ever degree it exists, can only be considered in one Chap. III. character as an act of the most hostile nature. The offence of fraudulently carrying despatches in the service of the enemy being, then, greater than that of carrying contraband under any circumstances, it becomes absolutely necessary, as well as just, to resort to some other penalty than that inflicted in cases of contraband. The confiscation of the noxious article which constitutes the penalty in contraband, where the vessel and cargo do not belong to the same person, would be ridiculous when applied to despatches. There would be no freight dependent on their transportation, and therefore this penalty could not, in the nature of things, be applied. The vehicle in which they are carried must, therefore, be confiscated" (x). $504. despatches But carrying the despatches of an ambassador or other Diplomatic public minister of the enemy, resident in a neutral country, an exception. is an exception to the reasoning on which the above general rule is founded. "They are despatches from persons who are, in a peculiar manner, the favourite object of the protection of the law of nations, residing in the neutral country for the purpose of preserving the relations of amity between that State and their own government. On this ground a very material distinction arises with respect to the right of furnishing the conveyance. The neutral country has a right to preserve its relations with the enemy, and you are not at liberty to conclude that any communication between them can partake, in any degree, of the nature of hostility against you. The limits assigned to the operations of war against ambassadors, by writers on public law, are, that the belligerent may exercise his right of war against them, wherever the character of hostility exists: he may stop the ambassador of his enemy on his passage; but when he has arrived in the neutral country, and taken on himself the functions of his office, and has been admitted in his representative character, he becomes a sort of middle man, entitled to peculiar privileges, as set apart (x) The Atalanta, 6 C. Rob. 440. Part IV. for the preservation of the relations of amity and peace, in maintaining which all nations are, in some degree, interested. If it be argued that he retains his national character unmixed, and that even his residence is considered as a residence in his own country, it is answered that this is a fiction of law, invented for his further protection only, and as such a fiction, it is not to be extended beyond the reasoning on which it depends. It was intended as a privilege, and cannot be urged to his disadvantage. Could it be said that he would, on that principle, be subject to any of the rights of war in the neutral territory? Certainly not: he is there for the purpose of carrying on the relations of peace and amity, for the interests of his own country primarily, but at the same time for the furtherance and protection of the interests which the neutral country also has in the continuance of those relations. It is to be considered also, with regard to this question, what may be due to the convenience of the neutral State; for its interests may require that the intercourse of correspondence with the enemy's country should not be altogether interdicted. It might be thought to amount almost to a declaration, that an ambassador from the enemy shall not reside in the neutral State, if he is declared to be debarred from the only means of communicating with his own. For to what useful purpose can he reside there without the opportunity of such a communication? 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. The practice of nations has allowed to neutral States the privilege of receiving ministers from the belligerent powers, and of an immediate negotiation with them" (y). § 504a. The case of This subject was very exhaustively discussed in the celebrated case of The Trent. The facts of this case have been stated in a previous part of this work (). It will be remembered that The Trent was a regular mail-steamer plying on her usual course from Havanna to Nassau. Messrs. Slidell and Mason, the Confederate diplomatic agents, took their places on board at Havanna as ordinary passengers, and while the ship was on the high seas, she was stopped by a Federal ship-of(z) See ante, § 109 b. (y) Sir W. Scott, in The Caroline, 6 C. Rob. 461. war, Slidell and Mason, with their secretaries, were taken out, and the Chap. III. vessel was then allowed to continue her voyage. This case raised and has left unanswered the following question, which is thus stated by Professor Bernard: "Does a neutral ship forfeit that character, and expose itself to condemnation, by conveying, as passengers from one neutral port to another, persons going as diplomatic agents of the enemy to a neutral country? The American government maintains the affirmative of this question-if not in all cases, at least in a case where the agent has not yet acquired an official character-and the community he is commissioned to represent has not been recognized as independent. It insists on the affirmative even where the ship is a regular packet, carrying mails, goods, and passengers, and making her regular voyage from and to her accustomed ports, the persons themselves taking their berths as ordinary passengers, and coming on board in the usual way. The British government maintains the negative, and other European governments appear to be of the same opinion, which is, I think, the sounder and more reasonable" (a). § 504b. Prof. Bernard also says on this subject, "The following propositions, The carriage though condensed, will be intelligible to lawyers. I state them with of hostile diffidence; but they are, I believe, not far from the truth. persons. "1. A neutral ship, conveying persons in the enemy's employment, General rules. whether military or civil, is not liable to condemnation as prize, unless, on a consideration of all the circumstances, the court comes to the conclusion that she is serving the enemy as a transport, and so as to assist substantially, though perhaps not directly, his military operations. "2. If it be proved that the ship, though owned by a neutral, was actually hired for such a purpose by the enemy, it is immaterial whether the persons conveyed are many or few, important or insignificant, and whether the purpose of the hiring was or was not known by the master or owner. I understand by hiring any contract which gives the actual control and disposal of the ship to the enemy. "3. If, on the other hand, such a hiring by the enemy be not shown, it then becomes necessary to prove that the service performed was in its nature such as is rendered by a transport. The number of the persons conveyed, the nature of their employment, their importance, their immediate or ultimate destination, may then become material elements of proof; and there should be evidence of intention, or of knowledge from which intention may be reasonably inferred, on the part of the owner, or his agent, the master. "4. It is incorrect, therefore, to speak of the conveyance of such persons as if it were the same thing as the conveyance of 'contraband of war,' or as if the same rules were applicable to it. It is a different thing, and the rules applicable to it are different. “5. The fact that the voyage is to end at a neutral port is not conclusive against condemnation, but is a strong argument against it, and (a) Mountague Bernard, Neutrality of Great Britain during the American Civil War, p. 223. Part IV. would indeed be practically conclusive in most cases, especially if coupled with proof that the ship was pursuing her ordinary employment. § 505. Penalty for the carrying of contraband. § 506. The ship must be taken in delicto. "6. It is not lawful, on the high seas, to take persons, whatever their character, as prisoners out of a neutral ship which has not been judicially proved to have forfeited the benefit of her neutral character" (b). In general, where the ship and cargo do not belong to the same person, the contraband articles only are confiscated, and the carrier-master is refused his freight, to which he is entitled upon innocent articles which are condemned as enemy's property. But where the ship and the innocent articles of the cargo belong to the owner of the contraband, they are all involved in the same penalty. And even where the ship and the cargo do not belong to the same person, the carriage of contraband, under the fraudulent circumstances of false papers and false destination, will work a confiscation of the ship as well as the cargo. The same effect has likewise been held to be produced by the carriage of contraband articles in a ship, the owner of which is bound by the express obligation of the treaties subsisting between his own country and the capturing country, to refrain from carrying such articles to the enemy. In such a case, it is said that the ship throws off her neutral character, and is liable to be treated at once as an enemy's vessel, and as a violator of the solemn compacts of the country to which she belongs (c). The general rule as to contraband articles, as laid down by Sir W. Scott, is that the articles must be taken in delicto, in the actual prosecution of the voyage to an enemy's port." Under the present understanding of the law of nations, you cannot generally take the proceeds in the return voyage. From the moment of quitting (b) Neutrality of Great Britain, p. 224. (c) The Ringende Jacob, 1 C. Rob. 91; The Sarah Christina, Ibid. 237; The Mercurius, Ibid. 288; The Franklin, Ibid. 217; The Edward, 4 Ibid. 69; The Ranger, 6 Ibid. 125; The Neutralitet, 3 Ibid. 295. Carrington v. Merchants' Ins. Co., 8 Peters, 518; The Bermuda, 3 Wallace, 557. As to how far the shipowner is liable for the act of the master in cases of contraband, see Wheaton's Rep. vol. ii., Appendix, Note I. pp. 37, 38. port on a hostile destination, indeed, the offence is com- Chap. III. plete, and it is not necessary to wait till the goods are actually endeavouring to enter the enemy's port; but beyond that, if the goods are not taken in delicto, and in the actual prosecution of such a voyage, the penalty is not now generally held to attach" (d). But the same learned judge applied a different rule in other cases of contraband, carried from Europe to the East Indies, with false papers and false destination, intended to conceal the real object of the expedition, where the return cargo, the proceeds of the outward cargo taken on the return voyage, was held liable to condemnation (e). rule. The § 507. Although the general policy of the American govern- American ment, in its diplomatic negotiations, has aimed to limit Commercen. the catalogue of contraband by confining it strictly to munitions of war, excluding all articles of promiscuous use, a remarkable case occurred during the late war between Great Britain and the United States, in which the Supreme Court of the latter appears to have been disposed to adopt all the principles of Sir W. Scott, as to provisions becoming contraband under certain circumstances. But as that was not the case of a cargo of neutral property, supposed to be liable to capture and confiscation as contraband of war, but of a cargo of enemy's property going for the supply of the enemy's naval and military forces, and clearly liable to condemnation, the question was, whether the neutral master was entitled to his freight as in other cases of the transportation of innocent articles of enemy's property; and it was not essential to the determination of the case to consider under what circumstances articles ancipitis usûs might become contraband. Upon the actual question before (d). The Imina, 3 C. Rob. 168. (e) The Rosalie and Betty, 2 C. Rob. 343; The Nancy, 3 Ibid. 122. The soundness of these last decisions may be well questioned; for in order to sustain the penalty, there must be, on principle, a delictum at the moment of seizure. To subject the property to |