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Tous les autres exemplaires originaux sont fiimifts en commenpant par la premiere page qui comporte une empreinte d'impresslon ou d'illustration et en terminant par la dernidre page qui comporte une telle empreinte. Un des symboles suivants apparaftra sur la dernidre image de cheque microfiche, selon le cas: le symbols — »» signifie "A SUIVRE", le symbols V signifie "FIN". Les cartes, planches, tableaux, etc., peuvent dtre fiim^s d des taux de reduction diff6rents. Lorsque le document est trop grand pour §tre reprodult en un seul clichd, 11 est film6 d partir de I'angle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images n6cessaire. Les diagrammes suivants illustrent la m^thode. 1 2 3 1 2 3 4 5 6 ' >^}.'^' NOTES ON SOME QUESTIONS SUOGESTED BY THE CASE OF THE " TEENT." BY MOUNTAOUE BEKNABD, B.C.L., opctBDiUB PRonssos or jmEsaxtAtiovAi, ukw amd difumcaot IK TBS uNirxBannr of oxvobd. MABOE, MDCCOLXU. JOHN HKNlT ANB JAMES PABEEB. maaniivlB MM BBaok i m ^•^, '^^ r; ! ( NOTES ON SOME QUESTIONS SUGGESTED BY THE CASE OF THE "TRENT." BY MOUNTAGUE BEKNAED,B.C.L., CHICHEIiE PROFESSOR OF INTERNATIOHAL LAW AND DIFIiOMACY IN THE UNIVERSITY OP OXFORD. MARCH, MBCCCLXII. (©xfor^l and London : JOHN HENRY and JAMES PARKER. w 1 1 IlIESE NoteSy the jpullication of which has been delayed by illness and other causes^ are not intended as a discus- sion of the question of the ^^Trentj'^ which has been disposed of argumentatively as well as practically. Had they been so, much would have been added and much omitted. They are meant to contribute, however slightly, to the elucidation of some points in that discussion which were handled, as it appeared to me, on both sides with a somewhat uncertain touch. Ik u '/, ) the enemy, and that the despatches should be on board with the knowledge of the owner or master, or under circum- stances which would have led one of them to that know- ledge if due enquiry had been made. A despatch is " any official communication from an official person on the public affairs of his government." Here, on the one hand, it is not material whether the despatch does or does not relate to military operations ; it may have no reference to them whatever. For it is impossible to draw a line; the contents of a sealed letter must al- ways be presumed to be unknown to the carrier; and to permit the conveyance of such as were found, when opened, to be harmless, would destroy the prohibition altogether. On the other hand, the knowledge or con- structive knowledge of the owner or his agent is an essential point in these cases; for that a letter is of- ficial is a fact which may be known, and to inflict the penalty of confiscation where that circumstance was 30 clearly shewn to be absent, would be a gross and in- tolerable hardship. And it is only as bearing upon this point, that it is important to enquire what was the ship's port of departure, or even what was her port of desti- nation. " Where the commencement of the voyage is in a neutral country, and it is to terminate in a neutral port, or at a port to which, though not neutral, an open trade is allowed, in such a case there is less to excite his vi- gilance, and therefore it may he proper to make some allowance for any imposition that may be practised on him*." He is to have the benefit of a probability of ignorance, and to be relieved from the burden of proving it. But if knowledge be proved against him, the fact that he was sailing from or to a neutral port, or even from one neutral port to another, will afiFord him no pro- tection. This is plain, not only from Lord Stowell's language in the passage . above quoted, but from the whole course of his decisions on this subject. In four cases out of seven, the ship was sailing to a neutral port. In three of these, the " Constantia ^^ the "Susan*," the "Hope^" she was condemned; in the fourth, the "Madison"," the captor's expenses were given. In a fifth, the " Rapid*," she was bound from a neutral port to Tonningen, a port open to trade. The " Atalanta" (condemned) was on her way from the Isle of France to Bremen^ and the " Caroline"" (released) from New York to Bordeaux. In all these cases the letters were to be delivered to some one at the port of destination, except in one, the " Hope," where they were in a passenger's trunk. In not one of them was either the port of departure or that of destination treated as anything more than a circumstance from which an T t The " Rapid," Mw. 228. " 6 Boh. 461. ' lb. 463. • Edw. 224. " lb. 228. " 6 Rob. 440. ■■ lb. 461. 31 r s 1 . excusable ignorance on the part of the master might be presumed. In every one of the seven, in which the ship was not condemned, the captor was decreed his expenses, which is tantamount to a decision that the capture was not without probable cause, and not unlawful. So erroneous — if Lord Stowell was not deliberately and persistently wrong — is the position (borrowed probably from Hautefeuille and De Martens) which has been so confidently asserted of late, that a neutral ship ought always to be permitted to pursue her voyage without further molestation, as soon as it is ascertained that she is sailing to a neutral port ; on the contrary, it is established law, so far as the repeated and careful decisions of this great judge can make it, that this is no protection, if there be reasonable suspicion that the ship is carrying despatches^. This is a feature of the distinction which it is important to observe between the case of despatches and that of munitions of war. It is well settled that munitions of war consigned to a neutral port are not contraband, and that "a possible ultimate destination" to a hostile country will not make them so. The reason is plain. The transaction, on the face of it, is innocent. The transit of the goods will be over when they are in the hands of the consignee, and it is not the carrier's busi- ^ M. Hautefeuille observes on these cases : — *' L'avis de Sir "W. Scott ne saurait avoir aucun poids a mea yeux. Organe official de I'Arairaute Anglaise, il a du soutenir les doctrines de son pays : il les a revetues de tout le prestige de sa science et de son talent. Mais si on adoptait son syst^me, toute correspondance deviendrait impossible en temps de guerre entre lea neutres et les belligerants, et meme tres difficile entre les nation^ restees spec- tatricea loyales de la lutte, si ce n'est par I'intermediaire du belli- gerant le plua puissant sur mer." — Droits et Devoirs des Nations Neutres^ ii. 187. H 32 ness to enquire what the consignee will do with them when he has got them. To pursue them afterwards through successive hands, to speculate on the intentions of successive owners or consignees, and to fasten by anticipation on a lawful enterprise the guilt of an un- lawful one, undertaken after the first was at an end, would not only open the door to endless enquiries, but involve intolerable injustice. The only real destination of a despatch is its ultimate destination. Till it reaches the hands of the person to whom it is addressed, it is on its travels ; when it arrives there, and not till then, it is, as lawyers say, at home. All who lend their services to forward it on its journey, are engaged as accessories or intermediaries in assisting its transit to that final destination, as is the friend who obliges you by taking to Paris the packet which another friend is to convey to Rome. At what particular stage that assistance is given, from whom each carrier takes the letter, or to whom he delivers it, are matters abso- lutely immaterial, provided he knows what he is doing. This is a transaction which, instead of being innocent on the face of it, is unlawful on the face of it. The master of the ship is acting, and knows that he is acting, as a courier for the enemy, and he must take the conse- quences. The ground of condemnation m these cases is not the having a noxious article on board, — which indeed, per se, never is a ground for condemnation, — but the nature of the service performed. If we compare the conveyance of military persons to that of munitions of war on the one hand, and of de- spatches on the other, we see at once that it is not exactly analogous to either of them. The goods are consigned, the letter is addressed, to the persons for whom they are respectively intended ; but the traveller I t I at docs not come on board ticketed with his final destina- tion. That his journey is not ended till he gets there, is as clear in his case as it is in t' at of the despatch ; an officer going to India is only forwarded towards that ultimate goal by the railway which carries him to Mar- seilles. His character, and the place to which he is proceeding, may be wholly unknown to the ca[)tain, as well as to the owner of the ship, and it may be justly said that these are matters into which they are not called upon to enquire. They may, on the other hand, be per- fectly notorious. We have seen that in the case of per- sons, as in that of despatches, the true ground of con- demnation is the nature of the service, and I think it a just inference from Lord Stowell's decisions, and the principles they involve, that where the conveyance of persons is the alleged offence, and even where the ship is not proved to have been specially chartered for the purpose, her destination is but one element in determin- ing the question, whether she is serving the enemy or no. It is an element, however, of such importance that it would probably be quite conclusive in by far the larger proportion of cases ®. I suggest, on the whole, the following general con- clusions, some of them with more or less of doubt. ' This is not inconsistent with the case of the " Hendric and Alida," decided by Sir George Hay, (Marriott's JB., 96). This Dutch ship was carrying to St. Eustatius, a Dutch island, a cargo consigned to Dutch merchants, part of which consisted of arms and powder, and also five persons going to serve in the army of the revolted American colonies, though it does not appear that they had their commissions on board. Tiie character of the passengers does not seem to have been much insisted on in the argument, and is only referred to in the judgment (which is very meagrely reported) as bearing on the question of costs. There was some evidence that the ship was to go on to New England. 34 1. A ship conveying persons in the enemy's employ- ment, military or civil, is only liable to condemiiation if the Court is of opinion, on a consideration of all the circumstances, that she is serving the enemy as a trans- port, and so as to assist (substantially, though not per- haps directly,) his military operations. 2. It is not necessary to prove an actual hiring of the ship by the enemy. 3. Where a hiring for such a purpose is proved, the number and importance of the persons conveyed, and the knowledge or ignorance of the owner or master, are immaterial. 4. Where a hiring is not shewn, it is necessary to prove that the service performed was in fact such as is rendered by a transport, (as to which the number and importance of the persons conveyed, as well as their character and destination, are material,) and generally perhaps to shew a mens rea. 5. The destination of the sMp is in both cases import- ant, in the second much more material than in the first, but in neither absolutely conclusive. 6. It is not lawful to take persons, whatever their character, as prisoners, out of a ship which has not been proved, or admitted, to have forfeited the privileges of neutrality ^ T ' What if the persons be voluntarily given up, \Fitliout an appeal to a prize-court ? In such a case the neutral Government has no ground of complaint against the belligerent. For the appeal to a prize-court exists only for the protection of the private interests of the owners of tjie ship and cargo. As to the honour of the neutral flag, that is in the keeping of the neutral Govern- ment ; as to the persons on board, the sentence can only affect them indirectly and incidentally, by establishing the fact that the ship has forfeited its neutral character. If that faot bo admitted, and the captor waives his claim to confiscation, there is no quc3» 35 If these views are correct, how great, it may be said, and how obscure, are the risks and uncertainties which surround the neutral ship-owner! His vessel is not. secure from detention, nay, from condemnation, even when sailing on her accustomed line, even when bound for a neutral port. And he is liable to have his property confiscated, not upon plain grounds which he can easily understand and can be prepared beforehand to disprove, but on the opinion which a judge sitting in the captor's country mcy form, respecting so indefinite a thing as the general character of a transaction, from a mass of tion for a prize-court to decide : parties between whom there is notbiug in dispute cannot be forced to litigate a matter on which they are agreed, for the sake of an incidental effect which may flow from the sentence. And the waiver cannot deprive tlio belligerent Government of its right to retain the prisoners. For the same reasons, the Government to which the captured persona belonged would have no complaint against the neutral Govern- ment on account of the conduct of the neutral master. It might indeed be possible for the neutral Government to prohibit by law its own subjects from such surrenders, and to take care, through its own consular agents, tliat the case should be properly argued when it came before tlie prize-court. But we have no such law; nor does it appear that a neutral state undertakes any such obli- gation towards the foreigners who become passengers under its flag. It should be added, however, that as the belligerent's right to take the prisoners rests on the assumed violation of neutrality by tlie neutral ship, the neutral Government is perfectly free to take its own view of the facts, and to reclaim the prisoners (if it thinks fit) on the ground that there was no such violation. And, neglecting to do so in a clear case, it would lay itself open to tho complaints of the Government to which the prisoners belonged. The elTect, therefore, of the question not being submitted to a prize-court simply is, that the same question remains open for discussion botwccn the neutral and belligerent Governments. But tho mere fact of the prisoners being taken without adju- dication does not appear to bo a ground of complaint. > 1 3G » t circumstances capable of being regarded in the most various lights. V I admit it. The risks and the uncertainty are great — though not perhaps quite so great as they may seem. The principle is not too vague to be grasped ; nor so loose but that it may be fairly and justly applied ; and an arbitrary and oppressive exercise of the belligerent right would speedily provoke the resentment and bring down on the offender the just hostility of neutral powers. There are obvious presumptions which help to define what exertions of the right ought to be deemed arbi- trary and oppressive ; in what cases it is so plainly im- probable that the ship will be condemned, that it is a wanton injury to carry her into port, or even to detain her, after ascertaining her name and destination. The presumption, noticed by Lawrence and Hautefeuille, in favour of a regular mail-packet, is one of these : indeed, as regards the contents of the mail-bags in. an English packet, which does not carry a pendant, the responsibility ought probably to be held to rest with the Government which has the control of the postal service, and has an officer on board in charge of the mails ; as to the passen- gers and goods conveyed, and papers not put into the bags, I do not see how such a ship can be held exempt from search, notwithstanding the presumption, in a case of reasonable suspicion, unless the Government under whose fiag she sails will undertake the same general responsibility which it acknowledges for the acts of a man-of-war. Presumptions of this nature will neces- sarily gain in number and precision by lapse of time, and will be fortified by the daily increasing strength of neutral trade. These uncertainties cannot be dispelled by broad and loose assertions of such a " principle" as that every ship i I I 37 is a part of the territory of the state whose flag she bears; which is indeed no principle at all, but a metaphor; iisefal, like other metaphors, as presenting a certain amount of truth in a lively and popular form, but, like them, unfit to be made the basis of an argument. The way to test it is to substitute for the metaphor the truth which it represents. To say that an English ship is English territory, is just as true as to say that an Eng- lishman's house is his castle. An Englishman's house is inaccessible, to a certain extent, to the officers of the law ; it may not be forcibly entered for the purpose of executing a civil process ; and so far it is like a castle. An English ship is a floating habitation under the pro- tection of the English Crown, and subject, with all who are on board, to the municipal law of England, and to no municipal law besides ; and to that extent it is like English territory. But the considerations that apply to the soil of these islands, fixed for ever where nature has built their cliffs out of the sea, and over every square yard of which the laws and government of England may constantly exert their empire and control, have but a limited and imperfect application to a wooden vehicle •vhich wanders over the surface of the globe, visiting one foreign port after another, private property itself, and ij! IP icipated, except in law, from all public authority. Hence it has been justly laid down by the French writer whose authority stands highest in these matters^, that international rights, such as those of a belligerent, may be exercised over a foreign private ship on the high seas, but that municipal rights may not ; that the flag is a protection against the latter, and is not a protection against the former. English lawyers have uniformly maintained the same opinion. It flows, indeed, directly 8 Ortolan, Diplomatie de la Mcr, ii. 74. 1 1 38 and inevitably from the admission of the right of visit and search. This brings us back again to the point from which we set out. A neutral ship is as inviohible as neutral ground, except as against the exercise of belligerent rights. Granted ; but what are these belli- gerent rights ? That is the very question under dis- cussion. If the neutral has some reason to complain, so also perhaps has the belligerent, who appears to be debarred in some cases from exercising the right of self-defence, unless where justice per. '!s him to inflict a penalty. It can hardly be denied, w ver may be thought of the views here expressed, that some confusion between these two perfectly distinct things has found its way into the law; nor is it difficult to see how this has happened. The right which a belligerent has against a neutral is that of preventing the neutral from doing him an injury — a right which is not judicial; but it has come to be exercised through the agency of courts of justice, which act judicially and govern themselves by judicial principles. Out of that right their jurisdiction springs, and to regulate its exercise is their proper duty ; yet while the belligerent is entitled to regard nothing but the wrong, the judge is bound to take into account the knowledge and intentions of the wrong- doer. Their power has consolidated itself by degrees, riveted by degrees its wholesome and beneficent re- straints, possessed itself gradually of the whole field, and given a strong forensic colour to this part of inter- national law. It has become settled by degrees that, until confirmed by them, no seizure, whether of ship or goods, is valid against a neutral ; and an appeal to them on all questions arising out of maritime captures has be- come his great security against violence and injustice. ' ! 39 i 11, But they decide only on questions of property, nr*; on the status or condition of persons. And thus, while an Admiralty judge can permit you to take out of a large assorted cargo a single bale of sail-cloth as contraband, — even giving freight, out of the rest of the cargo, to the neutral ship-owner whose offence was so small, — he cannot authorize you to take the person of a hostile general who may be on board unknown and in dis- guise, except by decreeing the confiscation of the ship. If you take him, you do it, at least, without the sanc- tion either of a legal sentence or of an acknowledged rule. Such a state of things must inevitably breed some uncertainties, some anomalies, some occasional straining of legal principles. But it is easier to find fault with the law than to mend it ; and easier perhaps to shew that it has anomalies than that it works sub- stantial injustice. There are inconveniences, unquestion- ably, in holding that a naval officer, even with Vattel and Wheaton on his cabin shelves, cannot take prisoners out of a neutral ship without seizing the ship. But there are inconveniences also in permitting him to do so. We have lately been spectators of such a proceeding — the modus operandi — and the consequences. It is an ex- cellent thing, no doubt, to fortify the rights of neutral commerce, in which all the world is interested ; but the subject requires careful handling, and I hope we shall agree, whilst at peace, to no changes which we cannot trust ourselves to stand by when again in our turn sur- rounded by the provocations and temptations of war. "printcb bj) gtcssts. ^urlwr, CornmiTrlut, (Dxfori>.