerce has swelled, beyond all bounds, the number and intricacy of questions upon national law, and particularly upon the very comprehensive head of maritime capture. The illegality and penal consequences of trade with the enemy; the illegality of carrying enemy’s dispatches, or of engaging in the coasting, fishing, or other privileged trade of the enemy; the illegality of transfers of property in transitu, between the neutral and the belligerent; the rules which impress upon neutral property a hostile character, arising either from the domicile of the neutral owner, or his territorial possessions, or his connection in a house in trade in the enemy’s country, are all of them doctrines in the modern international law, which are either not to be found at all, or certainly not with any fulness of discussion, and power of argument, any where, but in the judicial investigations to which I have referred, and which have given the highest authority and splendor to this branch of learning.
1. Cic. de Off. 1, 11, and 23. Grotius, b. l. ch. 1. Burlamaqui, part 4. c. 1. sec. 4. Vattel, b. 4. c. 1.
2. Bacon’s Works, vol. 3. p. 40.
3. Leviathan, part l, c. 13.
4. Grotius, b. 2. c. 1. and 22. Rutherforth, b. 2. c. 9. Vattel, b. 3. c. 3. sec. 26.
5. Grotius, b.2. c. 22-25. Rutherforth, b. 2. e. 9.
6. B. 2 ch. 25
7. Vattel, b. 2. c. 12. sec. 168, b. 3. c. 6. c. sec. 86, 87.
8. Feud. lib. 2. tit. 28. sec. 1.
9. Vattel, b. 3. c. c. 6. sec. 93.
10. Vattel, b. 3. c. 6. sec. 79.
11. A war may be defensive in its principles, though offensive in its operation, as where attack is the best mode to repel a Menaced invasion, and the casus foederis of a defensive alliance will apply. Vattel, b. 3. c. 6. sect. 91, 100. Edin, Review, No. 89, p. 244, 5.
12. See Pacificus, written in 1793, by Mr. Hamilton, then Secretary of the Treasury, and see the Instructions from the Secretary of State to the American Ministers to France, July 15th, 1797.
13. Tacit. de M. G. c. 11.
14. Millar’s View of the English Government, b. 1. c. 7.
15. Puff. b. 8. c. 6. sec. 10. Vattel, b. 3. c. 1. sec. 4.
16. Art. 48.
17. Potter’s Antiquities of Greece, b. 3. c. 7. Livy, b. 1. c. 22. Cic. de Off. b. 1. c 11.
18. Dig. 49. 15. 24.
19. 1 Emerigon, Traite des Ass. p. 561.
20. B. 1. c. 3. sec. 4.
21. B. 8. c. 6. sec. 9.
22. Traite des Ass. tom. 1. p. 563.
23. B. 3. c. 4. sec. 51.
24. Quaest. J. Pub. b. 1. c. 2.
25. Sir Wm. Scott, 1 Dodson’s Adm. Rep. 247.
26. B. 3. c. 4. sec. 64.
27. Grotius, b. 3. c. 3. sec. 9. c. 4. sec. 8. Burlamaqui, part 4. c. 4. sec. 20. Vattel, b. 3. c. 5.4ec. 70.
28. Grotius, b 3. c. 9. sec 4. c. 21. sec. 9. Bynk. Quaest. Pub. J. c. 2. and 7. Martens, b. 8. c. 2. sec. 5.
29. A liberal provision of this kind is inserted in the recent treaty of amity and commerce between the United States and the republic of Colombia, which was ratified at Washington, May 27, 1825.
30. Tom. 1. p. 567.
31. Vattel, b. 3. c. 4. sec. 63. Azuni, part 2. c. 4. art. 2. sec. 7. Le Droit Public de L’Europe, par Mably, (uvres, tom. 6. p. 334.
32. Vattel, b. 3. c. 4. 63.
33. Discourse of High Treason, p. 185, 186.
34. Ch. 30.
35. Esprit des Loix, 20. 14,
36. 1 Hale’s P. C. 93.
37. Henault’s Abreg. Chron. tom. 1. 338.
38. Bro. tit. Property. pl. 38. Jenk. Cent. 201, case 22.
39. Brown v. The United States, 2 Cranch, 110. See also Ibid, 228, 229.
40. 1 Gallison, 563
41. 5 Rob. 233.
42. Vattel, b. 2. c. 18. sec. 342, 344. Martens, 269.
43. Mitf. Hist. of Greece, vol 5. 402-4.
44. Doug. 613.
45. 8 Cranch, 155.
46. Bell v. Potts. 8 Term, 543. The Ocean, 5 Rob. Rep. 90. The Juffrow Catharina, Ib. 141.
47. Grotius, b. 1. ch. 1. sec. 6. b. 3. ch. 8. sec. 4. Puff lib. a. ch. 6, 19, 20. Bynk. lib. 1. ch. 7.
48. Dig. 41. 1. and 49. 15.
49. Lib. 3. c. 26.
50. Vattel, b. 3. c. 5. sec. 77.
51. Des Ass. tom. 1. 567.
52. B. 8. c. 2. sec. 5.
53. Essai sur les Moeurs et l’Esprit des Nations.
54. 8 Cranch, 110.
55. 3 Dallas, 199.
56. 1 Rob. Rep. 42.
57. 1 Chitty on Commercial Law, 373.
58. 3 Rob. 22. 4 Rob. 8, 79. 6 Rob. 127
59. 15 Johnson’s Rep. 57. 16 Johnson, 438. S. C.
60. Case of the Bella Guidita, in 1785, cited in the case of the Hoop, 1 Rob. Rep. 174.
61. The Venus, 4 Rob. 355. The Carolina, 6 Rob. 336.
62. The Nayade, 4 Rob. 251. The Neptunus, 6 Rob. 403.
63. 9 Cranch, 198.