"munications of official persons on the

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 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

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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 proclamation 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 comNo. 27.-VOL V.

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 beyond 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

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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

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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 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 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 England 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 elear 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 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. 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.)

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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 $ 2

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."

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 with the neutral government. But the

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 the case-he being pro tempore a subject

of the nation whose flag floats over that vessel-it seems but fair that he should be able to claim the benefits, as well as bound to bear the obligations, of his temporary allegiance: that, in short, he should be able to claim the protection of the flag. Of course it is competent for the master of the vessel, considered as the executive authority of the municipal laws of his own country on board, and subject to any civil liabilities for breach of contract, to deliver up or expel the claimant, whenever he might be delivered up or expelled from the country itself. But where the claim of protection is made, and not refused, it is difficult to see how the individual can be separated from the whole ship-how international law can step in between them, to seize the one, and let the other go.

I cannot help thinking, therefore, that, subject to a duly regulated exercise of the right of search and of seizure for unneutral conduct, the principle of absolute protection of persons by a boná fide neutral flag deserves to be admitted into international law. I say, by a bona fide neutral flag, as of course the principle could not apply where the hoisting of such flag is merely colourable,-where another municipal law than that it denotes, is really in force on board;-where, in short, the ship is practically in the service of one of the belligerents. In the case of the Trent, beyond all question the flag was a bona fide one,-the ship was a British ship, governed by British municipal law, and the persons of the envoys claiming the protection of the flag should, upon the principles laid down, have been inviolable. But there would be no greater mistake than to suppose that international law, as at present recognised, does in any way cover those principles. The "right of asylum," of which we hear talk in the matter, has not risen to be more than a comity among nations a very noble policy pursued by some, who have conscience enough to recognise, and strength enough to fulfil, the common human duty of harbouring the defenceless, until shown unworthy of shelter. The United States have

known well how to assert that alleged right on their own behalf; putting even out of view the Trent case, they have now unfortunately shown also in the utterly lawless seizure of exsenator Gwir and other Confederates on their passage through the neutral territory of the Isthmus of Panama, how ready they are to trample upon it when asserted against them by a Power too weak and defenceless for them to respect.1

I have indicated a few of the grave questions of international law which the affair of the Trent has raised, and none of which it will certainly have sufficed to settle. Can nothing be done to settle them, otherwise than by the wrangle of diplomatists on each side? Such international law as exists has, in fact, grown up at a time when war, and not peace, was considered as the chief concern of a nation's life. It is only within the present century, it may be said, that the interests of war have been felt to be wholly subordinate to those of peace. Hence international law requires to be revised from that new point of view, of which the neutral is the representative. But the privileges of neutrals require no less to be revised than the rights of belligerents. Hitherto, so entirely has the point of view been one of war, that virtually a state of war has been assumed between the neutral himself and each belligerent, the former being held entitled to do everything that a belligerent did not hinder him from doing. But the secret war carried on by a neutral in fomenting hostilities, under colour of peace, is really an offence against mankind. The interests of all being peace, he injures all by covertly assisting war. The time will

1 I have not adverted in this paper to the proposal, much agitated of late years, to render There all private property inviolable at sea. is probably more to say upon it than Chambers of Commerce, which have shown themselves so ready to vote upon it, are aware. But it is a question chiefly important as between belligerents; and, dealing only here with those questions which may divide belligerent and neutral, I have felt myself entitled

to leave it on one side.