in the service of the belligerent, or unless the coast be blockaded to which the despatch is addressed, I confess I see no such reason. Whilst the coast is open, the carrying of the despatch is prima facie a mere friendly act, entirely within the rights of the neutral. It is no more concern of his that the despatch should direct hostile operations, than it is, that the cargo of corn which he carries should be used for such. Its being addressed to a blockaded coast may afford, indeed, some suspicion of an intention to break the blockade, just as the carriage of goods so directed may afford; but, even in this case, according to the new rule of "free ship, free goods," it seems to me that both should be respected, if the voyage is shown to be a bona fide one to a neutral or open port. The breach of a blockade is a mischief, not a crime; the neutral is not to be considered as an accomplice because, not breaking the blockade himself, he carries for one who does or means to do so. I venture to think, therefore, that the mere carriage of despatches by neutrals -the voyage not being for that purpose -will, by the international law of the future, be primarily taken out of the category of un-neutral acts, and only assimilated to the carriage of contraband in those cases where knowledge of the hostile character of the despatch can be distinctly fastened upon the master or owners. An exception has indeed been admitted as respects despatches, when proceeding from an ambassador. It has been decided (the Caroline) that despatches may be lawfully carried by a neutral from the ambassador of a belligerent in a neutral state to the belligerent country. But it has also been decided that despatches may not be lawfully carried from a belligerent country to the ambassador of a belligerent in a neutral country-the despatches in this case being indeed meant for the belligerent country (the Constantia, cited in note to the Caroline). Are these two views consistent? "It is too much," said Lord Stowell, "to say that all the business 66 "by the minister of the neutral state, "resident in the enemy's country. The practice of nations has allowed to "neutral states the privilege of receiving "ministers from the belligerent states, "and the use and convenience of an "immediate negotiation with them." But when a belligerent stops his adversary's despatches from reaching the neutral state, does he not, pro tanto, compel "the business of the two states to be "transacted by the minister of the neutral one?" If meant for the benefit of the neutral-e. g. to pay debts contracted in the neutral country,-is not the "convenience" of the neutral seriously invaded by a stoppage of the despatch? I cannot help thinking, therefore, that-apart from the question of breach of blockade-the carriage of despatches to the ambassador of the belligerent in the neutral state deserves to be placed on precisely the same footing as the carriage of despatches from such ambassador. Again, the growth, since the last war, of the great system of international mail transport, which has now well - nigh girdled the world, amounts to another call for the modification of existing international law on this subject. I believe myself that where a mail-packet has on board a duly appointed officer in charge of mail-bags, she should be absolutely exempt from search; although it would probably be necessary in that case to give the mail-agent certain powers of forbidding the carriage of articles or persons contraband or quasi-contraband of war. But at any rate, the inclusion in such cases in an ordinary mail-bag of a despatch to or from either belligerent should of itself-as admitted, indeed, already by French and American jurists -constitute no indicium of unneutral conduct. There remains now to consider the car; rying of persons in the service of a belligerent. As respects military persons, the right of search and seizure must, I take it, subsist, as clearly as in respect of contraband of war. It is absurd to forbid a neutral from carrying cannons or rifles, if he The International Law of the Sea. the hands that are to make hostile use of them. No doubt there is an old case before Sir George Lee (the Hendric and Alida), which decided that the carriage of both military men and contraband of war of the most distinct nature, intended for the service and use of a belligerent, but between neutral port and neutral port, could not be interfered with. But I cannot see how such doctrines can be reconciled with any consistent view of ship-territory, as ruled by the municipal laws of the country to which it belongs. If England be at war with France, Belgium neutral, it must be just as much a breach of Belgian friendship with Eng. land to carry French soldiers by Belgian ships from Ostend to Antwerp, or vice versá, as by land from the Belgian fronThe latter would be a tier to Ostend. clear casus belli-why is a ship to do the former, and go free? The destination of the ship carrying such military persons appears therefore immaterial, if their errand be a warlike one. But, admitting the point, as respects military men, the great question remains, which the Trent affair involves, whether the same reasoning applies to civilians? American jurisprudence seems clearly opposed to such an extension. Neither Dr. Wheaton in his "Elements of International Law," nor the judges of the Supreme Court in an important case of "the Commercen," in which the unneutral act of carrying military passengers was dwelt upon by both the majority and the minority of In the the Court, give any hint of it. 66 It seems difficult to me, however, I confess, to distinguish civilian officials on Government service for war purposes, from military persons, so far as the In the negorights of belligerents and duties of neutrals are concerned. tiations above referred to, the article noticed was eventually amended, through English objections, so as to provide simply that neither party while at war should "take from on board the vessels "of the other the subjects of the oppo"site belligerent, unless they should be "in the actual service of such belligerent," thus embracing the case of both military men and civilians. And Lord Stowell, adverting to the point in a case where it was not necessary to decide it (ie. where civilians were carried together with military men), said it appeared to him "but reasonable that "whenever it is of sufficient importance "to the enemy that such persons should "be sent out on the public service, at "the public expense, it should afford equal ground of forfeiture against a "vessel that may be let out for a purpose so intimately connected with the "hostile operations." (The Orozembo.) 66 No doubt the above case was that of a voyage virtually to a colony of the belligerent power. No doubt the stoppage of civilians in your enemy's embetween a bona fide voyage ploy, on neutral port and neutral port, as in the Trent matter, seems wholly unparalleled in the history of international law. No doubt the military character carries with it an inherent notice of warlike purpose, which should only be rebutted by special proof that the soldier's errand happens to be a peaceful one; whilst the civil character is primâ facie peaceable, and special evidence should be required to prove the warlike purpose. be negotiations between Great Britain and But sup posing the warlike purpose to be proved, in the service of the belligerent, or unless the coast be blockaded to which the despatch is addressed, I confess I see no such reason. Whilst the coast is open, the carrying of the despatch is prima facie a mere friendly act, entirely within the rights of the neutral. It is no more concern of his that the despatch should direct hostile operations, than it is, that the cargo of corn which he carries should be used for such. Its being addressed to a blockaded coast may afford, indeed, some suspicion of an intention to break the blockade, just as the carriage of goods so directed may afford; but, even in this case, according to the new rule of "free ship, free goods," it seems to me that both should be respected, if the voyage is shown to be a bonâ fide one to a neutral or open port. The breach of a blockade is a mischief, not a crime; the neutral is not to be considered as an accomplice because, not breaking the blockade himself, he carries for one who does or means to do so. I venture to think, therefore, that the mere carriage of despatches by neutrals -the voyage not being for that purpose -will, by the international law of the future, be primarily taken out of the category of un-neutral acts, and only assimilated to the carriage of contraband in those cases where knowledge of the hostile character of the despatch can be distinctly fastened upon the master or owners. An exception has indeed been admitted as respects despatches, when proceeding from an ambassador. It has been decided (the Caroline) that despatches may be lawfully carried by a neutral from the ambassador of a belligerent in a neutral state to the belligerent country. But it has also been decided that despatches may not be lawfully carried from a belligerent country to the ambassador of a belligerent in a neutral country-the despatches in this case being indeed meant for the belligerent country (the Constantia, cited in note to the Caroline). Are these two views consistent? "It is too much," said Lord Stowell, 66 to say that all the business "by the minister of the neutral state, "resident in the enemy's country. The "practice of nations has allowed to "neutral states the privilege of receiving "ministers from the belligerent states, "and the use and convenience of an "immediate negotiation with them." But when a belligerent stops his adversary's despatches from reaching the neutral state, does he not, pro tanto, compel "the business of the two states to be "transacted by the minister of the neutral one?" If meant for the benefit of the neutral-e. g. to pay debts contracted in the neutral country,-is not the "convenience" of the neutral seriously invaded by a stoppage of the despatch? I cannot help thinking, therefore, that-apart from the question of breach of blockade-the carriage of despatches to the ambassador of the belligerent in the neutral state deserves to be placed on precisely the same footing as the carriage of despatches from such ambassador. Again, the growth, since the last war, of the great system of international mail transport, which has now well - nigh girdled the world, amounts to another call for the modification of existing international law on this subject. I believe myself that where a mail-packet has on board a duly appointed officer in charge of mail-bags, she should be absolutely exempt from search; although it would probably be necessary in that case to give the mail-agent certain powers of forbidding the carriage of articles or persons contraband or quasi-contraband of war. But at any rate, the inclusion in such cases in an ordinary mail-bag of a despatch to or from either belligerent should of itself-as admitted, indeed, already by French and American jurists -constitute no indicium of unneutral conduct. There remains now to consider the car; rying of persons in the service of a belligerent. As respects military persons, the right of search and seizure must, I take it, subsist, as clearly as in respect of contraband of war. It is absurd to forbid a neutral from carrying cannons or rifles, if he The International Law of the Sea. the hands that are to make hostile use of them. No doubt there is an old case before Sir George Lee (the Hendric and Alida), which decided that the carriage of both military men and contraband of war of the most distinct nature, intended for the service and use of a belligerent, but between neutral port and neutral port, could not be interfered with. But I cannot see how such doctrines can be reconciled with any consistent view of ship-territory, as ruled by the municipal laws of the country to which it belongs. If England be at war with France, Belgium neutral, it must be just as much a breach of Belgian friendship with Eng land to carry French soldiers by Belgian ships from Ostend to Antwerp, or vice versá, as by land from the Belgian frontier to Ostend. The latter would be a clear casus belli-why is a ship to do the former, and go free? The destination of the ship carrying such military persons appears therefore immaterial, if their errand be a warlike one. But, admitting the point, as respects military men, the great question remains, which the Trent affair involves, whether the same reasoning applies to civilians? American jurisprudence seems clearly opposed to such an extension. Neither Dr. Wheaton in his "Elements of International Law," nor the judges of the Supreme Court in an important case of "the Commercen," in which the unneutral act of carrying military passengers was dwelt upon by both the majority and the minority of the Court, give any hint of it. In the negotiations between Great Britain and America in 1804, the first article of the projected treaty, as proposed by the Americans, bore that no person was to be taken out of a ship of either party upon the high seas, "unless such person be at the time in the military service of an enemy." A few years later, Jefferson, in a letter to Mr. Bowdoin, of April 2d, 1807,("Correspondence," iv. p. 72), looking forward to the "establishment of neutral rights" by a peace, adds expressly, among which should be that "of taking no persons by a belligerent "out of a neutral ship, unless they be the It seems difficult to me, however, I confess, to distinguish civilian officials on Government service for war purposes, from military persons, so far as the In the negorights of belligerents and duties of neutrals are concerned. tiations above referred to, the article noticed was eventually amended, through as to provide English objections, so as simply that neither party while at war should "take from on board the vessels "of the other the subjects of the oppo"site belligerent, unless they should be "in the actual service of such belli"gerent," thus embracing the case of both military men and civilians. And Lord Stowell, adverting to the point in a case where it was not necessary to decide it (i.e. where civilians were carried together with military men), said it appeared to him "but reasonable that "whenever it is of sufficient importance "to the enemy that such persons should "be sent out on the public service, at "the public expense, it should afford 'equal ground of forfeiture against a "vessel that may be let out for a purpose so intimately connected with the "hostile operations." (The Orozembo.) 66 No doubt the above case was that of a voyage virtually to a colony of the belligerent power. No doubt the stoppage of civilians in your enemy's ema bona fide voyage between ploy, on neutral port and neutral port, as in the Trent matter, seems wholly unparalleled in the history of international law. No doubt the military character carries with it an inherent notice of warlike purpose, which should only be rebutted by special proof that the soldier's errand happens to be a peaceful one; whilst the civil character is primâ facie peaceable, and special evidence should be required to But supprove the warlike purpose. posing the warlike purpose to be proved, it seems to me that the unneutral conduct in carrying such persons is as themselves. evident, as in carrying military persons Would it be lawful for Belgium, neutral between belligerent France and England, to allow civilians in the service of either or both, to $ 2 organize military operations from within her territory on land? Here again, why should Belgian ships be subject to a different rule? But now we come across the difficult question of the rights of ambassadors. It is admitted that neutrals have a right to keep up equal friendly relations with either belligerent, subject to the belligerent right of blockade. It is admitted that they may send, receive, and keep ambassadors to, from, and with each. It is admitted that such ambassadors, while within the neutral's territory, are inviolable. It is admitted, as we have seen, that despatches may be lawfully carried by a neutral from the ambassador of a belligerent in a neutral state to the belligerent country, and this on the ground that "it is too much to say "that all the business of the two states "shall be transacted by the minister of "the neutral state, resident in the enemy's country." But on the other hand, Lord Stowell, following Vattel, followed by Phillimore, has expressly said that you may stop the ambassador of your "enemy on his passage." 66 Are these positions strictly consistent ? When a belligerent stops his adversary's ambassador from reaching the neutral state, does he not practically compel "all "the business of the two states" to be "transacted by the minister of the "neutral" one? If the neutral has a right to receive ambassadors at all, is not that right inchoate from the instant that ambassador sets his foot on board at least that neutral's ship to come to him? Clearly, then, in the interest of neutrals, the international law on the subject of ambassadors, as well as their despatches, requires to be settled and rendered consistent. The right to stop an ambassador in transitu, if to be exercised at all on board a neutral vessel not breaking a blockade, would seem to require limitation by the right of the neutral power to whom such ambassador is accredited, of receiving such ambassador, and thereby of claiming to have him delivered up; a limitation which would apply to every subordinate agent sent to open relations mission must be a bona fide one; the ambassador must not be sent simply to organise war. If he does so, as in the case of the French minister Genet, in the early days of the United States, who used his position as minister in that country to direct hostile operations against England, he clearly puts himself out of the pale of international law, whether at sea or on shore. I have now endeavoured to glance at the various heads under which rights of search and seizure have been or should be claimed. The question of the protection which may be afforded by a national flag is one much involved with the former ones, yet somewhat overlapping them. There was a time when a right of sanctuary was claimed by ambassadors. It is now admitted that on land no such right generally exists; that a foreign ambassador's flag in a country cannot override the municipal law of that country, so as to screen offenders against it, unless in the persons of the ambassador himself and his followers, who are deemed, by a fiction, "extra territorial." I say "generally exists," because few people can doubt that in countries where municipal law has, properly speaking, no existence, or at times when it is utterly trampled under foot, an ambassador is often morally justified, and would often be supported by his country, in extending the protection of his flag to those who would otherwise fall victims to a despot's caprice, or to the violence of a mob. But such are rather cases of international morality, than of international law. They are governed simply by the broad human principle of sheltering a fellow-creature against unjust violence. At sea the case is different. There is no need of a fiction of extra-territoriality. The ship is a physical domain of municipal law. Every person who is on board the ship of a particular nation, whether belonging to that nation or not, is subject to the municipal laws of that nation. If he commits an offence there, he is punishable according to those laws, and not according to his own. This being |