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vessel on grounds of probable cause to believe her in fault, she should be brought in for proceedings, and the persons held as prisoners of war, on the responsibility of the State to the neutral flag, until the case is determined. Still it must be admitted that the subject is an embarrassing one, whether the right to take such persons be generally conceded, or be coupled with prize proceedings against the vessel, and seems to present a case for some special proceedings of a peculiar character, arranged by convention, on national guaranties."*

"Vessels not being subject to a penalty for carrying despatches in the way of ordinary business, packets of a regular mail line are exempted as of course; and merchant vessels are protected in like manner when, by municipal regulations of the country from the ports of which they have sailed, they are obliged to take on board all government despatches, or letters sent from the post-offices.

"The great increase which has taken place of late years in the number of steamers plying regularly with mails has given importance to the question whether it is possible to invest them with further privileges. At present, although secure from condemnation, they are no more exempted than any other private ship from visit; nor does their own innocence protect their noxious contents, so that their post-bags may be seized on account of despatches believed to be within them. But the secrecy and regularity of postal communication is now so necessary in the intercourse of nations, and the interests affected by every detention of a mail are so great, that the practical enforcement of the belligerent right would soon become intolerable to neutrals. Much tenderness would no doubt be shown in a naval war to mail vessels and their contents; and it may be assumed that the latter would be seized under very exceptional circumstances. France in 1870 directed its officers that 'when a vessel subjected to visit is a packet-boat engaged in postal service, and with a government agent on board belonging to the State of which the vessel carries the flag, the word of the agent may be taken as to the character of the letters and despatches on board'; and it is likely that the line of conduct followed on this occasion will serve as a model to other belligerAt the same time it is impossible to overlook the fact


* Dana's Wheaton, p. 659, n.


that no national guarantee of the innocence of the contents of a mail can really be afforded by a neutral power. No government could undertake to answer for all letters passed in the ordinary manner through its post-offices. To give immunity from seizure as of right to neutral mail-bags would therefore be equivalent to resigning all power to intercept correspondence between the hostile country and its colonies, or a distant expedition sent out by it; and it is not difficult to imagine occasions when the absence of such power might be a matter of grave importance.

"No usage has hitherto formed itself on the subject. During the American Civil War it was at first ordered by the government of the United States that duly authenticated mail-bags should either be forwarded unopened to the foreign department at Washington, or should be handed after seizure to a naval or consular authority of the country to which they belonged, to be opened by him, on the understanding that documents to which the belligerent government had a right should be delivered to it. On the suggestion of the English government, which expressed its belief that the government of the United States was prepared to concede that all mail-bags, clearly certified to be such, should be exempt from seizure or visitation,' these orders were modified; and the naval officers were directed, in case of capture of vessels carrying mails, to forward the latter unopened to their destination."*

The Trent The question, can persons other than those in the actual military service of a belligerent ever be taken out of neutral vessels, received a very thorough discussion in the Trent affair, and that case may be regarded as settling the question finally in the negative.

The circumstances are so well known that they need not be given at length here. The case resolved itself into the broad question, has the belligerent the right to take from a neutral vessel, under any circumstances, the persons of enemies not in the military service? Widely different views were at first held by the authorities of the United States and Europe; the statesmen and text-writers of Europe, without exception, condemning the action of Captain Wilkes in taking Messrs. Mason and Slidell out of the Trent; while the American writers were

*Hall, p. 595. Mr. Seward's letter to Mr. Welles, Oct. 31, 1862.

almost unanimous in sustaining his action as being authorized by principles of international law.

Mr. Welles, the Secretary of the Navy, even went so far as to write Captain Wilkes, congratulating him on the "great public service he had rendered in the capture of the rebel emissaries," cautioning him, however, that his forbearance in not sending the Trent into port for trial before a prize court "must not be permitted to constitute a precedent hereafter for infractions of neutral obligations."

On the demand of the British government the Confederate commissioners were, with their secretaries, restored to the protection of the English flag, and the affair terminated peaceably, although it had nearly involved the two nations in war.

"It is believed that for the opposite conclusions arrived at by American and Continental jurists there is a ready solution in the former basing their arguments on the authority of adjudications, ever heretofore recognized as binding interpretations of the law of nations, both by the Admiralty Courts of the United States and of England; while the statesmen of France and of other powers who proffered their counsels relied on those theoretical principles which, equally with them, we have desired to see incorporated into the code of international law, but which can only be obligatory when sanctioned by conventions, which England has ever refused to enter into with us."*

Trent affair.

"This celebrated case can be considered as having settled but Dana on the one principle, and that had substantially ceased to be a disputed question; viz., that a public ship, though of a nation at war, cannot take persons out of a neutral vessel at sea, whatever may be the claim of her government on those persons. It is to be borne in mind that Earl Russell, in his demand, makes no reference to the diplomatic character of Mason and Slidell, or to any special right of exemption in this case. He presents the naked case that a United States ship of war had taken persons from an innocent British neutral vessel at sea. To his reclamation against such a proceeding the United States were only too glad to assent; considering it as a triumph of their own principles, secured by their own decision, made against a strong national feeling in the particular case on the demand of the only power that had ever contended for the opposite doctrine.

*Lawrence's Wheaton, App. p. 948.

Lord Russell's answer to Mr. Seward.

"Beyond this the Trent case settles nothing. Mr. Seward considered the persons to be contraband of war from the nature of their office and the position of the power they assumed to represent. This was denied by Earl Russell, and left unsettled. Mr. Seward considered that the termini of the voyage of the Trent were immaterial, as the destination of the persons was certain, and she knowingly took them on their way. Earl Russell contends that the neutral termini were conclusive in her favor; and this was left unsettled. Earl Russell claimed for private mail-vessels no immunity, but only a more careful consideration. Mr. Seward restores the persons on the ground that, if a captor relinquishes his prize without necessity, he cannot take persons or cargo out of her as contraband—a principle well established in the law of nations. But the ground on which the British government put their demand-that persons could not be taken out of a neutral vessel by a belligerent, whatever the claim upon them-must be considered as settling that doctrine in favor of the historical American position, as there is now no nation to call it into question."

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Mr. Hall says of Lord Russell's despatch to Lord Lyons of January 23, 1862: "He denied that the capture of Messrs. Mason and Slidell was simply irregular in its incidents, and maintained that they were not liable to capture at all; but he rested the immunity which he claimed for them on the privilege of receiving diplomatic agents from belligerent States accorded by the practice of nations to neutral States, and on the necessity that contraband articles shall have a hostile, and not a neutral destination; he even seems, by quoting, without comment, a passage from Bynkershoek, in which soldiers are classed with arms and other articles of use in war, to favor the view that at least persons who are in the military service of the State may be treated as contraband.

"It is to be regretted that Lord Russell did not address himself to the refutation of the doctrine that persons can be contraband of war. For the reasons mentioned above, however, there need be no hesitation in rejecting it. In the words of Mr. Bernard, it is incorrect to speak of the conveyance of persons

Dana's Wheaton, p. 648, n. See also for a full discussion of this case, with opinions of Continental writers, App. to Lawrence's Wheaton, P. 939.

in the military or civil employment of a belligerent as if it were the same thing as the conveyance of contraband of war, or as if the same rules were applicable to it. It is a different thing, and the rules applicable to it are different.' If a vessel is so hired by a belligerent that he has entire control over it to the extent of his special needs, the ship itself is confiscable as having acquired an enemy character, and the persons on board become prisoners of war. If, on the other hand, belligerent persons, whatever their quality, go on board a neutral vessel as simple passengers to the place whither she is in any case bound, the ship remains neutral, and covers the persons on board with the protection of her neutral character."*

Before accepting this last statement it would be well to consider the effect of allowing neutral mail-steamers the privilege of carrying as passengers the enemy's officers and men to and from their home ports-cases of which would be very likely to occur in modern war. Access to ports under blockade even is generally permitted to mail-steamers at present, and such a privilege as is claimed for them above would be exceedingly dangerous to a belligerent, and is not likely to be conceded by any nation engaged in war.

The present usage among nations is for neutral governments to issue proclamations notifying their subjects of the existence of a state of war, and warning them against rendering any service to either belligerent, or engaging in contraband trade, which they then do at their own risk. But it is not held to be the duty of neutral governments to take any measures to prevent trade with a belligerent in contraband goods. The responsibility of preventing such trade rests with the injured belligerent, and he is invested with power by the law of nations to inflict punishment for offences committed against him by neutral individuals.

"It is not the practice of nations to undertake to prohibit their own subjects, by, previous laws, from trafficking in articles contraband of war. Such trade is carried on at the risk of those engaged in it, under the liabilities and penalties prescribed by the law of nations or particular treaties. If it be true, therefore, that citizens of the United States have engaged in a commerce by which Texas, an enemy of Mexico, has been supplied

*Hall, pp. 599-600.

Sec. 11. Duties

of neutrals as

to contraband.

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