§ 97. Indeed, generally, an alien friend may, when injured, bring any personal action which a citizen can; and although nection with the offence. Intercourse inconsistent with actual hostility is the offence against which the operation of the rule is directed.' 8 Cranch, 160-163. These expressions would seem to have been intentionally, as they are necessarily in judicial effect, limited to the case before the court, of actual passage of persons or transmission of property between the territories of the belligerents. In Scholefield v. Eichelberger, 7 Pet. 586, in which a contract made with an enemy during war for the purchase of goods was held void, the same learned judge, after asserting in the broadest terms, and outside of the question at issue, that ' the doctrine is not at this day to be questioned that, during a state of hostility, the citizens of the hostile States are incapable of contracting with each other,' took the precaution of adding, ' To say that the rule is without exception would be assuming too great a latitude.'
"The general statements of Mr. Justice Daniel in Jecker v. Montgomery, 18 How. 110, and Mr. Justice Clifford in Hanger v. Abbott, 6 Wallace, 532, that as a consequence of the state of war all communication and intercourse between the citizens of one belligerent and those of the other are unlawful, were manifestly but repetitions of earlier dicta, without having occasion to scrutinize them with care; for in the first case the vessel and cargo condemned as prize were knowingly sent by a citizen during war to an enemy's port; and in the second the only question was of the suspension of the running of the statute of limitations while the courts. were closed during war. The Ouachita Cotton, 6 Wallace, 521, was a case of a sale of merchandise, which was strictly an act of commercial intercourse.
"In the most recent judgment of the Supreme Court of the United States upon this subject, delivered since the argument of this case, the general doctrine is thus stated by Mr. Justice Davis: ' By a universally recognized principle of public law, commercial intercourse between States at war with each other is interdicted. It needs no special declaration on the part of the sovereign to accomplish this result, for it follows from the nature of war that trading between the belligerents should cease. If commercial intercourse were allowable, it would oftentimes be used as a color for intercourse of an entirely different character; and in such a case the mischievous consequences that would ensue can be readily foreseen. But the rigidity of this rule can be relaxed by the sovereign, and the laws of war so far suspended as to permit trade with the enemy. Each state settles for itself its own policy, and determines whether its true interests are better promoted by granting or withholding licenses to trade with the enemy.' United States v. Lane, 8 Wallace, 195. See also McKee v. United States, ib. 166.
"Chancellor Kent, in a most able and learned opinion delivered in the Court of Errors of New York, and again in his Commentaries, asserted with great positiveness, as a necessary consequence from the doctrine of the he is not admitted to the same political and municipal rights as a citizen, yet he is equally entitled with him to the protecillegality of all commercial intercourse and traffic, that all contracts made with the enemy during war were utterly void. Griswold v. Waddington, 16 Johns. 438; 1 Kent Comm. 67. But the case of Griswold v. Waddington, as the learned Chancellor candidly admitted at the outset of his opinion, was a case of commercial intercourse in the strictest sense, a dealing between commercial houses and with commercial paper; and nothing further was brought into judgment, except that a commercial partnership between the citizens of two countries was dissolved by the breaking out of war between them. His more general statements, therefore, in the opinion, like the repetition of them in his Commentaries, have not the weight of an adjudication.
"The only authorities, English or American, cited by Mr. Justice Story or Chancellor Kent, which afford any color for extending the doctrine beyond trading directly or indirectly with the enemy, or insurances upon or licenses for such trade, are one ancient order in the Black Book of the Admiralty, two cases in the Year Books, and a dictum in the Court of Chancery.
"The Black Book of the Admiralty contains a direction that ' inquisition be taken of all those who intercommunicate (entrecommunent), buy or sell with any of the enemies of our lord the king, without special license of the king or of his admiral.' It might well be doubted whether entrecommunent, in its connection with buying and selling, was intended to include any thing but trading or commercial intercourse. But it is sufficient to observe that, as that great legal antiquary, John Selden, tells us, ' The book itself is rather a monument of antiquity, yet not above about Henry VI., than of authority, and rather as a purpose of what was in some failing project, than ever in use and judgment held authentical. Most of it is against both the now received and former practice.' Selden's notes to Fortescue, ch. 32, 3 Selden's Works, 1898.
"Chancellor Kent observes, 'Brian, J., is made to say in 19 Edw. IV., Bro. Abr., tit. Denizen et Alien, pl. 20, that an obligation made to the enemy of the king is void.' But it appears, both in the original Year-Book of 19 Edw. IV. 6, pl. 4, and in Chief Justice Brooke's Abridgment, that the obligation sued on was made in the third year of the king; and the plea was that the plaintiff was born in the allegiance of the King of Denmark, who and all his subjects had been enemies since the eighth year of the king, in other words, not that the plaintiff was an enemy at the making of the obligation, but only at the time of bringing suit, that is to say, an ordinary plea of alien enemy, to the disability of the plaintiff, and not to the validity of the contract; the dictum of Chief Justice Brian was only that ' perhaps the obligation would be void against the party, but the king should have it;' and even of this Chief Justice Brooke added in the place cited, and also in pl. 16 of the same title, quaere; and Chancellor Kent himself, when tion of his person and property, and may bring suits in the courts of the United States and of the States, to vindicate his and the defendants, in America, imitated their names, trademarks, envelopes, and labels, and placed them on thread of a different manufacture, it was held that the plaintiffs could recover for the fraud, although they were aliens.1