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the master had been appointed agent for the cargo. But (2nd June, 1808) on prayer that the master might be allowed his private adventure, the court observed, that this was a description of cases in which the usual indulgence of the court, in that respect, would be misapplied. That it was an offence originating chiefly in the misconduct or culpable negligence of the master, and that whilst he was acting, thus culpably and wantonly with respect to the property of his owner, it could not be expected that he himself should escape with impunity, as far as his own adventure in that transaction was concerned.
“That the carrying despatches between the mother country and her colonies is criminal,” said Lord Stowell, in The Caroline (6 Rob. 464), " can hardly be doubted; and I have never heard of a claim of privilege of this kind being asserted on the part of any nation, or by any individual. On the contrary, the artifices of clandestinity and concealment, with which such acts have always been accompanied, strongly betray the opinion which the individuals themselves entertain of the right. It has been asked, what are despatches ? to which, I think, this answer may safely be returned: that they are all official communications of official persons, on the public affairs of the government. The comparative importance of the particular papers is immaterial, since the court will not construct a scale of relative importance, which, in fact, it has not the means of doing, with any degree of accuracy, or with satisfaction to itself; it is sufficient that they relate to the public business of the enemy, be it great or small. It is the right of the belligerent to intercept and cut off all communication between the
his settlements, and, to the utmost of his powers, to harass and disturb this connection, which it is one of the declared objects of the ambition of the enemy to pre
It is not to be said, therefore, that this or that letter is of small moment: the true criterion will be, is it on the public business of the state, and passing between public persons for the public service? This is the question. If individuals take papers, coming from official persons, and addressed to persons in authority, and they turn out to be mere private letters, as may sometimes happen in the various relations of life, it will be well for them, and they will have the benefit of so fortunate an event. But if the papers so taken relate to public concerns, be they great or small, civil or military, the court will not split hairs, and consider their relative importance. For on what grounds can it proceed to make such an estimate with any accuracy? What appears small in words, or what
may, perhaps, be artfully disguised, may relate to objects of infinite importance, known only to the enemy, and of which the court has no means of judging. The court, therefore, will not take upon itself the burden of forming such a scale, but will look only to the fact, whether the case falls within the general description or not."
The conveyance, however, of the despatches of an ambassador situate in a neutral country are an exception to the rule. In The Caroline, just cited, the learned judge proceeded to observe: “The circumstances of the present case, however, do not bring it within the range of these considerations, because it is not a case of despatches coming from any part of the enemy's territory, whose commerce and communications of every kind the
other belligerent has a right to interrupt. They are despatches from persons who are, in a peculiar manner, the favourite objects of the protection of the law of nations,--ambassadors, resident in a neutral country, for the purpose of preserving the relations of amity between that state and their own government. On these grounds a very material distinction arises with respect to the right of furnishing the conveyance. The former cases were cases of neutral ships carrying the enemy's despatches from his colonies to the mother country. In all such cases you have a right to conclude, that the effect of those despatches is hostile to yourself, because they must relate to the security of the enemy's possessions, and to the maintenance of a communication between them ; you have a right to destroy these possessions and that communication; and it is a legal act of hostility so to do. But 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 enemy may have his hostile projects to be attempted with the neutral state, but your reliance is on the integrity of that neutral state, that it will not favour or participate in such designs; but, as far as its own councils and actions are concerned, will oppose them. And if there should be private reason to suppose, that this confidence in the good faith of the neutral state has a doubtful foundation, that is matter for the caution of the government to be counteracted by just measures of preventive policy; but is no ground on which this court can pronounce, that the neutral carrier has violated his duty by bearing despatches, which, as far as he can know,
may be presumed to be of an innocent nature, and in the maintenance of a pacific connection. One material ground, therefore, is wanting, on which the judgment of the court proceeded in the former cases. Another distinction arises from the character of the person
who is employed in the correspondence. He is not an executive officer of the government, acting simply in the conduct of its own affairs, within its own territories, but an ambassador resident in a neutral state, for the purpose of supporting an amicable relation with it. I have before said, that persons discharging the functions of ambassadors, are, in a peculiar manner, objects of the protection and favour of the law of nations. The limits that are assigned to the operations of war against them, by Vattel (B. 4, c. 11), and other writers upon those subjects, are, that you may exercise your right of war against them, whenever the character of hostility exists; you may stop the ambassador of your enemy on his passage; but when he has arrived, and has taken upon 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 protection of the relations of amity and peace, in maintaining which all nations are, in some degree, interested. It has been argued, that he retains his national character unmixed, and that even his residence is considered as a residence in his own country; but 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 I am not aware of any instance in which it has been urged to his disadvantage. Could it be said that he would, on that principle, be
subject to any of the rights of war in a neutral territory? Certainly not. He is there for the purpose of
. carrying on the communications of peace and amity, for the interest 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 opportunities 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 states, and the use and convenience of an immediate negotiation with them. It is said, and truly said, that this exception may be liable to great abuses, and so, perhaps, will any rule that can be laid down on this subject :
Mille adde catenas;
Effugiet tamen hæc. Opportunities of conveying intelligence may always exist in some form or other. It may happen that much mischief may arise by the communication of news, in the private letters of intriguing private men, or,