"The celebrated judgment of Sir William Scott, in the leading case of The Hoop, 1 C. Rob. 196, determined only that all trading with a public enemy, unless by permission of the sovereign, was interdicted; and that all property engaged in such trade was lawful prize of war. None of the numerous authorities there cited went beyond this. The principal reason assigned is, that in a state of war the question when and under what regulations commercial intercourse, which is a partial suspension of the war, shall be permitted, must be determined, on views of public policy, by the sovereign, who alone has the power of declaring war and peace; and not by individuals, upon their own notions of convenience, and possibly on grounds of private advantage, not reconcilable with the general interest of the State. In the case of The Indian Chief, 3 C. Rob. 22, the same principle was applied to the case of a foreign merchant resident in the British possessions in India. And all the later cases in the same court were of trading or licenses to trade with the enemy, directly or indirectly.
"It is true that, in the case of The Hoop, that eminent jurist does also somewhat rely upon the consideration of the total inability to enforce any contract by an appeal to the tribunals of the one country on the part of the
States or in England, and be within the protection and license of the government, his contract may be enforced.1 No valid subjects of the other. The rule is certainly well settled, that during any-war, foreign or civil, an action cannot be prosecuted by an enemy, residing in the enemy's territory, but must be stayed until the return of peace, or, in the words of the old books, donec terroe sint communes. Staunf. Prerog. fol. 39. Co. Litt. 129 6. Sanderson v. Morgan, 39 N. Y. 231. Whelan v. Cook, 29 Md. 1. But that rule temporarily restrains the remedy only, without denying or impairing the existence of the right; as was said by the Supreme Court of New York, while Chancellor Kent presided there, 'The present plea only bars the plaintiff, in his character of alien enemy com-morant abroad, from prosecuting the suit; it does not so much as touch the merits of the action.1 Bell v. Chapman, 10 Johns. 185. That it has nothing to do with the validity of the contract sued upon is manifest from the case of a ransom bill, which is universally admitted to be a lawful contract, and yet upon which no action can be maintained in a court of common law during the war, but may after the return of peace. Ricord v. Betten-ham, 3 Burr. 1734; s. c. 1 W. Bl. 563; Anthon v. Fisher, 2 Doug. 650; 8. c. 3 Doug. 178; Brandon v. Nesbitt, 6 T. R. 28 ; 1 Kent Coram. (6th ed.) 107. The reasons assigned by common-law judges for the plea of alien enemy are, that an enemy to our government shall not have the benefit and protection of its laws in its courts; and that the fruits of the action may not be remitted to a hostile country, and so furnish resources to the enemy. Hutchinson v. Brock, 11 Mass. 122 ; Sparenburgh v. Bannatyne, 1 Bos. & Pul. 170; M'Connell v. Hector, 3 Bos. & Pul. 114. The objection has not been much favored; for even in a real action, after the plaintiff has recovered judgment, alien enemy at the time of the original suit is no good plea to scire facias to obtain an execution: West v. Sutton, 2 Ld. Raym. 853 ; s. c. 1 Salk. 2; Holt, 3; and in a personal action brought by an alien friend, his becoming an enemy by the breaking out of war, which could not have been pleaded earlier, has been held no ground for staying judgment after verdict, or execution after judgment, or affirmance of a judgment on error. Vanbrynen v. Wilson, 9 East, 321; Buckley v. Lyttle, 10 Johns. 117; Owens v. Hanney, 9 Cranch, 180. No answer in the nature of a plea of alien enemy has been filed in this case, and no objection made to the capacity of the plaintiff to sue, but only to the validity of the contract sued on; and therefore no question of the personal disability of the plaintiff is involved, or need be considered, except so far as to show that it is wholly independent of the merits of the cause of action.
"In Potts v. Bell, 8 T. R. 548, the elaborate arguments of the common lawyers and civilians and the judgment of the court were confined to the question of the illegality of a British subject's trading with an enemy, and contract, however, except for the payment of ransom-money, whether express or implied, can subsist between a citizen of the the single point decided was that an insurance upon such trading was illegal. In Antoine v. Morshead, 6 Taunt. 237; s. c. 1 Marsh. 558; it was held that a bill of exchange drawn on England by a British subject imprisoned in France, payable to another British subject also imprisoned there, and indorsed to a French banker, during the war, might be sued upon by the latter in England after the return of peace; and Chief Justice Gibbs said: 'I can collect but two principles from the cases cited by the counsel for the defendant, and they are principles on which there never was the slightest doubt. First, that a contract made with an alien enemy in time of war, and that of such a nature that it endangers the security or is against the policy of this country, is void; such are policies of insurance to protect an enemy's trade. Another principle is, that however valid a contract originally may be, if the party become an alien enemy he cannot sue; the crown, during the war, may lay hands on the debt, and recover it; but if it do not, then, on the return of peace, the rights of the contracting alien are restored, and he may himself sue. No other principle is to be deduced.' In.Willison v. Patteson, 1 Moore, 133; s. c. 7 Taunt. 440; a bill of exchange drawn upon a British subject resident in England, and having funds of an enemy in his hands, by an alien enemy residing in the hostile territory, payable to his own order, and by him indorsed to a British subject also residing there, was held void, because a direct trading with the enemy. The recent case of Esposito v. Bowden, 7 El. & Bl. 763, was upon a charter-party for a voyage by a British subject to an enemy's port, which the plea alleged could not be performed without ' dealing and trading with the queen's enemies;' and the judgment of the Exchequer Chamber, as delivered by that excellent commercial lawyer, Mr. Justice Willes, was equally limited, and stated the general proposition upon which the judgment was based in this form: * 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 and correspondence with the inhabitants of the enemy's country, and that such intercourse, except with the license of the crown, is illegal.'