the world. It is true, as it has been said, that one ball might take off a Charles the XIIth, and might produce the most disastrous effects in a campaign; but that is a consequence so remote and accidental, that, in the contemplation of human events, it is a sort of evanescent quantity of which no account is taken; and the practice has been, accordingly, that it is in considerable quantities only that the offence of contraband is contemplated. The case of despatches is very different; it is impossible to limit a letter to so small a size as not to be capable of producing the most important consequences. It is a service, therefore, which, in whatever degree it exists, can only be considered in one character — as an act of the most hostile nature. The offence of fraudulently carrying despatches in the service of the enemy being, then, greater than that of carrying contraband under any circumstances, it becomes absolutely necessary, as well as just, to resort to some other penalty than that inflicted in cases of contraband. The confiscation of the noxious article, which constitutes the penalty in contraband, where the vessel and cargo do not belong to the same person, would be ridiculous when applied to despatches. There would be no freight dependent on their transportation, and therefore this penalty could not, in the nature of things, be applied. The vehicle in which they are carried must, therefore, be confiscated." (a)

Carrying § 504. But carrying the despatches of an ambassador diplomatic despatches. or other public minister of the enemy, resident in a neutral country, is an exception to the reasoning on which the above general rule is founded. "They are despatches from persons who are, in a peculiar manner, the favorite object of the protection of the law of nations, residing in the neutral country for the purpose of preserving the relations of amity between that State and their own government. On this ground, a very material distinction arises, with respect to the right of furnishing the conveyance. The neutral country has a right to preserve its relations with the enemy, and you are not at liberty to conclude that any communication between them can partake, in any degree, of the nature of hostility against you. The limits assigned to the operations of war against ambassadors, by writers on public law, are, that the belligerent may exercise his right of war against them, wherever the

(a) The Atalanta, Robinson, vi. 440.

character of hostility exists: he may stop the ambassador of his enemy on his passage; but when he has arrived in the neutral country, and taken on himself the functions of his office, and has been admitted in his representative character, he becomes a sort of middle man, entitled to peculiar privileges, as set apart for the preservation of the relations of amity and peace, in maintaining which all nations are, in some degree, interested. If it be argued, that he retains his national character unmixed, and that even his residence is considered as a residence in his own country; it is answered, that this is a fiction of law, invented for his further protection only, and as such a fiction, it is not to be extended beyond the reasoning on which it depends. It was intended as a privilege; and cannot be urged to his disadvantage. Could it be said that he would, on that principle, be subject to any of the rights of war in the neutral territory? Certainly not: he is there for the purpose of carrying on the relations of peace and amity for the interests of his own country primarily, but, at the same time, for the furtherance and protection of the interests which the neutral country also has in the continuance of those relations. It is to be considered also, with regard to this question, what may be due to the convenience of the neutral State; for its interests may require that the intercourse of correspondence with the enemy's country should not be altogether interdicted. It might be thought to amount almost to a declaration, that an ambassador from the enemy shall not reside in the neutral State, if he is declared to be debarred from the only means of communicating with his own. For to what useful purpose can he reside there, without the opportunity of such a communication? It is too much to say that all the business of the two States shall be transacted by the minister of the neutral State resident in the enemy's country. The practice of nations has allowed to neutral States the privilege of receiving ministers from the belligerent powers, and of an immediate negotiation with them." (a)228

(a) Sir W. Scott's Opinion in the Caroline, Robinson, vi. 461.

[228 Carrying Hostile Persons or Papers. — This topic requires a separate treatment from that of contraband, by reason of the actual state of the practice of nations, although logically it may seem to come within the same principle. The rule is that the neutral shall not intervene to aid a belligerent in his military operations, or to ward off or relieve the pressure of war which the other belligerent is exercising upon him. But here arises the question of degree. How much may he do, without violating this rule? The question of degree is not settled with exactness; and, where settled, it is

Penalty

§ 505. In general, where the ship and cargo do not for the carbelong to the same person, the contraband articles only rying of contraband. are confiscated, and the carrier-master is refused his

often rather by a practical adjustment of forces, than on logical reasoning. One cardinal rule is, that the neutral may trade with the enemy. Another is, that he shall not intervene in the war. The practical result of the conflict of these rules is, that, in trading with the enemy, he must not break an effective blockade, and shall not take to the enemy merchandise which is of such a character as to afford direct military aid, or which will help to relieve or avert the pressure of actual siege or blockade. These rules apply to and limit neutral trade in articles of merchandise. For a violation of blockade, the penalty is a loss of the vessel and cargo. For knowingly carrying contraband of war to the enemy, the same result would logically follow. The act is prohibited because it is an unneutral intervention. Yet, the practice of nations, in mitigation of the rule, has been to condemn only the contraband goods. The great reason for this favor is, that the merchandise prohibited consists of articles having intrinsic value at all times, in the growth, manufacture, and transportation of which, vast capital and widely extended systems of labor are permanently and inextricably involved, and whose production and transportation are necessary to commerce, and profitable to producers and carriers the world over; in short, something in which the political economy of nations is deeply concerned. A further reason is, that the line as to what is contraband is not well settled, and depends on circumstances. These considerations have led to a practical adjustment of the question of contraband, to the effect that the neutral may carry merchandise to both belligerent markets, subject to this condition, that, if it be contraband, may be taken from him, at sea, and converted to the captor's use. (See note 226, ante, on Contraband of War; and note 230, infrà, on Penalty for Carrying Contraband of War.)

But the subject now under consideration is of a different character. It does not present cases of property or trade, in which such interests are involved, and to which such considerations apply, but simply cases of personal overt acts done by a neutral in aid of a belligerent.

Suppose a neutral vessel to transmit signals between two portions of a fleet engaged in hostile combined operations, and not in sight of each other. She is, doubtless, liable to condemnation. It is immaterial whether these squadrons are at sea or in ports of their own country, or in neutral ports, or how far they are apart, or how important the signals actually transmitted may be to the general results of the war, or whether the neutral transmits them directly or through a repeating neutral vessel. The nature of the communication establishes its final destination; and it is immaterial how far the delinquent neutral carries it on its way. The reason of the condemnation is the nature of the service in which the neutral is engaged. Suppose the neutral, instead of transmitting intelligence or orders by signals, takes the communication from squadron to squadron in the form of a verbal or written message, or gives transportation, under protection of his neutral flag, to an officer whom he knows to be intrusted with such a message, the result must be the same. If we assume the

character of the service to be settled as an unneutral intervention in direct aid of the enemy in conducting his enterprises, it must be immaterial whether the service be performed between Portsmouth and the Cove of Cork, or between Portsmouth and Hong Kong. The national character of places at which the illegal service begins and ends is also immaterial. If the message is to be carried from Portsmouth to Hong Kong by stages, the neutral that carries it on its way between neutral ports, by agree

freight, to which he is entitled upon innocent articles which are condemned as enemy's property. But where the ship and the innocent articles of the cargo belong to the owner of the contra

ment with the belligerent government, is violating the duties of neutrality as much as any other parties to the transaction.

The same reasoning applies to the carrying of corporeal instrumentalities of war. If an organized regiment of artillery, with its batteries, is to be sent from one point of military operations to another, a neutral vessel, that voluntarily aids in the transportation, engages, so far, in the enemy's belligerent service. If the character of the service is admitted to be unneutral, it is, of course, immaterial how far the neutral takes the troops on their way, and whether both or either of the termini of his trip are in belligerent territory.

The cases supposed are extreme, for the purpose of making more plain and undeniable the reason of the rule. The reason is, that the neutral is engaged in the belligerent service of the enemy. This, the other belligerent may prevent; and, in order to prevent, may inflict adequate penalties, to deter all others, as well as to punish the offender. It is agreed by nations that the penalty may be the condemnation of the vessel, and of any property on board which the wrong-doer fairly represents.

The question now becomes one of degree,- What acts constitute such a service to the enemy as to entail condemnation? On this, the safest guides are the decisions of prize courts, adopted as the acts of nations, and the like national acts in the way of treaties and decrees or orders.

At the beginning of the Crimean war, the Declaration of Great Britain, of 28th March, 1854 (and that of France was to the same effect), was in these words: "It is impossible for Her Majesty to forego the exercise of her right of seizing articles contraband of war, and of preventing neutrals from bearing the enemy's despatches."

...

At the beginning of the civil war in the United States, the royal proclamation of neutrality of 13th May, 1861, warns British subjects against "carrying officers, soldiers, despatches, arms, military stores, . . . for the use of either of the contending parties," as "acts in derogation of their duty as subjects of a neutral sovereign." The decree of the Emperor of the French was more general: "Frenchmen residing in France or abroad must likewise abstain from any act which, committed in violation of the laws of the empire or of the law of nations, might be considered as an act hostile to one of the two parties, and contrary to the neutrality we have resolved to observe."

The Spanish decree of June 17, 1861, says, "The transportation of munitions of war is forbidden, as well as the carrying of papers or communications for the belligerents.”

The Declaration of Paris of 1856 is silent on this subject. The proposed international code of Spanish America, of 1862, in connection with its recognition of the Declaration of Paris, had this provision: "Besides the articles qualified as such, are to be deemed contraband of war commissioners of every description sent by belligerents, and the despatches of which they are the bearers."

These national acts indicate that, in the opinion of nations, it is still, as heretofore, considered that, under certain circumstances, the carrying of communications or persons, for the belligerents, may be justly deemed unneutral acts.

Turning to the decisions of prize courts, adopted and acted upon by their respective nations, we find the following history:

The Carolina (1802), Rob. iv. 256. A Swedish vessel was engaged as one of a fleet of French transports between Italy and Egypt, employed under the control and direction of French military and naval officers. It was a clear case of employment as a transport in military operations. The vessel was lost in the charge of the captors,

band, they are all involved in the same penalty. And even where the ship and the cargo do not belong to the same person, the carriage of contraband, under the fraudulent circumstances of false

before adjudication; and the proceeding was by the neutral owners, in the prize court, to hold the captors liable for her value. As there was no negligence charged upon the captors, Sir W. Scott might have confined himself to deciding whether the capture was made with probable cause. But, as he considered the case a clear one, he chose to decree the vessel to have been a good prize. The only point of novelty or interest was that the master set up that the vessel was so employed against his consent, by force and fraud. Sir W. Scott doubted the fact, but, without passing upon the fact, decided that, if the neutral vessel is found engaged in the transport-service of an enemy, she is to be condemned, without the necessity of determining whether the enemy got her into his service by force or fraud, or by voluntary contract. The necessities of war require this rule; and the remedy of the neutral must be against the party or power that committed the wrong.

The Friendship (1807), Rob. vi. 420. An American vessel made an agreement with the agent of the French Government in the United States to carry to France some eighty men, French officers and seamen, relics of the crews of wrecked French vessels, a part of the French naval marine, who were, on their arrival, to report to the French Bureau of Marine for orders. While on board, they were under the military orders of their superior officers, or, as Sir W. Scott said, "their military character travelled with them." The contract was concealed or destroyed; but enough appeared to satisfy Sir W. Scott that the vessel engaged to take no cargo; that the compensation for the use of the vessel was paid by the French Government; and that the whole transaction was a movement of a portion of the French marine from a port in the United States to a port in their own country, under military control and supervision, in a neutral vessel engaged and paid for the purpose by the French Government. Sir W. Scott held that she was "a transport engaged in the immediate military service of the enemy." In such a case, he held it to be immaterial what was the form of the contract, - whether it passed the control and temporary ownership of the vessel to the hirer, or was only a contract to convey the persons who should be put on board. The nature of the service rendered, was that of a transport. He also held that it was not necessary to show that this particular transportation was part of a specific military operation, or an immediate expedition of active service. "The shifting of drafts in detachments, and the conveyance of stores from one place to another, is an ordinary employment of transport-vessels; and it is a distinction totally unimportant, whether this or that case may be connected with the immediate active service of the enemy." In answer to the argument that it would be unjust to lay down a rule which would prevent a neutral vessel taking a single military officer on his way home from a neutral country, he replied, "If he were going merely as an ordinary passenger, as other passengers do, at his own expense, the question would present itself in a different form. Neither this court nor any other British tribunal has ever laid down the principle to that extent." He decided the case upon the ground, that the vessel was, for the time, engaged as a transport, in the service of the French Government, to carry military persons to France.

The Orozembo (1807), Rob. vi. 430. An American vessel went from Rotterdam to Lisbon, and there took in three Dutch military officers of distinction to carry to Batavia. The vessel held out a false destination to Macao. By the contract produced, she was to take no cargo, and was to receive one thousand dollars per month for her employment, without reference to the number of persons put on board. This contract