how an extension of the term to naval stores took place about the beginning of the eighteenth century. What is contraband of war at one time or place, need not be so at another. To take the notorious instance of coal ; it evidently could not be contraband of war ere steam-ships existed ; it need not be even now, in any country which does not yet possess them ; it would be contraband of war of the most dangerous nature in a country which has warsteamers, and can get no coal but by sea. Thus, whilst it is easy to argue away all contraband of war by cavilling about the limits to be affixed to it, the very uncertainty of these limits in nature renders it all the more necessary to fix them by authority. Accordingly, the practice has often been followed in treaties, of defining or enumerating what articles should be contraband of war; as in the treaty of commerce and navigation of 1794, between Great Britain and the United States; or the maritime convention of 1801, between Great Britain and Russia, the long enumeration of contraband articles, in which begins with “cannons,” and ends with “saddles and bridles." Of late our Queen's proclamations have in part fulfilled the office of a treaty for such purposes. I say in part, because the action of the proelamation is clearly only a limited one. No ship probably could escape condemnation in a belligerent's prize court, which could be shown to have carried articles declared contraband by the proclamation of its own sovereign ; but it does not follow that it would not be condemned for carrying articles not declared contraband by the proclamation, but which the prize court would hold to be such What is needed on this head in international law, is clearly definite rules, universal agreement, subject of course to modification from time to time.

Let us consider now the case of despatches. The right of search and seizure for the carriage of them is fully recognised by international law. Lord Stowell, in particular, is very strong on the subject. He treats as despatches (case of the Caroline) “all official com

No. 27.-YOL V.

“munications of official persons on the “public affairs of the Government." “ The comparative importance of the particular papers is immaterial,” he declares; “it is sufficient that they “relate to the public business of the “enemy, be it great or small.” “It is not to be argued,” he says, in another case (the Atalanta), that “it is necessary to show a military tendency.” The consequence of such a service rendered by a neutral “is indefinite, infinitely be“ yond the effect of any contraband that “ can be conveyed. ... In the transmis“ sion of despatches may be conveyed “ the entire plan of a campaign. ... It is “impossible to limit a letter to so small “a size as not to be capable of producing “ the most important consequences in “the operations of the enemy." And lastly, “when a party, from want of " proper caution, suffers despatches to “ be conveyed on board his vessel, the " plea of ignorance will not avail him" (the Rapid).

It is impossible to exaggerate the force and decisiveness of these positions. Nevertheless, I cannot help thinking that they require to be very considerably modified, if not wholly given up.

Let us consider the case of a war on land. France is at war with Holland, and has landed troops on the coast. Luxemburg, however, has not been reduced ; Belgium stands neutral. Would it be a breach of her neutrality to allow the despatches of both belligerents to pass across her territory_between the invading army and France between the Netherlands and outlying Luxemburg ? I rather think that either belligerent, whose despatches she might stop, would be very apt to make it a casus belli. I am not aware that during the Italian campaign Austria ever dreamed of making the passage of French couriers through Switzerland a ground of complaint against the latter.

Is there any reason why the mere transmission of despatches by sea should be governed by other rules ? Unless the neutral ship be actually hired for the transmission of the despatch, in which case she is clearly neutral no longer, but in the service of the belligerent, or unless the coast be blockaded to which the despatch is addressed, I confess I see no sich reason. Whilst the coast is open, the carrying of the despatch is primâ 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 belli. gerent 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 i of the two states shall be transacted

« 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 carrying 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 is not also to be forbidden from carrying 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 versā, as by land from the Belgian frontier to Ostend. The latter would be a elear casus belliwhy 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 . soldiers of an enemy."

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 rights of belligerents and duties of neutrals are concerned. In the negotiations 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 belli“gerent,”—thus embracing the case of both military men and civilians. And Lord Stowell, ad verting 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 pur“ pose so intimately connected with the “hostile operations." (The Orozembo.)

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 employ, on a bona fide voyage between 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. But supposing the warlike purpose to be proved, it seems to me that the unneutral conduct in carrying such persons is as evident, as in carrying military persons themselves. Would it be lawful for Belgium, neutral between belligerent France and England, to allow civilians in the service of either or both, to organize military operations from within

s 2

her territory on land ? Here again, mission must be a bona fide one ; the why should Belgian ships be subject to ambassador must not be sent simply to a different rule ?

organise war. If he does so, as in the But now we come across the difficult case of the French minister Genet, in question of the rights of ambassadors. the early days of the United States, who It is admitted that neutrals have a right used his position as minister in that to keep up equal friendly relations with country to direct hostile operations against either belligerent, subject to the belli- England, he clearly puts himself out of gerent right of blockade. It is admitted the pale of international law, whether that they may send, receive, and keep at sea or on shore. ambassadors to, from, and with each. I have now endeavoured to glance at It is admitted that such ambassadors, the various heads under which rights of while within the neutral's territory, are search and seizure have been or should inviolable. It is admitted, as we have be claimed. The question of the protecseen, that despatches may be lawfully tion which may be afforded by a national carried by a neutral from the ambas. flag is one much involved with the former sador of a belligerent in a neutral state ones, yet somewhat overlapping them. to the belligerent country, and this on There was a time when a right of sanctuthe ground that “it is too much to say ary was claimed by ambassadors. It is now “ that all the business of the two states admitted that on land no such right “shall be transacted by the minister of generally exists; that a foreign ambas“the neutral state, residentin the enemy's sador's flag in a country cannot override “ country.” But on the other hand, Lord the municipal law of that country, so Stowell, following Vattel, followed by as to screen offenders against it, unless Phillimore, has expressly said that in the persons of the ambassador him“ you may stop the anıbassador of your self and his followers, who are deemed, “enemy on his passage.”

by a fiction, "extra territorial." I say Are these positions strictly consistent ? " generally exists,” because few people When a belligerent stops his adversary's can doubt that in countries where ambassador from reaching the neutral municipal law has, properly speaking, state, does he not practically compel “all no existence, or at times when it is “ the business of the two states” to be utterly trampled under foot, an ambas“ transacted by the minister of the sador is often morally justified, and “ neutral” one? If the neutral has a would often be supported by his country, right to receive ambassadors at all, is in extending the protection of his flag to not that right inchoate from the instant those who would otherwise fall victims to that ambassador sets his foot on board a despot's caprice, or to the violence of a at least that neutral's ship to come to mob. But such are rather cases of him?

international morality, than of interClearly, then, in the interest of neutrals, national law. They are governed simply the international law on the subject of by the broad human principle of shelterambassadors, as well as their despatches, ing a fellow-creature against unjust Tequires to be settled and rendered con- violence. sistent. The right to stop an ambassador At sea the case is different. There is in transitu, if to be exercised at all on no need of a fiction of extra-territoriality. hoard a neutral vessel not breaking a The ship is a physical domain of municiblockade, would seem to require limi- pal law. Every person who is on board tation by the right of the neutral power the ship of a particular nation, whether to whom such ambassador is accredited, belonging to that nation or not, is subof receiving such ambassador, and there- ject to the municipal laws of that nation. by of claiming to have him delivered up; If he commits an offence there, he is a limitation which would apply to every punishable according to those laws, and subordinate agent sent to open relations not according to his own. This being with the neutral government. But the the case-he being pro tempore a subject of the nation whose flag floats over known well how to assert that alleged that vessel-it seems but fair that he right on their own behalf; putting should be able to claim the benefits, as even out of view the Trent case, they well as bound to bear the obligations, of have now unfortunately shown also his temporary allegiance : that, in short, in the utterly lawless seizure of exhe should be able to claim the protection senator Gwir and other Confederates on of the flag. Of course it is competent their passage through the neutral terfor the master of the vessel, considered ritory of the Isthmus of Panama, bow as the executive authority of the munici- ready they are to trample upon it when pal laws of his own country on board, asserted against them by a Power too and subject to any civil liabilities for weak and defenceless for them to rebreach of contract, to deliver up or expel spect. the claimant, whenever he might be de- I have indicated a few of the grave livered up or expelled from the country questions of international law which the itself. But where the claim of protection affair of the Trent has raised, and none is made, and not refused, it is difficult of which it will certainly have sufficed to see how the individual can be sepa- to settle. Can nothing be done to settle rated from the whole ship-how inter- them, otherwise than by the wrangle of national law can step in between them, diplomatists on each side? Such interto seize the one, and let the other go. national law as exists has, in fact, grown

I cannot help thinking, therefore, up at a time when war, and not peace, that, subject to a duly regulated exercise was considered as the chief concern of a of the right of search and of seizure for nation's life. It is only within the unneutral conduct, the principle of abso- present century, it may be said, that the lute protection of persons by a bona interests of war have been felt to be fide neutral flag deserves to be ad- wholly subordinate to those of peace. mitted into international law. I say, Hence international law requires to be by a bona fide neutral flag, as of revised from that new point of view, course the principle could not apply of which the neutral is the reprewhere the hoisting of such flag is sentative. But the privileges of neumerely colourable, -where another mu- trals require no less to be revised than nicipal law than that it denotes, is the rights of belligerents. Hitherto, so really in force on board;—where, in short, entirely has the point of view been one the ship is practically in the service of of war, that virtually a state of war has one of the belligerents. In the case of been assumed between the neutral himthe Trent, beyond all question the flag self and each belligerent, the former was a bona fide one,-- the ship was a being held entitled to do everything that British ship, governed by British muni. a belligerent did not hinder him from cipal law, and the persons of the envoys doing. But the secret war carried on claiming the protection of the flag by a neutral in fomenting hostilities, should, upon the principles laid down, under colour of peace, is really an have been inviolable. But there would offence against mankind. The interests be no greater mistake than to suppose of all being peace, he injures all by that international law, as at present re- covertly assisting war. The time will cognised, does in any way cover those principles. The “right of asylum,” of I have not adverted in this paper to the which we hear talk in the matter, has proposal, much agitated of late years, to render not risen to be more than a comity among

all private property inviolable at sea. There

is probably more to say upon it than Chamnations-a very noble policy pursued bers of Commerce, which have shown theme by some, who have conscience enough to selves so ready to vote upon it, are aware. recognise, and strength enough to fulfil, But it is a question chietly important as bethe common human duty of harbouring

tween belligerents; and, dealing only here

with those questions which may divide belthe defenceless, until shown unworthy lirerent and neutral, I bave felt myself entitled of shelter. The United States have tū leave it on vue side.

« ElőzőTovább »