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NOTES

SOME QUESTIONS SUOGESTED BY
THE CASE OF THE " TEENT."

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

BBaok

^•^,

'^^

! (

NOTES

SOME QUESTIONS SUGGESTED BY
THE CASE OF THE "TRENT."

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.

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.

'/,

<k-'

" , !J

NOTES, &c.

" Ceetain individuals have been forcibly taken from on board
a British vessel, the ship of a neutral Power, while such vessel
was pursuing a lawful and innocent voyage — an act of violence
which was an affront to the British flag and a violation of inter-
national law." — Harl BusselVs Despatch, to Lord Lyons, Nov. 30,
1861.

"nOES international law, under any circumstances,
permit a belligerent to seize the persons of enemies
found on board of a neutral ship ? If so, under what
circumstances ?

There are three classes of cases in which this question
may arise. The ship may have been brought into port
and condemned by a competent prize-court; she may
have been brought into port and not condemned; or
she may not have been brought into port at all.

In the first case the persons are lawfully in the hands,
and at the disposal, of the belligerent Power. The ship
in which they were has been condemned jure belli, as
having clothed herself, by her employment or by the
acts of her owners, with the character of an enemy's
ship, and forfeited the protection of the neutral flag.
The neutral Power, therefore, to which she originally
belonged, can have no right to reclaim them. It does
not appear to be necessary that the presence of the per-
sons on board should have formed the ground of con-
demnation. But it may be useful, in order to present

B 2

something like a general view of the question, to con-
sider this branch of it separately.

In the second case the ship retains her neutral cha-
racter, never having been stripped of it by the judgment *
of a competent tribunal. She may, or she may not,
have been lawfully captured — captured, that is to say,
upon reasonable grounds of suspicion, which, according
to the practice of these courts, not only protect the
captor from any claim for damages, but entitle him, as
against her owners, to payment of the costs and ex-
penses he has incurred in bringing her in for adjudica-
tion. But although she may have exposed herself to
these disagreeable consequences, she has never ceased
to be a neutral ship ; and she is as much a neutral ship
whilst lying in the belligerent port as she was before
her capture, or as she will be after her release. In the
eye of the law, therefore, there is no real distinction
between the second case and the third. She has been
either brought in unlawfully, or brought in for a pur-
pose which will be exhausted when the judicial investi-
gation is ended and the captor's expenses paid. And,
when that is done, the belligerent government will
have acquired by the temporary possession no rights
over those who were on board of her which it could
not have exercised when she was on the high seas.

I propose, therefore, to consider shortly these two
questions : —

Does the law of natioiis, under any and what cir-
cumstances, permit a belligerent to seize the persons of
enemies on board a neutral ship whilst on the high
seas ?

Under what circumstances is the presence of enemies
on board of a neutral vessel a ground for the condemna-
tion of the ship ?

«•

*l-

I. Does the Law of Natiom, under any and what circumstances,
permit a belligerent to seize the jiersons of enetnies on board of
a neutral ship whilst on the high seas ?

Maritime international law is collected ordinarily
from the following sources : — Ancient compilations of
maritime usages ; the works of approved text-writers ;
adjudications of prize-courts ; ordinances, proclamations,
and instructions issued by particular governments for
the guidance of their own judges or officers ; published
opinions of official jurists; treaties and conventions.
General history is of use as a commentary, and legal
analogy both as a subsidiary source of law when these
materials fail, and as an instrument for turning them
to account.

No compilation of usages, old or new, no text-writer,
no reported case, no ordinance or public act of any
single Power, no published official opinion, lends, as
far as I am aware, any sanction to the notion that the
persons of enemies may be forcibly taken out of a
neutral vessel on the high seas. They are wholly silent
on the subject.

This mass of negative evidence is made up of dif-
ferent items, having different degrees of weight. The
force due to the silence of a particular authority on a
particular subject depends on two things ; the value of
the authority, and the probability of its speaking on
one side or on the other — the second point being the
most material of the two. For it signifies nothing how
grave an authority may be if we have no reason to ex-
pect that it will have anything to say on the matter
in hand.

Hence it signifies little that the supposed right is
sanctioned by no reported case, because it is hardly pos-

sible to imagine a corobination of circumstances which
could render it, even indirectly, the subject of a judicial
decision. Neither will the absence of aU reference to it
in the Conmlato del Mare and other like compilations
appear important to any one who considers their scope
and structure. But the silence of marine Ordinances is
important, although, as affirmative evidence, they are of
no great value ; the assertion of the rigl»t in one such
Ordinance, or in several, would not prove that it existed ;
but, if it did exist, it would be pretty sure to be asserted
in some of them. We might have expected also to
find some notice of it in the works of those text-writers
who have explained and defined the belligerent right of
visit and search. Taking the whole mass together, the
presumption is strong that, as <^hey afford no proof of the
right having been ever exercised, it never existed at all.

Leg*" • ; nalogy, it is true, has something to say on the
other side. Tlie law has always permitted the property
of enemies to be captured on board of a neutral ship
— then why not their persons? But before you can
apply the principle, you must ask what it is. On what
principle may enemies* goods be seized under a neutral
flag? Modern writers, following Bynkershoek, have
generally founded this right upon that of visit and
search. It is lawful for you to stop and search the
neutral ship — if for nothing else, for articles contraband
of war : being there, you have a right to take the property
of your enemy, — which is, as it were, under your hand,
— and the neutral carrier is not injured by your doing so,
because you must pay him the freight which he would
have earned had he conveyed his cargo to its destination.
By English writers the analogy has frequently been used
to justify the search for seamen in neutral merchant-

•1^

»s

ships * ; and it must be admitted, I think, that if this

use of it be correct, it might be applied, a foriiori, to
the question now under consideration. For it is more
legitimate to argue from the seizure of enemies' goods
and contraband to that of enemies* persons, which would
be a right of the same kind, than to the seizure of de-
serters or seamen, which would be a right of a different
kind, and a mere enforcement of municipal law. But
the analogy is, in truth, of little value for either purpose.
Bynkershoek's explanation of the right to take enemies*
goods is not very satisfactory, since the neutral carrier

^ Thus a writer in the Edinhurgh Review, xi. 22 : — " There
■ seems to be no good reason for excepting the case of deserters
from this riglit, [the right of search]. If the crew belonging to an
English man-of-war escape on board of American merchantmen,
it is difficult to discover why they should not be pursued there,
and brought back by their lawful commanders. It is preposterous
to call each merchant-ship a portion of the territory of the State,
because the jurisdiction of the State extends to the persons on
board of it. The same jurisdiction extencs to the subjects of the
State, though by any accident they should be swimming at a dis-
tance from the vessel. An Englishman who should commit mur-
der in this situation on the high seas would be tried at the Ad-
miralty sessions ; and yet he was on no part of the English ter-
ritory. An English vessel, too, in a foreign port is held to be
foreign territory. If, then, deserters are pursued into a merchant-
ship on the high seas, they are only pursued on common ground ;
and no violation of territory takes place, any more than if they
were picked up swimming at sea in their attempt to escape."

Can we wonder that Americans should ask, "If deserters,
why not rebels?" But the English reasoning was wrong in two
material points : — 1 . English law governs the persons on board of
an English merchant-ship on the higii seas, not only rafione per-
sonarum, but ratione loci; 2. The reviewer confounds a lelli-
gerent right, permitted by international law to be exercised over
a neua'al ship, with the claim to enforce English municipal law
on board a foreign ship, which international law no more allows
in time of war than in uime of peace.

is certainly the worse for the transaction, even though
he receives his freight. This right, which was incorpo-
rated very early into the maritime law of Europe, appears
originally to have sprung from the notion, that to trans-
port goods for the enemy was an unfriendly act on the
part of the neutral, though not of so aggravated a com-
plexion as the supplying him with contraband''. But there
is nothing to shew that the conveyance per se of persons
being subjects or citizens of the co-belligerent State was
regarded in the same light, or exposed the vessel carry-
ing them to any inconvenient consequences. And the
truth is, that this is a point on which Analogy would
practically be refused a hearing, had she never so much
to say. Her testimony is not required if the right has
been exercised, and is inadmissible, if it has not, against
the negative usage of centuries -, and I have touched
upon this argument only because it may be thought
to have a place in a comprehensive discussion of the
subject,

I have said nothing, as yet, of treaties and conven-
tions. Whilst the other authorities with which they are
usually classed are silent on this question, they are not
so. In many treaties, ranging from the second half of
the seventeenth to the first half of the present century,
it is »ixpressly provided that neither of the contracting
parties (being at war) shall take persons out of the ships
of the other party (being neutral), unless they be soldiers
in the actual service of the enemy. A cursory review of
the history of this stipulation will enable us to judge of
its legal effect and of the inferences which may reason-
ably be drawn from it.

It dates, I believe, from the time of the Congress of

' ^ This appears very clearly from the earlier treaties on the
subject, especially throughout the fifteeuth century.

Niraeguen, and was originally 'invented by the Dutch.
I find it for the first time in a treaty of navigation and
commerce between the United Provinces and Sweden,
concluded at Stockholm on the 26th of November, 1675,
where it appears as follows : —

" Bona sive Merx qusecunque pertinens ad subditos alterutrius,
etiara ilia quam ex superiorum Paragraplioruin auctoritate per-
missam ac neutiquam prohibitam esse coiistabit, in Navibus ini-
micis forte deprehensa in praedarn occupanti cedatj ac Fisco
addicatur, ulla sine exceptioue; e contra, tutum omnino et im-
mune a Fisco habeatur quicquid Navigiis ad alterutrius subditos
pertinentibus concredetur, utcunque sit Partis alterutrius inimi-
corum, excepta solumraodo Merce Contraband^ ad Portum lios-
tilem destinata, adversus quam procedatur per modes jam supra
designatos; sed et vectores quoscunque, qnamvls subditos inimi-
cos Partis alterutrius, iutos navigare coavemet, diim devehuntur
aliqud in navi ad subditos alterutrius pertinente, nee eos inde
avelli aut auferri licebit, excej)tis tantum Ducibus sive Offici-
alibus hostilibus **."

It next appears in a somewhat different form in the
treaty of commerce between the United Provinces and
France, made at Nimeguen on the 10th of August,
1678.

This is one of the earliest in the series of treaties by
which the burgher-statesmen of the Low Countries
laboured with steady perseverance to secure immunity
in time of war for the extensive carrying- trade which
formed the chief employment of their commercial marine,
and the great source of their prosperity. As early as
1646, at a time when it was an object of primary im-
portance with the French Government to retain by sub-
sidies and concessions the alliance of the States-General,
and to prevent them from making (as they eventually

* Dumont, Corps Diplomatique, vii. i. 316.

did) a separate peace with Spain, France had agreed, for
a period of four years only, and '*en attendant qu' on fait
un bon re^lement" to exempt the Dutch from the opera-
tion of the Ordonnance of 1584, which subjected to
confiscation the goods of a friend found in the ship of an
enemy. In 1662, as a part of the price of the Alliance
of Paris, by which Louis XIV. hoped to further his de-
signs upon the Spanish monarchy, they succeeded in
obtaining a more explicit and effectual engagement,
which forms Art. xxxv. of the treaty of the 17th of
April, 1662:—

" II a ete en outre accorde et convenu que tout ce qui se trou-
vera charge par les sujets de Sa Majeste en un navire des ennemis
desdits Seigneurs Etats, bien que ce ne fAt marchandise de con-
trebande, sera confisque avec tout ce qui se trouvera audit navire
sans exception ni reserve; mais d'ailleurs aussi sera libre et
affranchi tout ce qui se trouvera dans les navires appartenant aux
sujets duRoiTres Chretien, encore que la charge ou partie d'icelle
fiit aux ennemis desdits Seigneurs Etats, sauf les inarchandises de
contrebande ^"

During the negotiations of Nimeguen, the Dutch did
not neglect their usual policy of coupling with a treaty
of peace a treaty of navigation and commerce. They
proposed, therefore, as a part of their bargaiiij a renewal
of the arrangements of 1662 ; but judging, as it ap-
pears, that these engagements were not in all respects
so stringent and precise as was desirable, they submitted
to the French negotiators a revised and corrected draft of
several of the articles, and, amongst others, of Art. xxxv.,
which in its new shape was to run as follows : —

"II a et^ en outre accorde et convenu, que tout ce qui se
trouvera charge par les sujets de Sa Majeste en un navire dcs

** D'Hauterive et de Cussy, Becueil iles Traitis, ii. 270.

ennemis desdits Seigneurs Etats, bien que C3 ne Mt marcliandisea
de coutrebande, sera confisque, avec tout ce qui se trouvera audit
navire, sans exception ni reserve ; mais d'ailleurs aussi sera libre
et affranchi tout ce qui sera et se trouvera dans les navires apparte-
nant aux sujets du Roi Tres Chretien, encore que la charge ou
partie d'icelle fClt aux ennemis desdits Seigneurs Etats, sauf les
marchandises de coutrebande, au regard desquelles on se reglera,
selon ce qui a ^te dispose aux articles precedens. Et pour .
eclaircissement plus particulier de cet article, 11 est accorde et
convenu de plus, que les cas arrivant que toutes les deux Parties,
ou bien Tune d'icelles, fussent engagees en guerre, les biens ap-
partenant aux sujets de Fautre Partie, et charges dans les navires
de ceux qui sont devenus ennemis de toutes les deux, ou de I'uue
des Parties, ne pourront etre confisques aucunement, h, raison ou
sous pretexte de cet embarqueraent dans le navire ennemi ; et cela
s'observera non-seulement quand lesdites denr^es y auront et^
cliargees devant la declaration de la guerre ; mais meme quand
cela sera fait apres ladite declaratioii, pourvu que 9'ait ete dans
les temps et les termes qui s'ensuivent ; h. savoir, si elles ont ei&
cliargees dans la mer Baltique, ou dans celle du Nord, depuis
Terneuse en Norwege jusqu'au bout de la Manche dans I'espace
de quatre semaines, ou du bout de ladite Manche jusqu'au cap de
Saint-Vincent dans I'espace de six semaines, et de la dans la mer
Mediterran^e et jusqu'a la ligne, dans I'espace de dix semaines j
et au-dela de la ligne, et en tons les autres endroits du monde,
dans I'espace de huit mois, a compter depuis la publication de la
presente. Tellement que les marchandises et biens des sujets et
habitans charges en ces navires ennemis, ne pourront etre con-
fisques aucunement durant les termes et dans les etendues sus-
nommes, a raison du navire qui est ennemi, mais seront restitues
aux proprietaires sans aucun delai, si ce n'est qu'ils aient ete
charges apres I'expiration desdits termes. Et pourtant il ne sera
nullement permis de transporter vers les ports ennemis telles
marchandises de contrebande, que Ton pourrait trouver chargeos
en un tel navire ennemi, quoiqu'elles fussent rendues par la sus-
dite raison. Et comme il a eta regU cl-dess?(s qu'tm navire libre
affrancJura les denrees y cliargees, il a ete en outre accorde et
convenu, qne cette liberie s'etendra aussi aux personnes qui se
trouverout en un navire libre ; a tel effet que qiioiqtt^lles fussent

ennemies de Vnne et de V autre des Parties, ou de Vtme d'icelles,
pourtant se trouvant dans le navire Hire, nen pourront elre tirees,
si ce n'est quails fussent gens de guerre, et effectivement en service
desdits ennemis^"

And the article in this form was inserted in the treaty,
(Art. xxii/) It is copied in the Dutch and Swedish
Treaty of 1679, (Art. xxii.«), and in the commercial
treaty of Ryswick between France and the United Pro-
vinces, Sept. 20, 1697, Art. xxvii."* And it was re-
inserted, after undergoing a further revision, in the treaty
of Utrecht, between the same Powers, April 11, 1713,
Art. xxvi.'

The clause had by this time been adopted by France,
which had learnt that it was her interest to secure, as
against England at least, the immunities of neutral
trade ; and it forms Art. xvii. of the commercial treaty
concluded on the same day and at the same place be-
tween England and France ''. But it was not inserted

■ Actes et Memoires et Negociations de la Paia de Nimegue,
ii. 154. Art. xxvi. of the treaty of 1662 was at the same time
enlarged, so as to permit trade between one port of the enemy
and another.

' lb. 600.

» Dumont, Corps Bipl., vii. i. 366.

" Dumont, ib. 440.

' Dumont, vii. ii. 380.

^ "Et comme . . . . de meme il a ete convenu que cette merae
liberte doit s'etendre aussi aux personnea qui naviguent sur un
vaisseau libre, de maniere que, quoiqu'elles soient ennemis des
deux parties ou de Tune d'elles, elles ne seront point tirees du
vaisseau libre si ce n'est que ce fussent des gens de guerre ac-
tuellement au service desdits ennemis." — B' Hauterive et de Cussg,
ii. 91. It is suggested in a recent article in the Edinburgh
Beview (ccxxxiii. 271) that this clause was intended to protect
Euglish subjects in French vessels from impressment, which seems
hardly compatible with either its form or its history.

in the treaty of the same year between England and
Spain. The article of the Anglo-French treaty of
Utrecht is copied in the commercial treaty of 1739
between France and the United Provinces; and, in a
treaty concluded in 1769 between France and the town
of Hamburg, it makes its appearance in this form : —

'' S'il se trouve dans un navire de la ville de Hambourg des
passagers d'uns nation ennemie de la France, ils ne pourront en
etre enlev^s, k moins qu'ils ne soient gens de guerre actuelleraent
au service des ennemis, auqitel cas ils seront fails prisonniers de
guerre ^"

When the United States of North America, in the
midst of their struggle for independence, concluded
a treaty of commerce with France, the arrangements
of Utrecht were naturally adopted as the basis of nego-
tiation, and the article recited above, with five which
follow it, is transcribed in the treaty of 1778.

The concluding sentences of that article (relating to
persons) re-appear again in the following commercial
treaties subsequently made by the United States — w itii
the Dutch United Provinces, Oct. 8, 1782 ; with Sweden,
April 3, 1783, (revived, as to this clause, Sept. 4, 1816) ;
with Prussia, July and Aug. 1785 ; with Spain, Oct.
27, 1795, (confirmed Feb. 22, 1819); with Columbia,
Oct. 1824 ; with Central America, Dec. 1825 '".

It occurs also in Mr. Pitt's commercial treaty wilh
France, Sept. 26, 1786, with a not unimportant ad-
dition : —

" Si ce n*est que ce fussent des gens de guerre actuellement au
service desdits ennemis, et se Iransporlanl pour elre employes
comme mililaires dans leurfiotles ou dans leurs armies °."

' jy Hauterive et de Cussi/, iii. 445.

•" See Elliot" s Diplomatic Code of the United States.

" D' Hauterive et de Cussy, ii. 104.

And it is found, without this last addition, in treaties
concluded by Denmark with Genoa (1789) and Prussia
(1818).

It may now be asked —

What inferences, if any, respecting the general prac-
tice of nations, may be fairly drawn from these facts ?
Is it reasonable, for instance, to infer that, in the opi-
nion of the various statesmen who concluded this long
series of treaties, the freedom of a free ship would not,
in the absence of an express provision, have extended
to the persons on board of it, not being soldiers on ser-
vice, and that such persons might lawfully have been
taken from undei* a neutral flag — or at least that there
was a doubt on the subject, which it would be prudent
to remove ? This question concerns Powers which, like
Great Britain, are not now bound by any stipulations
of this kind, as well as Powers which are.

What is their legal effect as between the contracting
parties ? Do they permit a belligerent to take soldiers
out of a neutral ship without carrying in the ship for
condemnation — or to take them in cases where the ship
would clearly not be condemned if she were brought in ?

The second of these questions concerns the contracting
parties only ; and we need not therefore consider it, ex-
cept so far as it mixes itself with the first °.

It is a general, but not a strong, presumption, that
an express stipulation in a contract derogates from or
modifies in some way the legal rights which the parties

° It would of course have been open to the Government of the
United States to answer M. Thouvenel's despatch, in which the
treaties between the States and France were insisted on, by saying
that those treaties furnished a rule only as between the Powers
which were parties to them, and not therefore as between the
United States and England.

would have had if it had not been inserted. For people
do not commonly think it necessary to bind themselves
expressly not to do what the law forbids, or to do what
it enjoins. It is not a strong presumption, especially as
applied to treaties of friendship and commerce, which
always contain some surplusage ; but it is a presump-
tion, and, where it does not hold, this is frequently ap-
parent from the form of the article and from H; place in
the treaty. The stipulation in quest "^n )j part of an
article creating exceptional privileges, surrounding neu-
tral ships with a peculiar immunity which they did not
legally enjoy. It provides that free ships shall make
free goods : and then it goes on to declare that the
persons on board of them (a particular class excepted)
shall be free likewise. If this stipulation had appeared
for the first time in the nineteenth century, we should
certainly have inferred that in the nineteenth century
it was at least doubtful whether subjects of the enemy,
although not soldiers in his service, might not lawfully
be seized in a neutral ship. But this inference, as ap-
plied to the nineteenth century, vanishes almost into
nothing when we find that the clause is nearly two
hundred years old, and that it has been substantially re-
peated during that period in one treaty after another,
with such alterations only as might serve to round off
and improve the sentence. Every one of the numerous
and intricate clauses now inserted in an English deed of
conveyance probably had its use when it was invented ;
it served to obviate some doubt which actually existed,
or it provided against some probable riskj but they
have in many instances been retained, expanded, and
elaborated by the anxious caution and patient industry
of conveyancers, though the doubt has long expired and
the risk ceased to be any risk at all. It would be per-

fectly reasonable to assume that the exercise of the belli-
gerent right of capture did really require to be guarded
and restrained by stipulations of this nature in the latter
half of the seventeenth century ; nor would it be difficult
to find in the history of that period evidence that the
practice of maritime warfare .was, as compared with
later times, very loose and irregular p. The original intro-

p Such complaints as these are not uncommon : — " That the
petitioner [a Swede], sailing with the said ship from Nicoping to
Hamburgh on the third of this month, hee was seized by John
Tresorr, captain of a private man-of-war, with no flag out, who
took two men out of my ship, and pretending himself to be an
Irishman, presently plundered me and my men of all things," <&c.
— Thurloe's State Papers, ii. 182. See also in Thurloe (ii. 503)
a complaint made by a Dutch oflBcer commanding a convoy, that
an English man-of-war had " fetched" out of the ships under
convoy " all the passengers that were on board of them, which,
however, were sent back." And (iv. 553) a letter from St. Se-
bastian, (1656) : — " Here are to the number of fifteen ships in all;
most of them are taken by those pirates lately come hither from
Brest with the Duke of York's commission, though those of this
town have set out near ten small men-of-war upon this King's
commission. The Brest men have brought in here the persons of
five, merchants, which they took out of several Dutch ships they
met at sea ; and they do petition that they may have a prison al-
lowed them to keep such merchants as they take, and set a ransom
on them, which yet is not granted them." In the war of 1674
between England and the Dutch, the presence of Dutchmen on
board of a neutral ship was treated as a ground of condemnation.
Sir Leoline Jenkins, writing on the case of a French ship which
had been brought in for adjudication, declares it to be fatal to the
claim of the owners that she had three Hollanders on board,
(escaped prisoners,) and takes occasion to recommend that some
rule should be laid down explaining how many " unfree persons"
would, under the King's declaration of Feb. 22, 1664, " afiect
a free ship." " In the many ships," he adds, " that were brought
up as they pass to and fro from Spain, Portugal, Flanders, Sweden,
and the Hanse Towns, there is most commonly one of the subjects
of the States deprehended among the ship's company, and yet

•

)

it
It

duction of the clause is tlierefore easily accounted for,
and the re-insertion of it in later treaties does not
appear to me to prove the continued existence of prac-
tices, or even of doubts, of which, as far as I know,
there is no other trace in later history.

But as to the excepted class, soldiers in actual service,
is nothing to be collected from these treaties ? To stipu-
late, in the nineteenth century, that civilians shall not be
taken, may not imply a belief that they lawfully might,
nor even any serious doubt on the subject ; but to ex-
cept soldiers, is to admit that they, at any rate, are
actually liable to seizure, and that they will be so liable
after the conclusion of the treaty. The two .questions
— the construction and effect of the clause, and the in-
ferences to be drawn from it — here run into each other.

Here it is to be observed, that the primary object of

seldom more than one that is discovered. The reason, I suppose,
is, lest a number of them should bring the ship to confiscation."
And he suggests that this practically increased the naval strength
of the Dutch by keeping their seamen at home. {Life and Letters
of Sir Leoline Jenkins, ii. 740.) The Declaration referred to,
vrhich is given in Bishop Kenuet's History, (iii. 272,) contains
the following passage : — " And we hereby do further declare that
whatsoever ship or vessel of what nation soever shall be met
■withal having any goods, merchandises, or any number of persons
in her belonging to the said States of the United Provinces, or any
of their subjects or inhabitants, the whole being taken shall be
adjudged as good and lawful prize. As likew'.ae all goods and
merchandises of what nation soever, whether of our own or of
foreigners, that shall be laden aboard any ship or vessel that shall
belong to the States of the United Provinces, or any of their sub-
jects, or any inhabiting with them, and shall be taken, the whole
shall be condemned as good and lawful prize, except the said ship
or vessel has ours or our dear brother's letters of safe conduct
granted to them." So the French Ordonnance published in 1584
by Henry III. declared all ships " esquels y ait biens, marchan-
dises, ou gens de nos ennemis" to be good prize ; but this is nob
repeated in the Ordonnance of 1681.

the article, on the face of it, is not to extend, but to
restrict, a liberty of capturing goods and persons which
was actually possessed, or which had been or might be
claimed, by belligerents. It was not intended to grant
a new right, but to limit and define a right which either
existed, or might probably have been asserted in the
absence of a special prohibition. The right to take the
persons of soldiers "effectively in the service of the enemy"
is not created de novo ; it is only assumed as existing,
and saved, by way of exception, out of a general pro-
hibition, by which it would have been implicitly swept
away. On the one hand, it is impossible to doubt that
some power to take soldiers in the enemy's service out
of a neutral ship was deemed to exist by those who
framed, and by those who have adopted this clause, and
that they meant to leave it untouched ; on the other, it
is clear that any such power, if shewn to exist, would
satisfy the words of the clause, and that we could not
be called upon to give them a more extensive meaning.

That the conveyance of soldiers to the enemy was in
the seventeenth and eighteenth centuries, as it is in the
nineteenth, deemed a violation of neutrality, it is need-
less to say. In many of the treaties of the seventeenth
century, and in some of the next, militea or ^ens de
guerre are enumerated, with some want of scientific
accuracy, among the objects classed under the general
head of contraband. The insertion of the word seems
to have depended less upon pohcy or design than on
the model which the framer of the treaty happened to
have before him ; the omission of it would not protect
the neutral from the consequences, whatever they might
be, of rendering direct assistance to the enemy. The
same principle would of course apply to a conveyance
of soldiers from one part of the enemy's territory to

11)

another — an act which fulls also within the grasp of
another and a distinct principle. But it never was a
violation of neutrality to carry soldiers away from the
enemy, or to carry them to any destination not within his
territory, and not serviceable to his military operations.
According to the ordinary rules of construction, there-
fore, the exception of soldiers " effectively in the service
of the enemy'* may justly be taken to mean only soldiers
on their way to a hostile destination, or (as it is expressed
in the treaty of 178G) "being transported to be em-
ployed in a military capacity in the enemy's fleets or
armies."

What is the force of the words " enleves ou tires ?'*
Did they confer a right to take the persons out of the
ship without carrying the ship in for condemnation ? I
think, as I have already said, that they did not confcir a
new right of any kind ; nor does it appear to me that any
clear general conclusion can be drawn from them. They
do not say that it shall be lawful in every case to take
soldiers, but that it shall in no case be lawful to take
any persons who are not soldiers. I agree, however,
with M. Hautefeuille*», to this extent a' least, that they
appear to point to some cases in which this could be
done. Soldiers, as we have seen, were frequently classed
in treaties under the head of contraband, sometimes with
the superadded provision that, the contraband article be-
ing given up to the captor, its presence should not infect
the ship, which should be suffered to proceed on her
voyage. I do not think that in the seventeenth century,
when the jurisdiction of Admiralty Courts was less es-
tablished than it now is, any complaint would have been
made if a neutral ship carrying soldiers to the enemy
had been disburdened of her cargo by a hostile cruiser,

' Droits et Devoirs des Nations Neutres, ii. 181, (ed. 1858).

' f

without the fiat of a prize-tribunal condemning the ship.
I leave to the jurists of those couitries which are now
bound by these treaties the question, whether the same
thing could at present be done under their provisions.
But I should certainly decline to accept any general in-
ference drawn from them as to the practice of nations,
or the liberty allowed by international law.

The foregoing considerations appear to me to warrant
the ejeneral conclusion that the Law of Nations does
not, under any circumstance?, permit a belligerent to
seize the persons of enemies on board a neutral ship
on the high seas.

II. Under what circumstances is the presence of enemies on
hoard of a neutral vessel a ground for the condemnation of
the ship ?

The answer to this question will of course be furnished
chiefly by the decisions of prize-courts. These tribunals,
though they are not (strictly speaking) international, ad-
minister international law, and mutually recognise, within
certain limits, the authority of each other. And here we
turn naturally to the judgments of Lord Stowell. Lord
Stowell's judgments are not infallible interpretations of
international law; but he was the greatest Admiralty
judge who ever lived ; he sat in a prize-court whicl: had
more business than all the other prize-courts in the
world put together; and his decisions have been co-
piously reported.

There are two decisions of Lord Stowell's in which
the conveyance of military persons in the enemy's service
was the ground of the condemnation of the ship '. In
both these cases the judge was able to satisfy himself,

' The " Friendship," GSob. Adm. Rep.,A2Q\ the " Orozerabo,"
»J., 430. See also the " Carolina," (Nordquist), »i., 4. 250.

III
e
n

and took pains to shew, that the vessel was not merely
conveying soldiers to the enemy, but was hired by the
enemy's government, through its agent, for the voyage —
that it was hired to convey military persons to the
enemy's country or to one of his colonies.

The points on which the stress of the judgment were
laid were the hiring, and the purpose of the hiring. The
ship was virtually an enemy's transport, sailing under
a neutral flag. But it was not necessary to prove that
the hirer was an agent of the enemy's government, if the
hiring was a hiring for the enemy'? service ; nor to prove
that either master or owner actually knew the nature of
the hiring, at least where the circumstances were such
as to fix either of them with constructive knowledge.

The principle of these cases is distinct from the prin-
ciple on which contraband articles are condemned, either
with or without the vehicle that carries them.

The shipowner, in the latter case, is assisting the
military operations of the enemy ; in the former he has
gone further, and incorporated his ship, for the voyage,
in the enemy's military marine.

It does not appear to be necessary, in such a case, that
the actual destination of the voyage should be hostile
territory. A hostile destination may help to prove the
nature of the employment, but the employment may be
clearly established though there be no hostile destina-
tion. Were England at war with France and mistress
of the Mediterranean, and were a Spanish ship chartered
b} the French Government to carry Marshal Macmahon
and his staff" to some neutral port from whence they
might safely travel to Algeria, I do not think an English
Admiralty Court would feel much difficulty in condemn-
ing her as a French transport. It would make no dif-
ference, of course, whether she sailed from Marseilles,

Barcelona, or Leghorn. In other words, a ship chartered
by the enemy for the conveyance of military porsons
would be liable to condemnation as a transport, whether
her port of clearance, or her pore of destination, or both,
were hostile or neutral, provided her voyage were directly
subservient to the military operations of the enemy.

In the application of this principle two questions may
be expected to arise : —

1 . What is a hiring ?

2. What is meant by " purposes connected with the
military operations of the enemy ?"

It is impossible to lay down a priori rules which will
furnish a solution of these questions. The familiar dis-
tinction between a contract by charter-party and a con-
tract for the conveyance of goods or passengers in a
general ship, would, generally speaking, supply a suffi-
cient answer to the first ; but I am by no means sure
that it would do so in all cases. It is of course not
necessary that the ship should pass, as a vessel let to our
Transport Board has been held to do, into the legal pos-
session of the freighter.

The second question presents greater difficulties,
which are increased by Lord Stowell's now celebrated
dictum in the case of the " Orozenibo." The " Oro-
zenibo" was conveying from Lisbon, ostensibly to Macao,
but really, as it appeared, to Batavia, three Dutch mili-
tary officers and two other persons going to be employed
in civil capacities in the government of Batavia. " Whe-
ther the principle," said Lord Stowell, " would apply to
them (the civilians) alone, I do not feel it necessary to
determine."

" I am not aware of any case in which ilmt qnestioii has been
agitated ; but it appears to me on principle to be but reasonable
that whenever it is of sufficient importance to the enemy that

i I

such persons should be sent out on the public service, at the
public expense, it should afford equal ground of forfeiture against
the vessel that may be let out for a purpose so intimately con-
nected with the hostile operations."

It does not appear that these persons had any con-
nection with hostile operations, except that they were
to be employed in the civil administration of a colony
which might be attacked by Great Britain. The suc-
cess of any military movement, offensive or defensive,
may certainly depend very much on the civil adminis-
tration of the country which is its theatre or its base ;
but if we are to say that this intimately connects the
civil officials of every colony with hostile operations, we
give those words a pretty extensive meaning. All that
we learn, however, from the "Orozembo" is, that
Lord Stowell was prepared to do this, and that in his
opinion (though it was not necessary to decide the
point) the conveyance of civil officials to an enemy's
colony was a purpose so connected with hostile opera-
tions as to fasten on the vessel so employed the cha-
racter of a transport.

On the other hand, there is no authority, nor, in
my opinion, any ground of reason, on which it could be
held, that a ship chartered by the enemy's government
for a purpose absolutely unconnected with military
operations was liable to condemnation. The mere hiring
would not effect the ship's national character, the pur-
pose being innocent j and such an employment, rare
and exceptional as it must undoubtedly be, would be as
lawful in time of war as it would have been in time
of peace.

If we adopt the principle on which Lord Stowell
decided the case of the "Caroline," a ship chartered
to convey an ambassador to or from a neutral country

would not be hired for a hostile purpose. Much less,
of course, would she expose herself to condemnation by
taking on board an ambassador as a simple passenger.
It must always be an innocent employment to carry
a man on a lawful and peaceful errand %

* More than enough has been written on Mr. Seward's slovenly
perversion of Vattel's dictum that "you may stop the ambassador
of the enemy on his passage." Of course you may — if you can
catch him; but to assume that you can catch him on board a
neutral ship is to beg the whole question. The dictum, however,
would never have been pressed into the service of a bad cause if
it had not been quoted by Lord Stowell, and it is reasona'uxj to
ask what Lord Stowell meant by quoting it. Why did he lay so
much stress on conditions which do not seem very material — on
the envoy's having actually arrived — been admitted — taken upon
him the functions of his office ? Why did he not lay down the
broad principle that communications with a neutral country, con-
veyed in a neutral ship, were protected as a matter of curse.
Evidently because he was not prepared to lay down that prin-
ciple. He confined himself to the case of regularly authorised
agents, whether envoys or consuls, and held that a favourable
presumption arose from the official character of the agent, and
that this presumption created a privilege. Tiie principle, how-
ever, even when restrained within these narrow limits, evidently
covers an ambassador travelling to his post, as much as a bag of
letters on its way to an ambassador.

In the case of the *' Rapid," {Edwards B,, 228,) we have the
case of a person residing in a neutral country as the agent of
a belligerent, but not openly commissioned, nor acknowledged as
a public accredited minister by the neutral government. He had
been stationed at New York by the Dutch Governor of Batavia
to induce American merchants to embark in the Batavian trade.
Letters from this person on public affiiirs (which are printed at
length in an appendix to the Eeport) addressed to the Dutch
Colonial Minister, were found in an American ship; and Lord
Stowell said that the master, pleading ignorance of their contents,
was " perhaps entitled to the benefit of the distinction that the
papers, though mischievous iu their own nature, proceeded from
a person not clothed with any public official character." He was
not entitled to the privilege of an ambassador; his communica-

Does it follow from what has been said that a ship
carrying soldiers to the enemy ought to be suffered to
pursue her voyage without seizure or interruption, unless
it can be established that she is actually hired for the
service ? Or does it appear that this was the opinion of
LordStowell?

Text-books — I except, of course, M. Hautefeuille — do
not speak this language ; neither, as we have already
seen, do treaties. Nor can any srch proposition be ex-
tracted from the judgments of Lord Stowell. It was
never necessary for him to determine the point ; and he
took care, as all judges do, to rest his decisions on the

tions were not protected simply because he was an agent stationed
in a neutral country : but the master was allowed to aver igno-
rance of the public character of the papers because the sender
appeared to be a private person.

The case of an agent commissioned by an insurgent and un-
acknowledged government raises a somewhat novel, but not a diffi-
cult question. Such a person is, as Bynkershoek says, a nuntius,
not a legatus ; he is simply a person carrying a message, without
the privileges of an ambassador. Mr. Mason is a gentleman re-
garded in very different lights in different quarters. At Wash-
ington he is considered a rebel, at Richmond an envoy, and in
London he is Mr. Mason, and that is all. On the deck of the
" Trent" he was not a rebel : whether he was an envoy or a pri-
vate passenger, was indifferent, since either way it would be no
breach of neutrality to carry him ; but to the captain of an Eng-
lish steamer he could in truth only be what he is to the English
government — a gentleman from Virginia. I can imagine, I own,
few things more irritating to a maritime Power which commands
the sea, than to see an agent sent to solicit for a revolted com-
monwealth the immense political advantage of recognition, franked
across the Atlantic under a neutral flag. And the constant jea-
lousy with which Lord Stowell regarded the carriers of ambas-
sadors' despatches shews what the inclination of his mind would
have been had such a case come before him. But a transaction
may be very irritating and yet very innocent, and this is a ques-
tion of law, not a question of feeling.

strongest ground that the facts before him would supply.
But he guarded himself studiously, as it seems to me,
against the inference that, because it was possible in
these cases to prove a hiring, it was necessary to carry
the evidence to that length in every case. " The prin-
ciple,"he said, in the "Orozembo," "on which I determine
this case, is, that the carrying military persons to the
colony of an enemy, who are there to take on them the
exercise of military functions, will lead to condemnation,
and that the court is not to scan with minute arithmetic
the number of persons that are so carried." " It would
be a very different case," he observed, in the "Friendship,"
" if a vessel appeared to be carrying only a few individual
invalided soldiers or discharged sailors, taken on board
by chance, and at their own charge. Looking at the
description given of the men on board, I am satisfied
that they are still as effective members of the French
marine as any can be." And again : " It is asked, will
you lay down a principle that may be carried to the
length of preventing a military officer, in the service of
the enemy, from finding his way home in a neutral ves-
sel from America to Europe ? If he was going merely
as an ordinary passenger, as other passengers do, the
question would present itself in a very different form.
Neither this Court, nor any other British tribunal, has
ever laid down the principle to that extent."

" A few invalided soldiers or discharged sailors, taken
on board by chance" — " a military officer finding his
way home as a passenger at his own expense !" Lan-
guage could hardly be more circumspect. A broad prin-
ciple is laid down, and the utmost caution is exerted in
suggesting exceptional cases which might possibly be
protected from its operation.

Nor, in a case where there was evidence of a hiring,

(it is right to bear this qualification in mind, though
Lord Stowell does not express it,) was it, in his judgment,
material that neither captain nor owner knew for what
purpose the ship was really employed.

"It has been argued that the master was ignorant of the
character of the service on which he was engaged, and that in
order to support the penalty, it would be necessary tliat there
should be some proof of delinquency in him or his owner. But
I conceive that is not necessary ; it will be sufficient if there is an
injury arising to the belligerent from the employment in which

the vessel is found In cases of bond fide ignorance,

there may be no actual delinquency, but if the service is injurious,
that will be sufficient to give the belligerent a right to prevent
the thing from being done, or at least repeated, by enforcing the
penalty of confiscation."

It is easy, I think, to perceive that Lord Stowell, in
these cases, was struggling with a difficulty, arising from
the nature of his jurisdiction, to which I shall advert
hereafter. He had to administer an anomalous and im-
perfect system, and to carry on an incessant warfare with
every artifice and subterfuge which the love of gain could
suggest or mercantile ingenuity devise. No judge was
ever more anxious to do substantial justice, or more
ready to modify, when justice appeared to require it,
a previously expressed opinion. And he certainly left
this branch of the law in a somewhat rough and un-
formed state. But the general course which his mind
took is not too obscurely marked for us to follow. The
first question which he asked was, whether there was
evidence that the ship had been hired by the enemy. If
the facts pointed to that conclusion, the number of per-
sons conveyed was of little consequence. It was of com-
paratively little consequence whether they had a strictly
military character, provided there was reasonable ground

for believing that to carry them to their destination
would in any way assist the prosecution of the war. The
ignorance of the owner and of his agent, the master, was
of no consequence at all j the ship's employment being
clearly hostile, it mattered not if she was pressed into it
by force or entrapped by fraud. But if there was no
such evidence of hiring, these things might become very
material, because on them might depend the whole
colour of the transaction. The number of the persons
on board, their character, occupation, and precise re-
lation to the enemy's government; tlie circumstances
under which their passage was taken ; the knowledge or
means of knowledge possessed by the owner or by his
agent, the master; might make all the difference be-
tween a really innocent and a substantially hostile voy-
age. I do not think, to put a somewhat extreme case, —
I do not think, were we now at war with the United
States, we should find much difficulty in convincing
ourselves that a neutral steamer running from Panama
to San Francisco, and conveying half a Federal regiment
or a Federal general and his staff sent to assist in the
defence of California, but taken on board as individual
passengers, was as effectually serving the enemy — was
as truly and really a Federal transport — as if she had
been specially chartered for the purpose. I have no
doubt it would be held that a vessel which was in fact
performing for the enemy, with the knowledge of her
owner or master, the service which is performed by
a transport, was liable to be treated as such, although
she might carry some cargo and some innocent pas-
sengers — although every soldier on board might have
taken and paid for his own passage, and although she
might be running, without the least deviation, on her
accustomed line.

The cases which have been decided on the conveyance
of despatches, may be used to throw light upon this
subject, because the principle is the same. A ship
which carries troops for the enemy is serving him as
a transport ; a ship which carries despatches for the
enemy is rendering him an exactly analogous service.
There is no direct authority on this point, as far as I
am aware, earlier than the close of the last century, and
the branch of law relating to it has been made almost
entirely by Lord Stowell. Evidence of hiring is not
necessary here. In none of the cases could the ship
have been fairly said to have been hired for the voyage,
or to have made the voyage for the purpose of carrying
the despatch. To subject a ship to condemnation on
this account only, two tilings are necessary — that she
should be conveying despatches for (not t(>) 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

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 The " Rapid," Mw. 228. " 6 Boh. 461.

' lb. 463. • Edw. 224. " lb. 228. " 6 Rob. 440.

■■ lb. 461.

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.

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

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.

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 ^

' 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»

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

»
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

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

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.

' !

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>.