According to the unratified Declaration of London neutral merchantmen (apart from the case of the carriage of persons who in the course of the voyage directly assist the operations of the enemy) might only be considered to render unneutral service if they carried such enemy persons as were already actually members of the armed forces of the enemy. Article 45 made it quite apparent, through using the words 'embodied in the armed forces,' that reservists and the like who were on their way to the enemy country for the purpose of there joining the armed forces, were not among the classes of enemy persons which a neutral vessel might not carry without exposing herself to punishment for rendering unneutral service to the enemy. 1 the case of The Trent which occurred during the American Civil War. On November 8, 1861, the Federal cruiser San Jacinto stopped the British mail steamer Trent on her voyage from Havana to the British port of Nassau, in the Bahamas, forcibly took off Messrs. Mason and Slidell, together with their secretaries, political agents sent by the Confederate States to Great Britain and France, and then let the vessel continue her voyage. Great Britain demanded their immediate release, and the United States at once granted this, although the ground on which release was granted was not identical with the ground on which it was demanded. The United States maintained that the removal of these men from the vessel without bringing her before a Prize Court for trial was irregular, and therefore not justified, whereas release was demanded on the ground that a neutral vessel could not be prevented from carrying diplomatic agents sent by the enemy to neutrals. Now diplomatic agents in the proper sense of the term these gentlemen were not, because, although they were sent by the Confederate States, the latter were not recognised as such, but only as a belligerent Power. Yet they were political agents of a quasi-diplomatic character, and the standpoint of Great Britain was for this reason perhaps correct. The fact that the Governments of France, Austria, and Prussia pro tested through their diplomatic envoys in Washington shows at least that neutral vessels may carry unhindered on the open sea (though not through the territorial waters of the other belligerent-see above, vol. i. § 398, and the cases of Tarnowski, Dumba, and Bernsdorf there mentioned) diplomatic agents sent by the enemy to neutrals, however doubtful it may be whether the same is valid regarding agents with a quasi-diplomatic character. See Parl. Papers, (1862) North America, No. 5; Marquardsen, Der Trent-Fall (1862); Wharton, iii. § 374; Moore, vii. § 1265; Phillimore, ii. §§ 130-130a; Mountague Bernard, Neutrality of Great Britain during the American Civil War (1870), pp. 187-225; Harris, The Trent Affair (1896). But see The Pontoporos, (1915) 1 B. and C. P. C. 371; (1916) 2 B. and C. P. C. 87, where this and other cases were considered; compare also The Svithiod, [1920] A.C. 718. 1 But see the French case of The Frederico (1915)-Garner, ii. § 544; text in R.G., xxii. (1915), Jurisprudence, p. 17, xxiv. (1917), Jurisprudence, p. 11-in which the Prize Court of Appeal, in direct opposition to the Renault Report on the Declaration of London, decided that reservists on their way home from abroad are considered to be 'incorporated' in the army of their home State. Four different cases of carrying members of the armed forces of the enemy were distinguished by the unratified declaration, namely (1) that of a neutral vessel exclusively engaged in the transport of enemy troops, (2) that of a vessel transporting a military detachment of the enemy, (3) that of a vessel transporting one or more persons who in the course of the voyage directly assist the operations of the enemy, (4) that of a vessel transporting, on a voyage specially undertaken, individual members of the armed forces of the enemy. (1) According to Article 46 (4) a neutral vessel exclusively appropriated at the time to the transport of enemy troops acquired thereby enemy character. This case will be considered with others of the same kind below.1 (2) In case a vessel, not exclusively appropriated to that work, and not on a voyage specially undertaken for that purpose, transported, to the knowledge of either the owner or the charterer or the master, a military detachment of the enemy, she was, according to Article 45 (2), to be considered to render unneutral service for which she might be punished. Accordingly, if to the knowledge of either the owner or the charterer or the master, a neutral vessel in the ordinary course of her voyage carried a military detachment of the enemy, she was to be liable to be seized for unneutral service. (3) In case a neutral vessel, to the knowledge of either the owner or the charterer or the master, carried one or more persons-whether a belligerent or neutral subject -who in the course of the voyage directly assisted the operations of the enemy in any way, for instance by signalling or sending a message by wireless telegraphy, she was, according to Article 45 (2), to be likewise liable to seizure for rendering unneutral service. (4) In case a neutral vessel carried individual members of the armed forces of the enemy, she was, according to Article 45 (1), only to be liable to seizure if she was on a voyage specially undertaken for such transport, e.g. if she 1 § 410. Trans Intelli gence to the had been diverted from her ordinary course and had touched at a port outside her ordinary course for the purpose of embarking, or was going to touch at a port outside her ordinary course for the purpose of disembarking, the enemy persons concerned. A liner, therefore, carrying individual members of the armed forces of the enemy in the ordinary course of her voyage might not be considered to be rendering unneutral service and might not be seized. However, according to Article 47, a neutral vessel carrying members of the armed forces of the enemy while pursuing her ordinary course, might be stopped for the purpose of taking off such enemy persons and making them prisoners of war.1 But the rules formulated by the Declaration of London are not binding, and the former customary rules remain applicable. § 409. Either belligerent may punish neutral mermission of chantmen for transmission of intelligence to the enemy. According to customary rules of International Law Enemy. either belligerent may punish neutral vessels for the carriage of political despatches from or to the enemy, and especially such despatches as relate to the war. But to this rule there have been two exceptions. First, as neutrals have a right to demand that their intercourse with either belligerent be not suppressed, a neutral vessel might not, according to the old cases, be punished for carrying despatches from the enemy to neutral Governments, and vice versa,2 or from the enemy Government to its diplomatic agents and consuls abroad in neutral States, and vice versa.3 The second exception was created by Article 1 of Hague Convention XI. relative to postal correspondence, which provides that postal correspondence, whether private or official, is inviolHowever, the mere fact that a neutral vessel has political despatches to or from the enemy on board able. 1 See below, § 413. 2 The Caroline, (1808) 6 C. Rob. 461. 3 The Madison, (1810) Edwards 224. 4 As to which, see above, § 191. does not by itself prove that she is carrying them for and in the service of the enemy. Just as in the case of certain enemy persons on board, so in the case of despatches, the vessel is only considered to be carrying them in the service of the enemy if she knows of their character and has nevertheless taken them on board, or if she is directly hired for the purpose of carrying them. Thus, the American vessel Rapid,1 which was captured during the war between Great Britain and the Netherlands, on her voyage from New York to Tonningen, for having on board a despatch for a cabinet minister of the Netherlands hidden under a cover addressed to a merchant at Tonningen, was released by the Prize Court. On the other hand, the Atalanta,2 which carried despatches in a tea chest hidden in the trunk of a supercargo, was condemned.3 According to the unratified Declaration of London, the carriage of despatches for the enemy might only be punished in case it fell under the category of transmitting intelligence to the enemy on the part of a neutral vessel. Two kinds of such transmission of intelligence had to be distinguished : First, according to Article 46 (4), a neutral vessel exclusively intended for the transmission of intelligence to the enemy acquired thereby enemy character; this will be considered with other cases of the same kind below.4 Secondly, according to Article 45 (1), a neutral vessel might be seized for transmitting intelligence to the enemy if she was on a voyage specially undertaken for such transmission, e.g. if she had been diverted from her ordinary course and had touched or was going to touch at a port outside her ordinary course for the purpose of transmitting 1 (1810) Edwards 228. spite of the case of The Rapid, Unneutral Service intelligence to the enemy. A liner, therefore, transmitting intelligence to the enemy in the ordinary course of her voyage might not be considered to be rendering unneutral service, and might not be punished. However, self-preservation would in a case of necessity have justified a belligerent in temporarily detaining such a liner for the purpose of preventing the intelligence from reaching the enemy.1 The conception 'transmission of intelligence' was not defined by the Declaration of London. It certainly meant, not only oral transmission of intelligence, but also the transmission of despatches containing intelligence. The transmission of any political intelligence of value to the enemy, whether relating to the war or not, ought to have been considered unneutral service, unless it was intelligence transmitted from the enemy to neutral Governments, or vice versa, or from the enemy Government to its diplomatic agents and consuls abroad in neutral States. But the rules contained in the Declaration of London are not binding, and the old customary rules remain applicable. § 410. In contradistinction to cases of unneutral service which are similar to carriage of contraband, the Declaracreating tion of London enumerated in Article 46 four cases of Enemy such kinds of unneutral service as vested neutral vessels with enemy character.2 Character. (1) There was, first, the case of a neutral merchantman taking a direct part in the hostilities. This might occur in several ways, but such a vessel in every case was to lose her neutral character and acquire enemy character, just as does a subject of a neutral Power who enlists in the ranks of the enemy armed forces. But a distinction had to be made between taking a direct part in the hostilities, for instance rendering assistance to the enemy fleet during battle, and acts of a piratical character. If a neutral merchantman without letters of marque during 1 See below, § 413. 2 See above, § 89 (1). 3 See above, §§ 85, 181, 254. |