H. C. or A. plaintiff, it cannot be said the matter was not bond fide open to. 1917. "nent. The Commonwealth, as the employer, is free to fr ane regulations in its own way, and as in this case the provision 'tay have been framed so as to exclude all possible doubt, and as Comox' ruling which enures for the benefit of the Commonwealth in ce Isaacs J. E sides to bear their own costs. Judgment for the defenda Fol Solicitors for the plaintiff, Loughrey & Douglas. Gane" Solicitor for the defendants, Gordon H. Castle, Crown Solicit for the Commonwealth. {HIGH COURT OF AUSTRALIA.) HIS MAJESTY THE KING - é . APPELL w AND SNOW bo, ely eeu alge 7 ON APPEAL FROM THE SUPREME. COURT OF Me Gor' A. SOUTH AUSTRALIA. 1917. : Trading with the Enemy—Meaning at common law—Commercial intercourse AvuLAros, munications upon business matters—Trading with the Hnemy Acts 191 p> | Mey 28-31: 9 and No. 17 of 1914), secs. 2, 3—Imperial Proclamations of 5th August and 9th September, 1914. Mexuournr, June 7. The term "trading with the enemy" at common law and as used a Trading with the Bnemy Acts 1914 includes all commercial intercourse ¥ Isaac: enemy. Gavan Dut Powers and a Rich JJ. The Panariellos, 84 LJ. P., 140; 85 L.J. P., 112, considered and follo 3 0.LRJ OF AUSTRALIA. was intended to conserve existing or promote future business relations with a person carrying on business in Germany might properly be convicted of the offence of trading with the enemy under sec. 3 of the Trading with the Enemy * Acts 1914. + Decision of the Supreme Court of South Australia reversed. Appr from the Supreme Court of South Australia. On the trial at the Criminal Sittings of the Supreme Court of South Australia, before Murray C.J., of Francis Hugh Snow on an information charging him with trading with the enemy, the p learned Chief Justice stated the following case under sec. 72 of the Judiciary Act 1903-1915 for the consideration of the Full Court of the Supreme Court :— At the Criminal Sittings of this Court beginning on 2nd November 1915 the defendant was charged and tried before me upon an infor- mation by the Attorney-General of the State of South Australia, the person appointed by His Excellency the Governor-General to _ prosecute by indictment for indictable offences against the laws of : the Commonwealth, alleging as follows :— First Count.—That Francis Hugh Snow late of Adelaide in the State of South Australia merchant during the continuance of the ' present state of war on 5th, 11th, 18th, 20th, 24th, 25th, 27th and 3st August 1914 and on 2nd, 8th, 10th, 24th, 25th, 26th and 29th September 1914 and on Ist, 7th, 8th, 12th and 29th October 1914 and on 2nd and 3rd November 1914 and on divers other days between. - Ddth August 1914 and 7th November 1914 at Adelaide in the said State did unlawfully trade with the enemy to wit Aron Hirsch & - Sohn then carrying on business at Halberstadt in Germany by ' entering by means of certain letters telegrams and cablegrams _ written sent and received to by and from the said Aron Hirsch & — Sohn, A. S. Winter of Rotterdam in Holland, Naylor Benzon & Co. _ Ltd. of London, England, and Messrs. George Smith & Son of London, England, into a commercial contract with relation to pyrites for the ~ benefit of the said Aron Hirsch & Sohn contrary to the Statute in "such case made and provided and against the Peace of our Sovereign _ Lord the King His Crown and Dignity. Second Count.—That he the said Francis Hugh Snow during the Held, therefore, that a person who took part in correspondence which H. C. or A. 1917. Nn Tue Kine v. Svow. H. C. or A. 1917. 'Tue Kine Snow. HIGH COURT continuance of the present state of war on 5th, 6th, 7th, llth, 13th, 14th, 15th, 17th, 18th, 19th, 20th, 21st, 22nd, 26th, 27th, 29th and 31st August 1914, and on Ist, 2nd, 3rd, 4 5th, 7th, Sth, 9tb, 10th, 11th, 14th, 15th, 17th, 18th, 19th, | 23rd, 24th, 25th, 2th, 2th, 29th and 30th September 1914 and on Ist, 2nd, 3rd, 5th, 6th, 7th, 8th, 10th, 12th, 13th, 15th, 16th, 1 19th, 20th, 21st, 22nd, 23rd, 26th, 27th, 28th, 29th and 30th Oct 1914 and on 2nd, 3rd, 4th, 5th and 6th November 1914 and | divers other days between 5th August 1914 and 8th No 1914 at Adelaide aforesaid did unlawfully trade with the en to wit the said Aron Hirsch & Sohn then carrying on business a Halberstadt in Germany by taking part in acts or transa which at common law constitute trading with the enemy nan having commercial intercourse with the enemy the said Aron | & Sohn by means of certain letters telegrams and cable written sent and received to by and from the said Aron Hirsch & Sohn, A. 8. Winter of Rotterdam in Holland, George Smith & of London, England, L. Vogelstein & Company of New York in United States of America, E. G. Hothorn of Rotterdam in Holl and Naylor Benzon & Co. Ltd. of London, England, contrary to Statute in such case made and provided and against the Peac Our Sovereign Lord the King His Crown and Dignity. There was evidence for the prosecution that prior and up the commencement of the present war the defendant was an in South Australia for Messrs. Aron Hirsch & Sohn of Halber in Germany in respect of that firm's dealing in metals and mii and that on or about days mentioned in the said second count defendant sent letters on business matters in which the defe and Aron Hirsch & Sohn were interested at the time the War b out, and subsequently during the War addressed to one or oth the persons named in the said count, except Hothorn, and also cal grams of a like nature to one or other of the said persons, Naylor Benzon & Co. Ltd. and Aron Hirsch & Sohn, and re letters of a like nature from one or other of the said persons or fi except Hothorn, and cablegrams of a like nature from one or 0 of the persons, except Naylor Benzon & Co. Ltd. and Aron Hii s Sohn. é OF AUSTRALIA. pectively or otherwise than to Messrs. George Smith & Son in n, England. There was evidence that Vogelstein & Co., ter and Hothorn were or acted as agents for or channels of yunicition with Aron Hirsch & Sohn after the commencement War, but there was no evidence that either Messrs, George h agents or channels of communication at any time after the mencement of the War. from Messrs. Aron Hirsch & Sohn. Commonwealth Government Gazettes of 7th August 1914, September 1914 and 12th October 1914 were put in evidence ; y of each accompanies the case. specting the second count in the information it was contended half of the defendant (inter alia) as follows :— 'That sec. 3 of the Trading with the Enemy Act 1914 is not n the powers of the Commonwealth Parliament. 'That the said section if and so far as it purports to be retrospec- or retroactive is not within the powers of the said Parliament. 'That upon the true construction of the said Act the Act is retrospective or retroactive. That the second count did not disclose or allege any act or ction or offence within the meaning of the said Act. That there was no evidence to go to the jury of any act or ction within the meaning of the said Act. That the intercourse by correspondence appearing upon the e wes not an act or transaction which at common law con- trading with the enemy. 'That there was no evidence of any intercourse or attempt at e with Aron Hirsch & Sohn by means of letters, telegrams n or Naylor Benzon & Oo. Ltd., and that without this the nt could not be convicted of the offence alleged. held and directed the jury as follows :— e was no evidence that the defendant replied to any of the — was no evidence that the letters appearing to be addressed H. ©. oF A. 1917. —_~ Tar Kine v. Snow. H. C. or A. 1917. Tue Kine v Snow. HIGH COURT 1, 2 and 3. That sec. 3 of the said Act is within the powers of Commonwealth Parliament and is retrospective and retroacti 4, That the second count did in the allegation of having comm: intercourse with the enemy by means of certain letters, tel and cablegrams, written, sent and received to, by and from the fir and persons named, disclose and allege an act or transaction offence within the meaning of the said Act. 5 and 6. That " under the first Proclamation, which was publ in Australia on 7th August, intercourse was not merely not prohil but it was expressly permitted; that Proclamation remained force until 12th September: so you must not find the defen guilty of having commercial intercourse with the enemy bi H 7th August and 12th September. You may look at those letters gentlemen, just as you may look at telegrams, cablegrams ant letters written before 5th August (when the War broke out), to j whether the persons named in the second count were the agents Aron Hirsch & Sohn who could be used as channels of communi tion. You must judge whether the communications sent bet 5th August and 7th August were of a commercial nature, and wheth the communications between 12th September and 8th Novyemb were of a commercial nature. The only communications you find unlawful are those between 5th August and 7th August a1 those between 12th September and 8th November." And that trading with the enemy means "having comme intercourse with the enemy in or carrying on business in an ent country, and this may consist of either sending or receiving goods specie to or from an enemy country or sending letters, teleg and cablegrams of 2 commercial nature to an enemy country eith independently or in reply to letters, telegrams and cablegrat received from an enemy country. . . . You will have to satisfied that the intercourse charged under the second count is 0 commercial nature. You may find that, if any of the communie tions sent were on business matters in which the defendant Aron Hirsch & Sohn were interested either at the time the War bro out, or subsequently during the War. You will have the lett before you to judge." tJ 7. That for conviction under the count it was not necessary OF AUSTRALIA. mmunication with Aron Hirsch & Sohn in Germany, but it be enough if the jury were satisfied that any of them were and defendant made use of those in order to communicate on ercial matters with Aron Hirsch & Sohn. jury found defendant not guilty on the first count and guilty the second count, and pursuant to the Judiciary Act I reserved the consideration of the Full Court the question whether my said should be set aside and a verdict of not guilty entered. from that decision the Crown now, by special leave, appealed to 'High Court. s trading with the enemy at common law is substantially ct. Trading with the enemy means all intercourse which is stent with actual hostility (The Rapid (1) ), and it is not neces- y that there should be any contemplated transit of goods to an y country. on A.C.J. referred to Robson v. Premier Oil and Pipe Line J. referred to Coppell v. Hall (3).| e and commerce consists of acts (New South Wales v. The onwealth (4) ), and trading with the enemy is the act of human se independent of goods or whether goods are the subject tter of the intercourse. The term " trading with the enemy " is nous with "commercial intercourse with the enemy," and (5) 84 LJ. P., 140; 85 LJ. P., 112. (6) 8 Cranch, 181, at pp. 193-194. (7) (1916) 1 K.B., 541, at p. 556. 1917. Tue Krxe Tae Kina v Swow. HIGH COURT Co. (Great Britain) Ltd. (1); Esposito v. Bowden (2); 9 Pieter (3); Moss v. Donohoe (4); The Kildonan Castle—which y decided on 10th July 1916, in the Admiralty Division (in Pri: Sir Samuel Evans P.; Kent's Commentaries, 9th ed., vol. 1., p. i Wheaton's International Law, p. 434. [Isaacs J. referred to British and Foreign Marine Ineuraee m Ltd. v. Samuel Sanday & Co. (5); Chalmers' Opinions, p. The Abby (6).] Tt is unnecessary to decide whether at common law inte which falls short of commercial intercourse constitutes t1 with the enemy. Although, if the policy of the law is to proh unregulated intercourse altogether by reason of its danger, the no reason for limiting the definition of commercial intercours Commercial intercourse constitutes the offence whether or n falls short of technical or individual trading or technical or indiv commerce. Commercial intercourse includes intercourse by m of the transmission of commercial correspondence, and com pondence is commercial if its subject matter is or may be the subje of business, trade or commerce. Trading with the enemy is. phrase used to describe that species of intercourse with the e which is prohibited at common law. That being so, the dire was right. | Sir Josiah Symon K.C. and Piper K.C. (with them No for the respondent. Trading with the enemy at common la\ only one form of commercial intercourse with the enemy. is no case in which the two terms have been used synonym or have been said to be synonymous. In order to constitute trad with the enemy, there must be a transmission of goods. The tion to the jury was based on the case of The Rapid (7), but case decided that, although negotiation or contract was not €ss to constitute trading with the enemy, the transmission of good was essential. Murray C.J. recognized that there might be mercial intercourse which was not trading with the enemy, b (1) (1916) 2 A.C., 307, at p. 344. (5) (1916) 1 A.C., 650, at p. 671 (2) 7 EL.& BL, 763, at p. 79. (6) 5 Rob. Adm., 251, at pp. 253-28 (3) 4 Rob. Adm., 79, at p. 83. (7) 8 Cranch, 155. (4) 20 C.LR., 615, at p. 618. OF AUSTRALIA. correspondence about business matters, it should have been Jinthe information. That the transmission of goods is essential ) and Esposito v. Bowden (4) ete was a sttlarte of goods. Barton A.C.J. referred to United States v. Lane (5). saacs J. referred to Janson v. Driefontein Consolidated Mines (6); Halsey v, Lowenfeld (7).| ¢ Proclamations of 5th August and 9th September 1914 draw ions with the enemy. The definition of trading with the enemy 2 (2) of the Trading with the Enemy Act 1914 makes an "act transaction " necessary to constitute the offence. The act or nsaction referred to is something which is forbidden to be done, not the mere writing about commercial topics. The jury may decided upon a letter which negatived any trading. [Counsel referred to The Hoop (8); The Jonge Pieter (9); Gist v. Mason )) ; Potts v. Bell (11); Reid v. Hoskins (12) ; Bateyand Morgan on r, its Conduct and Legal Results, pp. xii., xiii, 204; Tudor's ding Cases on Mercantile Law, 2nd ed., p. 802.] Assuming that 1e terms trading with the enemy and commercial intercourse with he enemy are synonymous, there must be somé act done which has effect of changing the legal relations of the parties (Robson v. Oil and Pipe Line Co. Ltd. (13)). There is a variance between werments in the information and the evidence with regard to ons with whom the correspondence was carried on. As the mation has not been amended in that respect, the respondent uld have been acquitted (Russell on Crimes, 4th ed., vol. m1., Wright's Case (14); R. v. Hewins (15); Gray v. Palmers R. v. Owen (17) ). 7 EL & Bi, 763, at p. 779. Wall., 185, at'p, fing 'A.C, 484, at pp. 493, 509. 707. 1916) 2K Rol A 1D. (17) 1 Meod., Lis. trading with the enemy. If there had been anything more H. ©. or A. 1917, ~ Tue Kine v Sow. H.C. or A. 1917. a, Tur Kine ss Snow. June 7. HIGH COURT Barton A.C.J. We are all agreed that neither transpo goods nor contract is essential to the commission of the o of trading with the enemy at common law, and that communica for the purpose of conserving existing, or promoting future, bu: relations constitute that offence. This statement is not ma an exhaustive one, but it is sufficient for the present purpose. those circumstances we desire to know whether either party di the inclusion in the special case of the communications admit evidence at the trial, or any part of them. Cleland K.C. The appellant desires the inclusion of the some portion of them. Sir Josiah Symon K.C. Tf any of the communications a . cluded, all of them should be. Cur, adv, v The following judgments were read :— Barron A.C.J. In this case the Supreme Court of South tralia has pronounced the direction to the jury of the learned Justice of the State to be erroneous, and on that ground has qua the conviction of the respondent. It has also refused to remit | case reserved to the learned Chief Justice for amendment or 1 statement by the inclusion, in the case, of copies of certain le telegrams and cablegrams put in evidence on the trial. The main grounds of the appeal to this Court are that the were correctly directed at the trial, and that at any rate the Sup Court ought not to have come to the conclusion that they in evidence were commercial, in the sense that they were for maintenance or furtherance of business relations between the spondent and the alien enemy firm of Aron Hirsch & Sohn. Before entering upon an examination of his Honor's directi OF AUSTRALIA. n after the outbreak of the present war. The third section is etive in relation to the commission of the offence, and con- Kidman (1) ). The second section of the Act provides in sub-sec. "a person shall be deemed to trade with the enemy if:he ms ortakes part in . . . (c) any act or transaction which many, by entering by means of letters, telegrams and cablegrams to a commercial contract with relation to pyrites for the benefit fthe enemy. That charge was founded on the terms of the King's roclamation of 9th September 1914: so the case reserved informs The second count, under whichsthe respondent was convicted, that on numerous specified dates ae the pee state esaid Aron Hirsch & Sohn then carrying on business at 'Halber: dt in Germany by taking part in acts or transactions which at s of certain letters telegrams and cablegrams," &c. e terms of the several Proclamations are material only as to case reserved sets out the direction very fully. His Honor communications of "commercial intercourse, ommercial nature," and "communications on business matters ," intimating that if they were, they con- evidence of the offence charged in the second count. I that the essence of the direction is to be found in the following -— You will have to be satisfied that the intercourse charged 'the second count is of a commercial nature. You may find (1) 20 C.LLR., 425. H. C. or A. 1917. Barton A.C.J. H.C. or A. 1917. Se Tue Kino v, Syow. Berton A.C.5. HIGH COURT that, if any of the communications sent were on business in which the defendant and Aron Hirsch & Sohn were int either at the time the War broke out, or subsequently duri War. You will have the letters before you to judge." It intimated to the jury, in effect, that the intercourse would cons the offence of trading with the enemy if it were commercial in #] sense of being on business in which the respondent and Aron H & Sohn were interested. But it seems to me probable that his Hon in using the terms in question was really designating the class itself to the jury on inspection. A more precise explanation of the kind of commercial inter that would be evidence of the offence was not given to the j On the argument of the case reserved the learned Chief Ju concurred with his brother Justices in holding that his direetio the jury was too wide. He held that the "act or transaction contemplated by sec. 2 (2) (c) of the Trading with the Enemy Act is not committed unless it amounts to the entry into a commerei or financial " transaction " or unless property is shipped for trai ation from one enemy country to the other. His Honor here us the term "commercial or financial transaction " as equivalent t a commercial or financial contract, if I am not mistaken ; at common law, a view which would be inconsistent with the t of the several judgments below and with the order quashing conviction. I should like to make and discuss longer @ from the able judgments which were delivered, but I must bey mange my own judgment unduly lone course a any kind between subjects of the belligerents is if it be inconsistent with the existing hostility of their States. expressly licensed the intercourse. But bare intercourse, OF AUSTRALIA. ot commercial in its nature, is not pronounced to amount to " trad- with the enemy," although it is unlawful if not licensed. Actual d exchange, sale or transportation of goods with or to an ry subject, on the other hand, of course amounts to " trading h the enemy," and is not only porbadstany pnt i a misdemeanour h is conducted for the purpose of keeping up or facilitating ial transactions between parties whose countries are at war, intercourse merely forbidden, or is it included by the common law in the term " trading with the enemy " ? That is the point to be ined, and I have come to the conclusion that such intercourse stitutes the offence named. What is the basic principle on which it is forbidden to hold inter- with the enemy, whether (1) in terms or by channels uncon- cted with commerce, or (2) by way of commercial correspondence, ith any such objects? The whole prohibition rests on the theory any communication of either character, not licensed by the d of the State, may be advantageous to the enemy country, or trimental to one's own country. But as war is directed to the ction of the materiai resources of the enemy as well as to the ection of our own—the pursuit of the former object often being s of attaining the latter—it follows that the more nearly the se is connected with the commerce of the enemy the greater danger of benefit to him or of injury to ourselves. Thus, though e non-commercial intercourse is unlawful, it is not looked on with ely to lead to such sale or purchase, it should be classed with the sale or purchase rather than with the bare intercourse : for in reason that it may at any moment result in that, the most way. Hence the more natural conclusion is rather that H, C. of A. 1917. Tur Kixe Snow. Barton A.C.J, H. C. or A. 1917. ad Tur Kine v. Syvow. Barton A.C.J. HIGH COURT is not only illegal but punishable, than that it is allied to hare commercial intercourse, merely unlawful. generally common sense, would view the matter @ priori. Li then see whether it is the way in which legal authority regards Recent decisions of the Courts in England have been arrived : after such full investigation and review of prior authorities new old, and are themselves of such high authority, that I conceive th the purpose of this inquiry will be best served by confining attention to some of the more recent cases. But it is well to obs at the outset that the majority of the cases, and nearly all the ol ones, are cases in Prize. As they by their nature arise from naval right of search of cargo and its seizure and condemnation due cause, they relate to the transportation of goods and not mere correspondence on .the subject. But it will be found expressions in modern reviews of these cases carry the doctri much further than is required to justify the seizure of cargo. "The oldest case from which I shall read a passage was not, however, a Prize case. Esposito v. Bowden is a decision of th Court of Exchequer Chamber (1). The gist of it is that perforn ance of a contract cannot be insisted on where between i making and the time for its performance a state of war has ar which would involve the party sued in a trading and dealing with the enemy if he carried out his promise. In such cases the contract dissolved by law. Ina very learned judgment delivered for the Co Willes J. said (2): "It is now fully established that, the pr as to capture his property, a declaration of war imports a prohibition of commercial intercourse and correspondence with the inhabitant of the enemy's country, and that such intercourse, except with the licence of the Crown, is illegal." Although the contract in case involved only that the plaintiff's ship chartered by the defend should proceed to Odessa and there load 2 complete cargo of specifi goods and proceed therewith to a port of discharge, the ports loading and of intended discharge being respectively in countries which after the contract came to war, yet the decision of the Court (1) 7 El. & BL, 763. (2) 7 EL & BL, at p. 779. OF AUSTRALIA. C.B., Alderson B., and Cresswell and Crowder JJ. That yposition is much wider than was essential to sustain the con- e before, but remaining unexecuted at, the time it is declared, d of which war makes the further execution unlawful or impossible, to dissolve the contract and to absolve both parties from further ce of it. The proposition was stated in 1868 in terms as oad in the case of the United States v. Lane (1). : Next in the order of time I take the case of The Panariellos (2), decided on 22nd March 1915. There Sir Samuel Evans P. eviewed the authorities very closely and at great length. He cited The Hoop (3); Story's Notes on Prize Courts; Wheaton's ernational Law, 8th ed., pars. 309-315; The Cosmopolite (4); te Rapid (5); The Julia (6); The Jonge Pieter (7), and other horities. He lays down four general propositions (8), only two whieh need he given here :—" First, when war breaks out between tes, all commercial intercourse between citizens of the belligerents facto becomes illegal, except in so far as it may be expressly d or licensed by the head of the State. Where the intercourse commercial nature it is usually denominated 'trading with the 'This proposition is true also, | think, in all essentials with d to intercourse which cannot fitly be described as commercial." ously the last sentence refers to the illegality of certain inter- , and not to the name " trading with the enemy " applied to ercial intercourse.) "Fourthly, when such intercourse in takes place, the property of the persons engaged in it is con- e, whether they were acting honestly and with bona fides or (The last proposition of course applies to the cases where, e claimant seeks the restitution of goods which were actually ransit, and does not diminish the generality of the first proposi- 8 Wall., 185, at p. 195. (5) 8 Cranch, 155. Lid. Pa, 140. (6) 8 Cranch, 181. 196, (7) 4 Rob. Adm., 79. Rob. Adm., 8. (8) 84 LJ. P., at p, 142. 1917. Barton 4.0.5. H.C. or A 1917. Barton A.C.J, » cours HIGH COURT Their Honors of the Supreme Court seem to me, with all deference to have taken @ more restricted view of the term " commercial i * than the learned President's words imply. In my beli 'e intended to mean what they say, and to lay downa b they w proposition, similar to that in Esposito v. Bowden, within wl the case then in question fell as (I use again his Lordship's word a commercial intercourse between the claimants and the enem which amounted to a " trading with the enemy." I think the te "commercial intercourse " must have included in such " trade " any intercourse on commercial matters ; at any rate for the maintenan e or furtherance of business relations between belligerent subjects. Otherwise such intercourse would be omitted from his Lordship' classification, which is hardly likely. I think he can scarcely hav intended to leave out so highly important a class of prohibited int course. His Lordship was dealing with a case in which there was no trading with the enemy in the sense of actual exchange or actual sale of cargo, for the property admittedly remained in the orig owners. This appears both from the head-note and from the ful statement of the case. On 6th May in the same year the Court of Appeal decided the case of Robson v. Premier Oil and Pipe Line Co. Ltd. (1). There it was decided that an alien enemy was not entitled to exerci by proxy or otherwise a right of voting in respect of shares in an English company, though the alien was a company which had a branch in England as well as a head office in Berlin. Sargant J. having decided against the alleged right of the alien enemy, a appeal was taken on two grounds : (1) that the prohibition at common law of intercourse with an alien enemy is limited to commercial intercourse or trading, and (2) that the transaction in this case did not come within the definition of commercial intercourse. The Court of Appeal negatived both of these contentions. The judgment was delivered by Pickford L.J. on behalf of Lord Cozens-Hardy M.R.., Warrington LJ, and himself. The Court emphasized the unlawfuln of all intercourse during war as laid down by Lord Stowell in Hoop (2) and The Cosmopolite (3) ; by English Courts in several othe (1) (1915) 2 Ch., 124. (2) 1 Rob. Adm., 196. (3) 4 Rob. Adm., 8. OF AUSTRALIA. and Kent; and again affirmed by Sir Samuel Evans in The Panariellos (1). The Court of Appeal not only held that the transac- ion then in question came within the prohibition of intercourse with ies, holding it enough for their existing purpose to say that in opinion all intercourse which could tend to the detriment of one's n country or the advantage of the enemy country was forbidden inconsistent with the state of war. It went further, and it is n this respect that the decision is more peculiarly in point in the mt case. The Court said (2) :—" We think also that the rejection these votes may be justified on the narrower ground that this is acommercial transaction. Commercial intercourse is not confined making contracts between an alien enemy and a British subject, and ich a transaction as this directed to obtaining the control of a ding company is in our opinion commercial." This passage may ll be compared with that on p. 195 of the United States v. Lane (3), dy mentioned. It contains no qualification of the view ex- by Sir Samuel Evans that ' where the intercourse is of a com- nature it is usually denominated ' trading with the enemy.' " Less than seven weeks elapsed between the two decisions. On 27th January 1916 came the judgment in the case of British Foreign Marine Insurance Co. Ltd. vy. Samuel Sanday and — Co. (4), in which, after saying that "' the declaration of war amounts 9 an order to every subject of the Crown to conduct himself in uch a way as he is bound to conduct himself in a state of w," Lord Wrenbury said (5) :—* It is an order to every militant bject to fight as he shall be directed, and an order to every civilian subject to cease to trade with the enemy. There is 'a al rule in the maritime jurisprudence of this country by which subjects trading with the public enemy, unless with the permission Sovereign, is interdicted': The Hoop (6). 'A declaration of war imports a prohibition of commercial intercourse and corre- jondence with the inhabitants of the enemy's country, and that (1) 84 LJ. P., 140. (4) (1916) 1 at p. 136, (5) (1916) )$ Wall. 185. (6) 1 Rob. ; in America by decided cases and by great authorities such as H. ©. or A. 1917. Tur Kine Svow. Barton ACJ. H. C. or A. 'Tue King Snow. Barton A.CJ. oon HIGH COURT [ Esposito v. Bowden (1). . . . Immediately the royal prerogati exercised and war is declared against another nation every subje His Majesty is bound to regard every subject of that nation as enemy, and the consequences ensue which I haye mentioned." again is an absence of any qualification of the breadth of the p position laid down in previous cases, some of them so recent, commercial intercourse with an enemy after the declaration of amounts to trading with the enemy. A few weeks after the last cited case, namely on 13th April 1916, came the judgment of the Privy Council in The Panariello on appeal from the learned President. That case is reported i 85 LJ. -P., 112. The Judicial Committee, whose judgment delivered by Lord Sumner, fully confirmed the decision appeal from and also its grounds. It was laid down (2) that " the gen principles upon which trading with the enemy is forbidden to subjects, or those who stand in the place of subjects, of His Majesty and of his allies, are well settled and need not be restated. Amp citations from the authorities are to be found in the learned an elaborate judgment in the Court below." Goods had been des- patched from a foreign port after the outbreak of war, and with knowledge of it, by a British subject or 9 subject of an allied Stat for delivery as directed by an enemy firm and for their benefit; and the judgment proceeded thus :—'' The despatch of the ore from. Ergasteria, for delivery as directed by Beer, Sondheimer & Co., of Frankfort, and for their benefit, engaged the goods in for- bidden intercourse with the enemy. Consignment of goods to enemy port and vesting of them in an enemy while on passag though common features in the reported cases, are not essential to in the enemy country his agent in the United Kingdom. The development of communica tions, the increased complexity of commercial intercourse, and thi multiplication of facilities for enemy dealings with goods, though at a distance from the enemy country, are incidents in the growth — of modern commerce to which in its application the rule of law mus (1) 7 EL & BL, at p. 779. (2) 85 LJ. P., at p. 116. Vg -L.R.J OF AUSTRALIA. 273 adapted. They do not in themselves operate to defeat the H.C. or A. ication of an established principle." I am clearly of opinion bee the rule of law is adaptable, and indeed that it already extends, Tur Kixc correspondence instituted or continued for the protection or — gyow. cement of commercial relations between a British and an enemy subject. Only three months after the Privy Council's decision Sir Samuel pronounced judgment in the case of The Kildonan Castle. Barton ACJ, case is not in any report yet received here, but I quote from transcript of the notes of the official shorthand writer. It was case in which the original shipper of goods was given an oppor- ity of showing what, if anything, he had done to prevent the goods from reaching the enemy or to put an end to a commercial n se which his Lordship thought was taking place between him and the intended receiver of the goods. The goods were destined for Germany, but the property in them had not passed. expressions of the learned President are in unison generally with e of which he made use in The Panariellos (1), and also in what sense that high authority understood the judgment t previously delivered on the appeal; and I quote merely for t purpose. He said: " If it be true that the goods were engaged 1a commercial and forbidden intercourse, and if it be true also he did nothing to bring that intercourse to an end, I think e was a trading with the enemy which is amply sufficient to these goods confiscable" : and, with relation to the facts ch he had recited, he went on to say: "On these grounds I 1 clearly of opinion that the proper order for me to make is that goods be condemned as goods which were engaged after the eak of hostilities in a commercial intercourse with the enemy." faving regard to his pronouncement in The Panariellos (1) that all sed intercourse between citizens of the belligerents is illegal when not fitly to be described as commercial, in collocation the additional pronouncement in that case, evidently made with Bubsoquent approval of the Judicial Committee, that where the se is of a commercial nature it is usually denominated jing with the enemy," it is clear that his Lordship intended (1) 84 LJ. P., 140. n H. C. or A, 1917. e~ Tue Kixe v, Sow. Barton A.0.3, HIGH COURT his proposition to cover commercial intercourse at any stag which, if not commercial, it would still have been forbidden, is, at any stage short of the actual transit of goods as well and after that stage. Endorsed by the Judicial Committee an full consistence with his remarks in The Kildonan Castle, it can onl be concluded that the propositiop covers the commercial intercourse even where that intercourse has not ripened into its natural probable fruits. 4 Reverting, then, to my classification early in this judgment, of the two forbidden extremes of mere intercourse on the one hand the exchange, sale or transportation of goods on the other and of the extensive field of commercial intercourse which between them, I come to the conclusion that the commercial inter- course, tending as it must tend towards trade, must be placed in the same category with the sale or purchase or transport of go to or from an enemy country, and is properly classed ther by the common law as " trading with the enemy." " The presun object of war being," in the words of the Exchequer Chamber ( ) even before the point of the sale, &c., of goods or of a bargain to traffic in them. Surely, it would tend to disaster if the law w otherwise. Surely, when transactions of that nature are defeat before they can fructify in actual contract or even sale or purcha they do not at that point fall into the same category as mere ni commercial correspondence. In my view the "trading with enemy " begins when the intercourse begins to further the forbid commerce, 3 I cannot help thinking that if their Honors of the Supreme Co whose judgment was anterior to that of the Judicial Committee The Panuriellos appeal (2), had had the advantage of considering wh that tribunal said by the mouth of Lord Sumner, as well as President's still later judgment in The Kildonan Castle, they would probably have come to a different conclusion. It is of interest to glance at two of the Proclamations of the King relating to this subject. The first is that of 5th August 191 (1) 7 EL & BL, at p. 779. (2) 86 LJ. P., 112° = OF AUSTRALIA. the supply and transmission of goods, the movements of ships, making of contracts of insurance, the entry into new com- , financial or other contracts or obligations, and cognate ects, and warns all persons against committing aiding or abetting of the acts forbidden under these heads. This Proclamation lares the state of war, and recites that it is " contrary to law any person resident, carrying on business, or being in Our ions to trade or have any commercial intercourse with any resident, carrying on business, or being in the German without Our permission." This Proclamation is headed -—" By the King. A Proclamation setting forth the Law and cy with regard to Trading with the Enemy." The next Proclama- 12th of that month. It makes a similar recital and also recites evious Proclamation " relating to trading with the enemy," it applies its provisions to Austria-Hungary, restating and them. It does that by repealing the previous Proclama- tion and making fresh provision. Now, this Proclamation is headed wus :—" By the King. A Proclamation relating to Trading with 'Enemy. Both these Proclamations, therefore, place under the head of "trading with the enemy " the prohibition to trade e any commercial or financial transactions with enemy resi- on 23rd October in the same year. They are of assistance, sistance be necessary, in arriving at the sense in which the ment of the Commonwealth, following that of the United sdom, has used the same phrase. the case does not end at this point. I have said that the 1917. Tue Kine v Syow. Barton A.C.J. 276 HIGH COURT Ul H. C. or A. exhibits, or any of them, were such as to evidence that intenti TO they were within the term his Honor used. 1t may be that th es ' 'Tur Kia letters, telegrams, &c., themselves, when inspected by the jun snow, amply showed that they were of this nature, and themselves eh dated the sense in which his Honor used the words " commerce Barton A.C intercourse" and similar terms. If the writings warrant interpretation, I think the direction may be taken in conne with them. Still, that may not be so, and it is a question wl can only be cleared up completely by an examination of the writing themselves. It is not, as it stands, a case for a new trial, becaus they or some of them may show that if taken together with direction they are conclusive as to the sense in which the term used. Indeed, there is much to be said for the proposition the term '' commercial intercourse,' when conducted by co , spondence, would be understood in common acceptation as i course which tends to, or facilitates, or promotes comme is said to bear a technical sense, has any meaning which differs that common or colloquial sense. It is quite probable that the as used by his Honor was understood by the jury, in considerin the correspondence, as conveying just this sense, and if so, it be regarded as sufficient to safeguard the jury against any conde tion grounded upon intercourse without that tendency. Still, cannot be sure of all this. We cannot be quite certain, until we the writings, that, when his Honor told the jury that they mi find that a commercial intercourse such as was charged under second count had been proved if any of the letters, &c., were on business matters in which the respondent and Hirsch & Sohn were interested when the present war broke out or subsequently, they might not have applied that expression to perfectly innocuous letters, even discouraging further communication, as Gordon pointed out. I prefer to say nothing at present as to the probability of this. But we find that communications which might have mad the use of such words as " commercial intercourse" clear beyond misapprehension are not before us, and without them we cannot OF AUSTRALIA. whether the direction was given in a sense which showed that lute clearness, probable though it be. It is therefore open to e question whether the case reserved is stated with absolute _ Now the appellant's counsel have continued to urge that ground f appeal, and the respondent's counsel intimate that while it is necessary in their view that the communications should have appended to the case, still, if the Court thinks that their inclu- ould if so appended tend to elucidate the matter, we propose to ake an order to meet the circumstances. By this means the case ved will come before the Supreme Court in a form in which direction will be freed from any possible uncertainty. Various points were taken categorically by the respondent ; e are seven. The first three were not argued, as it was recog- that they were covered by the case of R. v. Kidman (1). The urth, fifth and sixth will be finally decided upon the amended ial case. The seventh ground is obviously untenable, and I not think any atithority is necessary for that opinion. However, merely mention R. v. Hill (2). sAacs J. Although the answer to the main question presenting for our consideration may be stated in small compass, it is , both for the detachment of that precise question from t of the case and for the purpose of stating some other points, h, though subsidiary, are nevertheless essential, that the position respondent Snow was charged on two counts, for contra- on of the Commonwealth Act relating to trading with the enemy. s acquitted on the first, and convicted on the second. The nt appeal relates only to the second, as to which sec. 72 of the ry Act empowers the Court to " reserve any question of law ich arises on the trial for the consideration of a Full Court." powers of the Full Court are stated in sec. 73. The second t charged the defendant with the statutory offence of " trading 1) 20 C.LR., 425. (2) Russ. & R., 190. XX 19 H. C. or A. 1917.Tue Kine Barton A.C.J- H. C. or A. 1917. ~ Tue Kina vw Snow. Isaacs J. HIGH COURT with the enemy to wit . . . Aron Hirsch & Sohn" of ' berstadt in Germany by taking part in acts or transactions at common law constitute trading with the enemy namely h commercial intercourse with the enemy the said Aron Hir: Sohn by means of certain letters telegrams and cablegrams wri sent and received to by and from the said Aron Hirsch & Soh and various other persons mentioned. That, if proved, would an offence, as enacted by sec. 3 of the Act. The case sta the learned Chief Justice of South Australia, before whom th took place, is all the Full Court could, or this Court can, look to determine the questions reserved. ' That case states what the evidence for the prosecution upon which the jury convicted the respondent. It showed " prior and up to the commencement of the present war the defer was an agent in South Australia for Messrs. Aron Hirsch & of Halberstadt in Germany in respect of that firm's deal metals and minerals, and that on or about days mentioned i said second count the defendant sent letters on business matte in which defendant and Aron Hirsch & Sohn were interested at t time the War broke out, and subsequently during the ¥ addressed to and received from one or other of the other mentioned, with certain exceptions, communications of a like natu On the trial an objection was taken that the intercourse b correspondence appearing in evidence was not an act or tran: which at common law constitutes trading with the enemy. An objection was taken that inasmuch as with regard to two of t five persons mentioned in the second count, as intermediari evidence did not show they had acted as such intermediaries the commencement of the War, the whole charge failed. The learned Chief Justice in his directions to the jury dealt these two objections as follows :—As to the first, he gave a g definition of " trading with the enemy" at common law, a also gave a specific direction on this subject as to the communic in evidence. His words were :—-" Trading with the enemy m having commercial intercourse with the enemy in or carryi OF AUSTRALIA. country either independently or in reply to letters, telegrams blegrams received from an enemy country. . . . You have to be satisfied that the intercourse charged under the nd count is of a commercial nature. You may find that, if any e communications sent were on business matters in which the fendant and Aron Hirsch & Sohn were interested, either at the me the War broke out, or subsequently during the War. You vill have the letters before you to judge." As to the second ion, he said:— That for conviction under the count it ry that all the persons and firms named should be to be channels of communication with Aron Hirsch & Sohn many, but it would be enough if the jury were satis- that any of them were and that the defendant made use of in order to communicate on commercial matters with Aron +h & Sohn." e Full Court dealt with the first objection only, finding it ary in the view their Honors held to deal with the second. trading with the enemy " is synonymous with " commercial se with the enemy." The Supreme Court held in the nega- nsidering that the latter term was wider than the former. iew taken was that whereas "commercial intercourse " s all forms of commercial negotiation, "trading with the " is restricted to some act or transaction of a final nature, either the actual transportation of goods, or the conclusion inding contract or transaction resulting from the prior on learned Chief Justice stated the question reserved as he stood it, in these words: " The essential question is whether e corre dence with an enemy on business matters in which , telegrams and cablegrams of a commercial nature to an H. ©. oF A. 1917. ew Tue Kine v Snow. Isaacs J. H.C. or A. 1917. a Tue Kine v Snow. Isaacs J. HIGH COURT both sender and receiver are interested without any res ing contract or transaction amounts to ' trading with the enem at common law." His Honor ultimately answered that questio favour of the respondent, considering that the words of Sir Samu Evans in the case of the Panariellos (1), " where the intereoun is of a commercial nature it is usually denominated * trading y the enemy,' were too wide. His Honor also considered that learned President did not intend them to convey more than to transportation to ordinary transactions by which some " tra in the sense of a completed contract was effected. His Ho however, treated this as the only point of law demanding his « sideration, and apparently did not apprehend there was any quest as to the applicability of the legal test, whatever it was, to the cor re spondence actually in evidence. And the fact that his Honor s treated the question is, or may eventually be, a very material mat in the determination of this case. At the present juncture I no more regarding it, than to indicate that it is still open. The rest of the Court took the same view of the general questi as the learned Chief Justice, and, in addition, rested their judgm ont on the possibility that "communications on business matters reasonably open upon those words alone, and more partic! having regard to the rest of the charge as appearing in the c stated. The observations of the Privy Council in Blue & Descham vy. Red Mountain Railway Co. (2) are important in this connection The final consideration of this branch, however, remains until th case is returned with such of the correspondence as may be annex to it. When that occurs, it may be that the conviction should affirmed or quashed or a new trial granted. We are at pr unable to say which course should be finally adopted. As to the general question, I am of opinion the limitation pla by the Supreme Court on the legal phrase " trading with the enem) is not well founded. I suggested during the argument, and fur (1) 84 LJ. P., 140 at p. 142. (2) (1909) A.C., 361, at pp. 367-368. i OF AUSTRALIA. ies in thinking of " the enemy " simply as "an enemy "—in wately prohibited individuals, instead of members of one pro- hibited political community. The war, so far as Germany is con- ed, is as the Act itself states (sec. 2) between "His Majesty the and the German Emperor." Trading with the enemy means, common law, trading with the political community occupying territory of the German Emperor, and all persons adhering to 4 community. The learned Chief Justice, after quoting from my gment in Moss and Phillips v. Donohoe (1), observes : " Trading vith the enemy therefore means trading with a person resident or on business in the enemy country." Now, my object in ut case was to show that enemy character attached to individuals according to their personal nationality, but according to their ritorial character. So far from regarding them as having individual wateness for the purpose, | was enforcing the opposite conception, said (1): " When he" (the Sovereign) 'declares war, the e nation is at war, and is in a state of hostility to the whole of i conception lies at the root of the present question. Whatever "trade," not in the narrow sense of binding contracts between viduals or the exchange of goods in terms of a given arrange- it, but in the larger sense of prosecuting trade as between the ritories at war with each other, is "trade with the enemy." were bound to inquire whether a contract ensued from jations, we might be driven to inquire whether the law stralia or the law of England or the law of Germany pre- In questions of private international law, as it is called, n mercantile transactions are interpreted and enforced in times that might be a very relevant inquiry. But on a question trade with the enemy" no such distinctions can arise. All se is unlawful, either towards the enemy or from the enemy. er case, it is " with" the enemy. Trading with a particular individual enemy, though the most common form of offending, is (1) 20 C.L.R., 580, at p. 602. deration has confirmed my impression, that the fallacy of that H. C. or A. 1917. Sw Tue Kine H. C. or A. 1917. YN Tue KinaSnow. Isaacs J. HIGH COURT after all only an instance of the offence. Decided cases e this beyond question. Learned counsel for the Crown advanced the contention th intercourse with the enemy is "trading," using " trading" rare and practically obsolete sense. He based it on the words which were there substituted by the Court for " trading with enemy." The words "inconsistent with actual hostility" hs reference, apart from recognized military communications, to tracts for ransom at common law, and so far as I am awa nothing else. But in the case of The Rapid the word " intercourse it was used with respect to intercourse in relation to the pro with which the Court was dealing. I reject on the one hand respondent. "Trading with the enemy " in the Daimler Co.'s Case (2). ¥ The word " trade," when used with reference to foreign trade, always had a wide signification. Without going to any ea sources, we find in the opinion of the Attorney-General in 1681 t statement : " Your Majesty's subjects ought not to trade or t1 with any infidel country, not in amity with your Majesty, witho your licence"; and further on he uses the phrase "to trade India "—Chaimers' Opinions, at p. 582. Similarly, at pp. 59 597, in the year 1720. ; In Lhe Neptunus (3), in 1807, Sir William Scott said: "A de tion of hostility naturally carries with it an interdiction of al mercial intercourse ; it leaves the belligerent countries in a state is inconsistent with the relations of commerce." Sir Walliam So manifestly used the term " commercial intercourse" in the s (1) 8 Cranch, 155, at p. 162. (2) (1916) 2 A.C., 307. (3) 6 Rob. Adm., 403, at p. 405. OF AUSTRALTA. ously so expressed himself in The Hoop (1). So the Supreme of the United States understood Bynkershoek's word in Matthews Stea (2); and so did Story J. understand it in The Julia (3), be- ise the reasoning of the Court of Massachusetts was adopted, and this point see the report at p. 193. See also per Lord Wrenbury day & Co.'s Case (4), and per Lord Reading C.J. in Halsey v. d(5). Chitty on the Law of Nations (1817), at p. 1, assumes he identity of meaning of the two expressions; so does Manning on » of Nations, at p. 167. In Vandyck vy. Whitmore (6) Lord yon speaks of a " trading with an enemy's country." In Chitty e Prerogatives of the Crown, published in 1820, we find (p. 171) pressions " the general prohibition upon all traffic with the my" and "a trade with the enemy"; and see per Sir Samuel ns in The Kildonan Castle. The numerous decisions by which ty has been condemned without any transaction which would ount to trading between individuals, in the narrow sense, compel ission that contract, or quasi-contract, as I may call it, is e only criterion of " trading with the enemy." The decisions ide the case where a subject sends for his own goods to enemy of a ship merely sailing towards an enemy port, with the inten- 1 of going there (Lhe Abby (9) ). I pressed that case upon the tion of learned counsel, because it seems to me to be of great vance to the present. Sir William Scott there said (10): "If ip had been taken on a voyage to a colony now become an enemy, + would have required it to be shown, that due diligence been used to alter the voyage, and to exonerate the claimant the charge of an illegal trading with the enemy." It is clear that passage, the italics being mine, and from the rest of the nt, that the mere act of sailing would be * trading with 1) 1 Rob. Adm., 196, at pp. 199-200. (6) 1 East, 475, at p. 486. 7, at p. 10. (7) 8 Cranch, 155. 181. (8) 8 T.R., 548, at p. 556. i) (1916) 1 'A.C., 650, at p. 671. (9) 5 Rob. Adm., 251. (1916) 2 K.B., 707, at p. 712. (10) 5 Rob. Adm., at p. 253. kershoek's " commercia" (Quest. Jur. Pub., lib. t., ¢. 3). He H.C. oF A. 1917. Sw Tue Kine . Snow. Isaacs J. H.C. or A. 1917. Tue Kine Snow. Isaacs J. HIGH COURT the enemy." The commencement of the voyage, said Sir Wi Scott, would be "an act of trading." Its continuation wo equally so (see per Lord Parmoor in Sanday & Co.'s Case (I and per Lord Shaw in Horlock v. Beal {2); see also Hal International Law, vol. 1., p. 165). The mere entry into an e port is trading with the enemy (The Teutonia (3)). See the Nayade (4), a report which clearly shows the ample meani "trade with the enemy." e An excellent example of the meaning of the word "trade" relation to the enemy is found in the case of The Speculation (¢ By Order in Council of 7th January 1807 it was ordered " that vessel shall be permitted to trade from one port to another" belonging to France or her allies. (See Edwards, appendix D, note to p. 17). Sir William Scott said (6): "If this vessel was p ceeding to Riga to be sold, I am of opinion that this would be in itse a trading in contravention of the Order of 7th January, and th fore the ship would be liable to confiscation." In the same appe D, in the case of The Pelican, Sir William Grant spoke of a returning from San Domingo as "trading" in the sense we a considering, and said that if the port from which she sailed had be an enemy port she should have been condemned. It was urged on behalf of the respondent that Kershaw v. Kels (7) was still of importance, notwithstanding all adverse referen to that case. It was relied on as indicating what is meant by commercial intercourse. I cannot regard that case as a safe guid but in this respect it is adverse to the respondent. The Court ther said (8) " every kind of trading or commercial dealing or intercouts whether by transmission of money or goods, or orders for the deliv of either, between the two countries " at war," directly or indire 7 or through the intervention of third persons or partnerships, or is prohibited. Indeed, it was laid down in Kent's Commenta 7th ed. (1851), vol. 1., at p. 74, under the heading " 'Trading with (1) (1916) 1 A.C., at pp. 669-670. (5) Edw., 344. (2) (1916) 1 A.C., 486, at p. 507. (6) Edw., at p. 346. (3) 8 Moo. P.C.C. (N.S.), 411, at pp. (7) 100 Mass., 561. 421-492, (8) 100 Mass., at p. 573. (4) 4 Rob. Adm., 251. OF AUSTRALIA. , tthe Pesintation coos war is the absolute aaterruption and inter: etween the subjects of the two countries." I would add that in pendix A and appendix C to the same volume of Edwards' Reports s I have quoted, in two Orders in Council (19th November 1806 and 5th July 1807), the phrase ¢* commercial intercourse" is used in sely the same sense as " trade" is used in the Order in Council ference to these earlier precedents is rendered necessary use the verbal accuracy of the summation of the learned Presi- nt of the Admiralty Court in the case of The Panariellos has been juestioned. When the case came before the Privy Council (2), their dships (1) referred to the judgment under appeal in terms which icated they found no fault with it; (2) expressly said that the nt was unavailing that the intercourse in that case fell short of hnical "trading"; (3) held the charge of "trading with the ly" proved because the goods were "'so shipped as tu be in commercial intercourse with the enemy." he Privy Council obviously used the two expressions as identical in import, and thought the interchange of expression justified by authorities to which they had made reference. In the Daimler 's Case (3) Lord Shaw appeared to have been clearly of opinion ut "negotiation" might have been regarded as trading. His dship is there dealing with trading with the enemy, and in his fou proposition says: " No firm or company wheresoever or ever directed can so trade" (that is, by the company itself), , " continued the learned Lord, "can anything be negotiated transacted for it through any person or agency in this country." _ If the word " trading" be critically examined, it does not neces- sarily import a concluded bargain. In Owners of S.S. Hdenbridge Green (4) Lord Halsbury L.C. said: "A shopkeeper in London is g as long as his shop is open, although at the particular ) Edw., 1. (3) (1916) 2 A.C., at p. 330. 85 LJ.P 112. (4) (1897) A.C., 333, at pp. 335-336. »" that "one of the immediate and important consequences H. C. or A. 1917. Sow. Tsaacs J. H.C. or A. 1917. Sw Tue Kina cn Snow. Isaacs J. HIGH COURT moment of time to which you refer there may be no customer shop engaged in the act of barter." So if aman embarks ona tr: adventure, he may succeed, or he may fail, or the adventure intercepted, but every act he does in the course of that advent "trading." And if he is a British subject,and the adventure i which connects itself in any way with the enemy, he has committ the act of trading with the enemy. I is impossible, as it would b unwise, to limit by enumeration the acts which would consti trading with the enemy. . Lord Stowell, in The Neptunus (1), as far back as 1807 said world has grown more commercial," that is, in comparison 4 the time of earlier wars. So the Privy Council in The Pa (2) referred to the increased complexity of commercial inte course and the multiplication of facilities for enemy dealings ¥ goods. It is apparent that the mere instance of transportati which was the particular method of effecting trade with the ener or the mere instance of a binding relation cannot now be the s test. The view, pressed by the respondent, that before the intercou can amount to " trading" there must be a definite result—in form of contract, or, as I term it, quasi-contract, or transmission o exchange—is inconsistent with the cases of the class of The " and The Abby and The Hoop. A British subject commenci voyage with his ship and cargo en route to Germany, and cap on the way, may have had no prior communication with that country He may have had no "intercourse" at all in the narrow se that is, if actual contact, so to speak, is an essential factor in intercourse. His transportation is not final, and in fact has been no transportation to Germany if he is taken on the Nevertheless, upon the authorities, he is guilty of " trading the enemy " and his property is confiscable. He has taken the step, committed the first overt act, to carry out his intention of trading. No individual enemy could be pointed to as the perso with whom he even recs to trade, he ay even intend to (1) 6 Rob. Adm., at p. 406. (2) 85 LJ. P., 112. OF AUSTRALIA. pedia of the Laws of England, 2nd ed., vol. x1v., p. 566. element? The truth is that the illegality of the transporta- The rule itself is recognized, as it seems to me, by Lord in the Daimler Co.'s Case (2). There the learned Lord, itly referring to the Act, says: " If any official of the company s country entered into any intercourse with the enemy direc- re assumes of course that the intercourse would be commercial course. The expression "' commercial intercourse" in relation an enemy must connote for the effective operation of the prin- involved a comprehensive meaning to both "' commerce " and ourse."" ie principle of prohibiting commercial intercourse is itself simple, as indicated by the Privy Council in The Panariellos (3) and ord Parker with the concurrence of three other learned Lords Daimler Co.'s Case (4), the sphere of its application with the expansion of its subject matter and its methods, the necessities of self-protection for which vital purpose it In the Daimler Co.'s Case Lord Parker said (') that even 'ish company would assume an enemy character if the persons ing it take instructions from enemies, and that any person vingly dealing with the company in such a case is ' trading V, Suppose a person were, in such circumstances, knowingly to e for the delivery to the company of goods on approval, not that be an act of trading with the enemy, even though 'angement were never carried out? It would be admitted strength of the decided cases, that if the goods were despatched er, the act of trading would be complete even though a rnment officer intercepted them. But the argument is that 1 Rob, Adm., 219, note. (4) (1916) 2 A.C. 1916) 2 A.C., at p. 352. (5) (1916) 2 A.C. Lu. P,, 112. ds h we " adhered to the enemy " (The Nelly (1) ). See also the H. ©. or A. 1917. a) w, then, consistently with that, can an actual contract be an Tue Krxe v Snow. Isaacs J. H. C. or A. 1917. er Tue Kine v. Snow. Isaacs J. - notwithstanding the distinct arrangement—short of contra HIGH COURT forward the goods, there is no " trading " but commercial intercour which does not amount to "trading." Modern conceptions trading and commerce, and the nature of the interests intended be guarded by the rule against trading with the enemy, lead to reject the distinction. Robson's Case (1) is an instance of wide meaning attachable to "commerce." As to modern methods, I may instance the not impossible case of the transmission to tl enemy by wireless telegraphy of a valuable invention which w revolutionize food production. That would, ex concessis, be int course; but why in our present understanding of foreign comm« would it not also be commercial intercourse? And would not enrichment of the enemy country be " trading with the a y even though it were gratuitous? In my opinion it would. Soy my opinion, would be the offer of goods stored in a neutral country. The Reames cannot depend on whether the enemy says " yes" "no" to the trade operation of submitting the offer. The guil i the eben is as great as if ital offer were accepted : he has do "commerce," and both reason and necessity demand that his be regarded as an act of commerce. It is enough, strictly speaking as to the first branch, to say that the general definition of trading with the enemy given by the learned Chief Justice at the trial was correct. ' Again, if we had before us the whole of the correspondence it would be sufficient, at all events, to say whether it could possibl r be regarded as negativing all commercial intercourse in the way suggested by Gordon J. 'As it is, it seems to me desirable at this juncture to state what | think is the criterion of trading with the enemy. Anything done, either by word or deed, (1) which is done with theintention of taking part directly or indirectly in any commere transaction, operation or relation with the enemy country genera or with any person having at common law enemy character, a ( 2) which then Coie or in some degree effectuates such a eee : (1) (1915) 2 Ch., 124. OF AUSTRALIA. p in its creation or effectuation, is, in my opinion, at common commercial intercourse with "the enemy," and consequently ading with the enemy." t might still be a question in any given case whether the act as an offence against the Statute was trading with " the ny" within the meaning of the particular sub-paragraph of . 2 of sec. 2 upon which the charge was founded. For mice, it might be that " enemy " under sub-par. (c) has a larger ation than under sub-par. (a). I express no opinion as to but merely guard myself against any supposition that the ition has been overlooked. he first branch, then, J decide against the respondent. 3 As to the application of the definition at the trial to the actual rrespondence in evidence, it seems convenient, the Crown desires it, d the defendant does not object, that, in view of the second ground n by two of the learned Judges of the Supreme Court, the case uuld be remitted to the Chief Justice to append the correspondence nitted to the jury as the act of contravention, or such of it as he ders necessary for the questions reserved. With regard to the remaining question, I am clearly of opinion that isno substance in it. I am not sure that the direction was not too 'able for the respondent, because I am not clear that the mere ; that two British firms had not actually transmitted the corre- dence exonerates the defendant, even as to that correspondence. oes not enter into the consideration of this case, but I desire, event it being thought I assent to the view without further deration, to say that if it should ever become material I should ish to consider it in connection with the judgment of Lord Strath- ein the case of His Majesty's Advocate v. Innes (1). However ay be, that fact does not clear him if he engaged in com- ial correspondence with the enemy by means of the other ts. A man might duplicate his letters by sending identical espondence to two separate intermediaries; if he succeeded transmitting by means of one, he is not exculpated because (1) (1915) Sess. Cas., 40, at p. 42. ction, operation or relation were completely created, constitute H- ©. or A. 1917. —~ Tue Kixe v Snow. Isaacs J. 290 HIGH COURT H.©.or A. the other fails him. If authority were wanted, an analog . cedent is found in the case of R. v. Hill (1). Tur Kine I agree that the appeal should be allowed, and the order v Syow. proposed. Gavan Duffy J. Rich J. and it has since been used by Judges and text-writers to : varying expansions of that meaning, but we have no doubt at the time of the passing of the Trading with the Enemy Act it embraced all commercial intercourse, or, in other words, all busi dealings with an alien enemy, whether such dealings imposed or were merely communications intended to promote or pt business relations between the parties. We therefore think the argument urged by the respondent before the Supreme (i is not sound. But it is said that the direction of the learned Cl Justice to the jury is wrong because, in obedience to it, the may properly have considered that the sending of a communica not intended to promote or preserve business relations, or intended to put an end to such relations, constituted "ti with the enemy." The direction must be taken in connectiot with the evidence in respect of which it was given, and that is nc before us. We think the case should be remitted to the learne Chief Justice with an intimation that it should be amended setting out so much of the correspondence as in his opinio necessary to enable the Supreme Court to determine whether a miscarriage as is suggested may, in fact, have occurred. Powrrs J. I do not think it necessary to repeat, or to add thing to, the reasons given by my learned brothers in their j ments, why the proposed order should be made on this appeal (1) Russ. & R., 190. nt, by the inclusion, in the case, of the letters, telegrams blegrams put in in evidence on the trial, or by setting out ich of the correspondence as, in his opinion, is necessary to the Supreme Court to determine whether the correspondence ion—referred to in his direction to the jury—was ' intercourse " in the sense that it was intended to preserve her existing, or promote future, business relations with an "com- Appeal allowed and order appealed from set aside, Case remitted to the Chief Justice of South Australia for the addition to it, for the consideration of the Supreme Court of the State, of copies of the letters and telegrams which were admitted in evidence at the trial, or of such portion thereof as, consistently with the reasons of this Court and this order, his Honor may deem material for the purpose of elucidating his direction to the jury in relation to the points reserved. All questions of costs reserved. for the appellant, Gordon H. Castle, Crown Solicitor for ommonwealth, by Fisher & Powers. Asp VS ee that the order should be made, and the " case reserved " H. C. of A. 1917. pe Tue Kine w Syow. Powers J.