Chief Justice of the Supreme Court of New York, said: ' The doctrine once held in the English courts, that an alien's bond became forfeited by the war (Year-Book, 19 Edw. IV. pl. 6), would not now be endured. The plea is called in the books an odious plea, and the latter cases concur in the opinion that the ancient severities of war have been greatly and justly softened by modern usages, the result of commerce and civilization.' Clarke v. Morey, 10 Johns. 71, 72. The authority of the dictum as evidence of the law of nations at this day may be weighed by the ruling in the same court a few years earlier (also referred to by Chancellor Kent in Griswold v. Waddington), that 'all men may seize such goods as enemies of the king bring into the kingdom, and hold the goods to their own proper use.' 7 Edw. IV. 13, 14, pl. 5; Bro. Abr. Property, 38. It is hardly necessary to remark that, by our law, enemies' goods on land within our territory cannot be seized by private citizens to their own use, nor even by the government, without an act of Congress. Brown v. United States, 8 Cranch, 110; Alexander's Cotton, 2 Wallace, 404.
"In Ex parte Boussmaker, 13 Ves. 71, upon an application by an alien enemy to prove a debt in bankruptcy, Lord Erskine did say, * If this had been a debt arising from a contract with an alien enemy, it could not possibly stand; for the contract would be void.' But the nature of the debt does not appear by the report; and this dictum was wholly extra-judicial; for the contract was made before the war, and the debt was allowed to be proved, reserving the dividend.
"The continental writers, cited by Chancellor Kent, fall far short of supporting his assertion, that they ' unitedly prove that all private communication and commerce with an enemy in time of war are unlawful.' Judge Story, as we have already seen, in the case of The Julia, 1 Gall. 601, acknowledged that they usually confined the prohibition to commercial intercourse; and hardly any of them, even as quoted by Chancellor Kent, go beyond that. The strongest, according to his statement, would appear to be Grotius, Cleirac, and Valin. But Grotius, in the place relied on, by no means ' says expressly that private contracts with the enemy touching private actions and things are unlawful, and controlled by the duty which the citizen owes to his own State.' At the utmost, he leaves it an open question; for his words are: 'sed de ipsorum actionibus et rebus quaeri potest, quia videmus haec quoque concedi hostibus non posse sine aliquo damno partis; unde videri possunt talia pacta illicita cum civibus ob jus supereminens civitatis;' and again: 'Lex quidem posset adimere subditis aut perpetuis aut temporariis hanc potestatem; sed neque lex hoc semper facit, parcit enim civibus,' etc. De Jure Belli, Lib. 3, c. 23, art. 5. And the positions of Cleirac and Valin are apparently founded not upon the general law of nations, but upon particular ordinances of France. Cleirac, 197; 2 Valin, 31, 253.
"On the other hand, in the case of Coolidge v. Inglee, 13 Mass. 26, rights or to redress his wrongs.1 He may, therefore, take advantage of the insolvent laws of the State in which he is resident;2 and he is entitled to the same protection as citizens against frauds practised on him. Thus, where the plaintiffs were manufacturers in England of "Taylor's Persian Thread," which was an action on a promissory note given by one American citizen to another, in consideration of the sale to him of a British license, Mr. Justice Jackson, delivering the unanimous judgment of this court, after deliberate advisement, and speaking of the argument that all intercourse with an enemy is unlawful, said: ' This general proposition cannot be maintained, in the unlimited extent to which it has been carried in the argument for the defendant. Commercial intercourse between two nations at war is understood to be prohibited. This interdiction applies, in general, to any species of commerce by which the enemy may be benefited at the expense of our own country. But the books of the highest authority on the law of nations, and the usages of all civilized people in modern times, abundantly prove that intercourse is not universally prohibited, and that even contracts with an enemy are in some cases allowable.' And after carefully examining in detail the statements of the text writers, expressing the belief that ' the prohibition is confined, among all civilized nations in modern times, to such intercourse as is commercial,' and ' dismissing this idea of something mysteriously noxious and criminal in every kind of intercourse with an enemy,' he proceeds to the consideration of the question whether the contract sued on was lawful, and arrives at the result that it was. That decision was indeed overruled by the Supreme Court of the United States in Patton v. Nicholson, 3 Wheat. 204, on the ground that the use of such a license by a citizen was unlawful. But this only shows that the general principle was misapplied in Coolidge v. Inglee, not that it was unsound or inaccurately stated. The wrong application of- a principle does not weaken either the principle itself or the obligation of courts to adhere to it. Capen v. Barrows, 1 Gray, 380. That a citizen could not, consistently with a state of hostility and with his duty to his own country, take or use a license from the public officers of the enemy, does not affect the extent of the right of communication or contract between private citizens. Musson v. Fales, 16 Mass. 332, was a case of trading or commercial intercourse, which was held not to be so unlawful as to be no foundation for an action at law by a party who did not know that the party with whom he dealt was an enemy; and exhibits no intention to modify the statement of the general doctrine in Coolidge v. Inglee."
1 Taylor v. Carpenter, 2 Woodb. & Min. 15; Ex parte Barry, 2 Howard, 65; Barry v. Mercein, 5 Howard, 103; De la Vega v. Vianna, 1 B. & Ad. 284; Judiciary Act, § 11; Russel v. Skipwith, 6 Binn. 241; Clarke v. Morey, 10 Johns. 69.