fore the ordinance of 1681, prescribed a much milder course: the value of the contraband articles, at the estimate of the admiral or his lieutenant, was to be paid after bringing the ship so freighted into port. Ancient usage, in general, made the ship also liable to confiscation: the commercial treaty of Utrecht, in 1713, points at this where it says, that "the ship itself, as well as the other goods found therein, are to be esteemed free, neither may they be detained on pretence of their being, as it were, infected by the prohibited goods, much less shall they be confiscated as lawful prize." The modern rule, pretty nniformly acknowledged, seems to be, that the ship and goods not contraband go free, except where one or both pertain to the owner of the contraband articles, or where false papers show a privity in carrying them.* The justice of confiscating the ship in both these cases is plain enough, for there is an evident intention of violating, by means of the vessel, the duties of neutrals. Whether, when the rest of the cargo belongs to the same owner, it should be thus severely dealt with, may be fairly doubted. Bynkershoek (Quæst. J. P. I. 12) decided in favor of confiscation, "ob continentiam delicti ;" and Sir William Scott gives as his reason for a similar opinion, "that where a man is concerned in an illegal transaction, the whole of his property involved in that transaction is liable to confiscation." The penalty ceases, after the voyage with the objectionable goods on board is performed. In two other cases the confiscation of the ship has sometimes been enforced,-when the contraband goods make up three quarters of the value of the cargo, and when the owner of the vessel is bound, by special treaties of his government with that of the captor, to abstain from a traffic of this description. The first resolves itself into a rule of evidence in regard to the complicity of the ship, and need not be made a distinct include articles sent from one neutral port to another, but clearly intended to be reshipped from thence to a belligerent place. Even this indirect trade in munitions of war some would regard as contraband trade, but not, we apprehend, on good grounds. * Of course where the ship is fitted for the naval warfare of the enemy, it is liable to confiscation on another ground. case; the other assumes, without reason, that the owner of the vessel must have a knowledge of the cargo, and is not generally acknowledged. Among treaties modifying the penalty in cases of contraband, that between the United States and Prussia, Treaty modifying which Franklin negotiated in 1785 (comp. § 122), the penalty. and the article of which relating to this subject was inserted in the new treaty of 1799, deserves especial mention. It is there provided, with regard to military stores, that the vessels having them on board may be detained "for such length of time as the captors may think necessary to prevent the inconvenience or damage that might ensue from their proceeding, paying, however, a reasonable compensation for the loss such arrest shall occasion to the proprietors; and it shall further be allowed to use in the service of the captors the whole, or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained by the current price at the place of its destination. But in a case supposed of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods supposed to be of a contraband nature, he shall be admitted to do it, and the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage." $ 184. troops and de If the obligations of neutrality forbid the conveyance of contraband goods to the enemy, they also forbid Neutral conveythe neutral to convey to him ships, whether of war ance of enemy's or of transport, with their crews, and still more to spatches. forward his troops and his despatches. These have sometimes been called contraband articles, which name a treaty of England with Sweden in 1691 expressly gives to soldiers together with horses and ships of war and of convoy.* They have been called, again, "contraband par accident." But in truth, as Heffter remarks, they are something more than contraband, as connecting the neutral more closely with the enemy. A contra * Marquardsen, der Trent-Fall, p. 51. band trade may be only a continuation of one which was legiti mate in peace, but it will rarely happen that a neutral undertakes in time of peace to send troops of war to another nation, and the carrying of hostile despatches implies a state of war. These two kinds of transport deserve a more extended discussion. 1. The conveyance of troops for a belligerent has long been regarded as highly criminal. In the commercial treaty of Utrecht of 1713 (Dumont, VIII. I. 345), between France and Great Britain, it is provided that the liberty granted to goods on a free or neutral ship "shall be extended to persons sailing on the same, in such wise that, though they be enemies of one or both the parties, they shall not be taken from the free ship, unless they be military persons, actually in the service of the enemy." Many modern treaties contain the same exception from the protection of the neutral flag and in nearly the same words; as for instance those of 1785 and 1800 between France and the United States, and those of the latter with Guatemala, San Salvador, and Peru.* Our formula of exception is "unless they are officers or soldiers, and in the actual service of the enemy." As for the number of persons of this sort, so transported, which will involve a vessel in guilt and lead to its condemnation, it may perhaps be said that a soldier or two, like a package or two of contraband articles, might be overlooked; but it is held that to forward officers, especially of high rank, or even a single officer, would subject the neutral vessel to confiscation. (The Orozembo, Robinson's Rep. VI. 434, Phillim. III. § 272.) A modern case shows the rigor of the English courts in regard to such transportation. The Bremen ship Greta was condemned in 1855 during the Crimean war, by a prize court at Hong Kong, for carrying 270 shipwrecked Russian officers and seamen from a Japanese to a Russian harbor, -although had this conduct been dictated by mere humanity, condemnation could not have taken place.† 2. No rule of international law, forbidding the conveyance of hostile despatches, can be produced, of an earlier date than * Marquardsen, u. s. p. 61. the first years of the present century. Sir William Scott (Lord Stowell) seems to have struck out this rule, as a deduction, and we may say, as a fair deduction from the general obligation of neutrality. The general doctrine of the English courts is this: Despatches are official communications of official persons on the public affairs of government. Letters of such persons concerning their own private affairs, and letters written by unofficial persons are not despatches. Communications from a hostile government to one of its consuls in a neutral country, unless proved to be of a hostile nature, and despatches of an enemy's ambassador resident in a neutral country are excepted from the rule, on the ground that they relate to intercourse between the hostile state and a neutral, which is lawful, and which the other belligerent may not obstruct. The comparative importance of the despatches, if within the rule, is immaterial. In order to make the carrying of enemy's despatches an offence, the guilt of the master must be established. If the despatches are put on board by fraud against him, no penalty is incurred by the ship. If he sails from a hostile port, and especially if the letters are addressed to persons in a hostile country, stronger proof is needed that he is not privy to a guilty transaction than if the voyage began in a neutral country, and was to end at a neutral or open port. If the shipmaster is found guilty of conveying hostile despatches, the ship is liable to condemnation, and the cargo is confiscable also, both "ob continentiam delicti," and because the agent of the cargo is guilty. But if the master is not such an agent, his guilt will not extend beyond the vessel. This rule, in its general form, if not in its harsher features, may be said to have passed into the law of nations. Not only the declarations of England and France, made in the spring of 1854 (§ 175, note), but the contemporaneous ones of Sweden and of Prussia sanction it, and the government of the United States in one instance has accepted it as a part of the law of nations. It is received as such by text-writers of various nationalities, by Wildman and Phillimore, by Wheaton, by Heffter, Marquardsen, and other German writers, by Or tolan and Hautefeuille. The last named publicist gives a modification of the rule, which though of private authority, deserves serious attention. Despatches can be transported, says he, from one neutral port to another, from a neutral to a belligerent, or from a belligerent to a neutral, or finally from one belligerent port to another. In the three first cases the conveyance is always innocent. In the last it is guilty only when the vessel is chartered for the purpose of carrying the despatches; but when the master of a packet boat or a chance vessel takes despatches together with other mail matter according to usage, he is doing what is quite innocent, and is not bound to ascertain the character of the letters which are put on board his vessel. Whatever may be thought of this, it may be seriously doubted whether a neutral ship conveying mails according to usage or the law of its country can be justly treated as guilty for so doing. The analogy from articles contraband of war here loses its force. When a war breaks out a captain ought to know what articles he has on board, but how can he know the contents of mailed letters? The case of the Trent, in which this and several other principles of international law were involved, may here receive a brief notice. This vessel, sailing from one neutral port to another on its usual route as a packet ship, was overhauled by an American captain, and four persons were extracted from it on the high seas, under the pretext that they were ambassadors, and bearers of despatches from the Confederate government, so called, to its agents in Europe. The vessel itself was allowed to pursue its way, by waiver of right as the officer who made the detention thought, but no despatches were found. On this transaction we may remark, (1) that there is no process known to international law by which a nation may extract from a neutral ship on the high sea a hostile ambassador, a traitor or any criminal whatsoever. Nor can any neutral ship be brought in for adjudication on accouut of having such passengers on board. (2.) If there had been hostile despatches found on board, the ship might have been captured and taken into port; and when it had entered our waters, these four men, being cit |