other property belonging to British subjects within the limits of the United States.

During the Civil War, Congress passed the Non-Intercourse Act of July 13, 1861 (12 Stat. L. 255). It empowered the President by proclamation to declare that the inhabitants of a State or a part thereof were to be considered in insurrection, "and thereupon all commercial intercourse by and between the same and the citizens thereof and the citizens of the rest of the United States shall cease and be unlawful so long as such condition of hostility shall continue; and all goods and chattels, wares and merchandise, coming from such State or section into the other parts of the United States, and all proceeding to such State or section, by land or water, shall, together with the vessel or vehicle conveying the same, or conveying persons to or from such State or section be forfeited to the United States."

On August 16, 1861 (12 Stat. L. 1263), the President issued a proclamation declaring certain states in insurrection. Congress passed an additional act on May 2, 1862 (12 Stat. L. 404), followed by the proclamation of March 31, 1863. A further act was passed July 2, 1864 (13 Stat. L. 375), followed by the proclamation of September 24, 1863 (13 Stat. L. 721).

Shortly after the outbreak of the Spanish-American War, on April 27, 1898, the Treasury Department issued certain instructions forbidding clearances of American vessels for Spanish ports, but placing no restriction on the clearances of other vessels for such enemy ports provided they did not carry contraband or coal. Thus, the clearance of a neutral ship with an American owned cargo for a Spanish port was permitted, and to this extent trading was allowed. 7 Moore, International Law Digest, section 1135.

For a history of the present Act of Congress of October 6, 1917, see infra, p. 33.

Development of the doctrine by the English and American courts.

The Black Book of the Admiralty, Twiss' ed., 69, contains a passage directing inquests to be had of all who trade or communicate with the enemy without a royal license. "Item, soit enquis de tous ceulx qui entrecommunent, vendent, ou achatent, avec aucuns des ennemis de nostre seigneur le roy sans licence especiale du roi, ou de son admiral."

In 13 Edw. 2, we find a case at common law in which the keepers of the truce gave license to certain men to sell and buy their goods in Scotland, which was then at war with England, and the merchants were impleaded on this act and though the license was held void, they were pardoned. 2 Roll. Abr. 173. In the Case of the Monopolies, East India Co. v. Sandys (1684), 7 St. R. 493, 2 Show. 366, Skinner, 132, great stress was laid in the arguments of counsel on the illegality of trading with enemies. The case itself was one relating to the validity of the exclusive monopoly granted to the East India Company to trade with the subjects of the Great Mogul, who, as infidels, were in the legal position of enemies.

But the doctrine was only slowly recognized by the courts of common law, and towards the close of the eighteenth century, Lord Mansfield in Gist v. Mason (1786), 1 T. R. 88, was obliged to say: "I know no cases that prohibit even a subject trading with the enemy, except two; one of which is a short note in Roll. Abr. (2 Roll. Abr. 173), where trading with Scotland, then in a general state of enmity with this kingdom, was held to be illegal, and the other was a note (which is now burned), which was given to me by Lord Hardwicke of a reference in King William's time to all the judges, whether it were a crime at common law to carry corn to the enemy in time of war; who were of opinion that it was a misdemeanor. By the maritime law, trading with

an enemy is cause of confiscation in a subject, provided he is taken in the act."

Baty and Morgan, War, its Conduct and Legal Results, 349, say that "it is extremely doubtful whether such things as the making of contracts with the enemy are, at common law anything worse than mere nullities," and it has been said that there is no reported instance of a conviction at common law for trading with the enemy. Bentwich, in 9 Am. J. of Int. L. 352.

The admiralty courts, however, always maintained the doctrine of the illegality of trading with the enemy, and confiscated any property involved in such trade. For a review of the early cases in admiralty, see The Hoop (1799), 1 C. Rob. 196, 1 Roscoe P. C. 104, the argument of Sir John Nicholl in Potts v. Bell (1800), 8 T. R. 548, and the opinion of Chancellor Kent in Griswold v. Waddington (1819), 16 John. (N. Y.) 438.

Since the decision in The Hoop, supra, the doctrine of the admiralty courts was adopted by the courts of common law, and has become firmly established in the case law of England and America. In the struggles at the beginning of the nineteenth century "the rule against trading with the enemy was applied with very great severity; with such severity, indeed, as occasionally to defeat the true purpose of the law and to lose any rational justification. . . . . . It was the policy of governments then to offer every possible encouragement to privateers so as to destroy the enemy's commerce, and in order to effect this object it was regular for prize courts to press the law in favor of the captors." Bentwich, War and Private Property, 50.

During the Crimean War some relaxation in the severity of application of the rule is noticeable, and the abolition of privateering by the Declaration of Paris of 1856, took away one of the reasons for the stringency of the prohibition. The decisions rendered during the Civil War in the United

States, however, show no relaxation of the rule, except the notable decision of the Supreme Court of the United States in M'Stea v. Matthews (1870), 91 U. S. 7, 23 L. ed. 188, in which it was held that the prohibition against trading did not arise except under a legislative enactment.

The few decisions rendered by the English courts during the Boer War manifest a greater liberality, but must be considered in the light of the special political circumstances. As the old law was early modified and embodied in legislative enactments in the British Empire during the present war, there has been less scope for the development of the common-law principles relating to this topic.

Grounds of illegality of trading with the enemy.

Writers and judges have given various reasons for the rule of law prohibiting trade with the enemy.

Grotius (De jure belli et pacis, III, c. 22, section 5) places it on the national duty of the subject not to trade with the enemies of his country, but this is not the theory of the present English and American legislation; the English courts (Bell v. Reid [1813], 1 M. & S. 726, more fully discussed, infra), have held that a non-resident subject may trade with the enemy.

The earlier English and American view is that such trade is prohibited on account of the danger to the state of any intercourse with persons in the enemy country; the Black Book of the Admiralty directs inquest of all who trade or communicate with the enemy. This is also the view of Lord Stowell in The Hoop (1799), 1 C. Rob. 196, 1 Roscoe P. C. 104: "Who can be insensible to the consequences that might follow if every person in time of war had a right to carry on a commercial intercourse with the enemy, and under color of that had the means of carrying on any other species of intercourse he might think fit." See The Jonge Pieter (1801), 4 C. Rob. 79, where the "political danger"

of such intercourse is adverted to. See also Antoine v. Morshead (1815), 6 Taunt. 237.

The American courts generally adopted this view. Thus, Story, J., in The Julia (1814), 8 Cr. 181, 3 L. ed. 528: "I lay it down as a fundamental proposition, that, strictly speaking, in war, all intercourse between the subjects and citizens of the belligerent countries is illegal, unless sanctioned by the authority of the government, or in the exercise of the rights of humanity. . . . The ground upon which a trading with the enemy is prohibited, is not the criminal intentions of the parties engaged in it, or the direct and immediate injury to the state. The principle is extracted from a more enlarged policy, which looks to the general interests of the nations, which may be sacrificed under the temptation of unlimited intercourse, or sold by the cupidity of corrupted avarice." This is also the basis of the decision in cases like The Rapid (1814), 8 Cr. 155, 3 L. ed. 615, where the acts held unlawful were obviously to the economic interest of the country penalizing them. See also 1 Kent's Commentaries, 67, quoted infra, p. 151.

The adoption of this view clearly justifies the prohibition of all forms of intercourse, even intercourse of a purely non-commercial character. See further, infra, p. 148. This view was rejected by some American judges in cases growing out of the War of 1812. Cp. United States v. Barker (1820), 1 Paine, 156, F. C. No. 14,159.

About the middle of the nineteenth century the view gains ground that the object of the prohibition against trading is the crippling of the resources of the enemy. Dana, in his edition of Wheaton, International Law, 876, n, gives this as the main reason. So also Willes, J., in Esposito v. Bowden (1857), 7 Ellis & B. 763: "It is now fully established that, the presumed object of war being as much to cripple the enemy's commerce as to capture his property, a declaration of war imports a prohibition of commercial intercourse