Year: 1861




The prospect of hostilities between the United


States Government and the Confederate States,


renders some inquiry into the law of nations on
this subject appropriate and interesting. What
are the legal consequences, and what the practical
bearing, of a state of war upon the individual
rights of citizens of the two Confederacies having
dealings with each other, are questions which
| should be clearly understood. As a contribution
from standard authority to general stock of
| knowledge on the subject, we quote some extracts
from Kent's Commentaries, as found in lecture Sd,
| on the Law of Nations, vol. l.


| INTERDIoTIoN OF COMMERCIAL INTERCOURSE
One of the immediate and important conse.
quences 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 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 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 COM
mercial intercourse, while the two Governments
were at war, would be placing the acts of Govern
ment and the acts of individuals in contradiction to
each other.


IL would counteract the operations of war, and
throw obstacles in the way of the public efforts
ana iead to disorder, imbecility, and treason.
Iradlng supposes the existence of civil contracts
and relations, and reference to courts of instice.
and 1T is, therefore, necessarily Contradictory in
state of war. 1t affords aid to an enemy in an af
fectual manner, by enabling the merchants of the
enemy,s country to support their Government and
1t facilitates the means of conveying intelligence
and carrying on traitorous correspondence with
tne enemy. These considerations apply with Pc
cuilar force to maritime States, where the princi-
pal object is to destroy the marine and commerce.
OF the enemy in order to force them to peace 1t
is a well settled doctrine in the English courts and
with the English jursts that there cannot exist at
the same time, war for arms and peace for COM
merce.


The war puts an end at once to all DEALINGS and
all communication with each other, and places ey-
cry individual of the respective Governments az
well as the Governments themselves in a state of
hostility. This is equally the doctrine of ali the
authoritative writers on the law of nations, and of
the maritime ordinances of all the great Powers
of Europe. 1t is equally the received law of this
country, and was so decided frequently by the
Congress of the United States during the Reyolu-
tionary war, and again by the Supreme Court of
the United States, during the course of the last
war; and 1t is difficult to conceive of point of doc
trlne more deeply or extensively rooted in the
general maritime law OF Europe, and in the uni
versal and inmemoria usage of the whole commu-
nifty OF the civilized world.


d
trine of the illegality of all intercourse or traffic
without express permission, that all contracts with
the enemy made during utterly void. The
insurance OF enemy's property is illegal con-
tract because it is species oftrade and intercourse
with the enemy. The drawing of bill of exchange
by an alien enemy, on subject of the adverse
country, is an illegal and void contract because it
Is Communication and contract. The purchase
OF bills on the enemy's country, the remission
and deposit of funds there, is dangerous and lille
gal act because 1T may be cherishng the resources
and relieving the wants of the enemy. The remis-
sion of funds, in money bills, subjects of the
enemy, is unlawful. The inhibition reaches to
every communication, direct or circuitous. All
endeavors to trade with the enemy, by the inter-
vention of the third persons, or by partnerships
nave equally failed and no artifice has succeeded
to legaize the trade without the express permission
OF the government. 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 contracts of necessity
founded on state of war, and engendered by it's
violence. 1t is also further consequence of the
inability of the subjects of the two States to com.
mune or carry on any correspondence business
together that all commercial partnerships, exist
ing 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
medy is only suspended, and is from the inability
OF an alien enemy to to sustain, in the Ian
guage of the civilians, persona staIdt in judicio
The whole of this doctrine respecting the illegali
ty of any commercial intercourse between the in
habitants of two nations at extensively
reviewed, and the principal authorities, ancient
and modern, foreign and domestic, were accurate
ly examined, and the positions which have been
laid down established, in the of Griswold Us.
Waddngton, decided in the Supreme Court of this
State, and afterwards affirmed on error.