Penalty

for the carrying of

§ 505. In general, where the ship and cargo do not belong to the same person, the contraband articles only 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

papers and false destination, will work a confiscation of the ship The same effect has likewise been held carriage of contraband articles in a ship,

as well as the cargo. to be produced by the

purported to be made with a private citizen at Lisbon; but Sir W. Scott was of opinion, from other evidence, that the real contract was made with the Dutch Government while the vessel was at Rotterdam. It was held that she must be considered to have been let as a transport to the Dutch Government, to convey military and other persons on their way from the parent country to a distant dependency. In such cases, he considered the number of the officers immaterial. She was engaged, by contract, to carry such persons as the Dutch Government thought it worth while to pay such a sum to have transported to a distant dependency, there to take upon them the exercise of their military functions; and, to further the success of her service, the vessel held out a false destination.

The principle, that a neutral in the enemy's service as a transport, is to be condemned, is undeniable. The only interest in this case is the treatment of the evidential facts tending to prove the character of the service. In the course of his opinion, Sir W. Scott refers to the fact that there were also on board two civil officers of the govment, and says, "Whether the principle would apply to them alone, I do not feel it necessary to determine; " but intimates an opinion that it would. But it is plain, he confines this dictum to the case before him; that is, the case of a vessel let out to a belligerent government to carry whatever persons it may designate. Even as a dictum, it does not touch the case of a neutral vessel not let out as a transport, and merely having civil officers of a belligerent government on board, without other circumstances tending to show the vessel herself to be in the enemy's service.

The Atalanta (1808), Rob. vi. 440. A Bremen ship, at the Isle of France, was detained there by the French Governor several days to take a packet; and the supercargo arranged a plan to conceal it in case of search or capture by a British cruiser, which he carried out by actually concealing it, so that its discovery was accidental. It was addressed to the French Minister of Marine at Paris; and, in the event of her arrival at Bremen, the supercargo was to give it to a French officer of artillery, second in command in the island, who was also a passenger on board, under the false designation of a planter, and who was the real bearer of the despatch. Sir W. Scott held the vessel answerable for the acts of the supercargo, who had used her for the purpose; and decided, that, if a neutral does carry official despatches from a distant island to the mother country in time of war, and fraudulently endeavors to defeat the search of the captors, and so "lends himself to effect a communication the enemy may cut off, under protection of an ostensible neutral character, he does in fact place himself in the service of the enemy's State." Although he intimates an opinion that the knowingly carrying such despatches under such circumstances would, of itself, be an unneutral intervention which would forfeit the vessel, he does not fail, in his decision, to preserve the element of fraudulent concealment. The learned judge said the despatches were, in fact, of a noxious character, giving information as to the military condition of the island; but he took care to say that this was of no great consequence; for, as the despatches were known to be official, and were to the parent government, from a distant colony which was liable to the pressure of war, and were sent under arrangements for concealment, showing them to be important, a valuable unneutral service to the enemy was undertaken.

These are the only cases of condemnation of neutrals, for carrying persons or papers, in which we have the fully reported opinion of the court. The cases of the Constantia, Susan, and Hope, all decided the same year (1808), are described in a note

the owner of which is bound by the express obligation of the treaties subsisting between his own country and the capturing country, to refrain from carrying such articles to the enemy. In

by the reporter (Rob. vi. 440), with the substance of the result, but without professing to give the language of the judge. In each of these cases, there was a condemnation. The Constantia was a Danish vessel bound from the Isle of France to Copenhagen, the master of which knowingly took charge of a packet from the governor of the island addressed to the French Ambassador at Copenhagen, which he did not disclose and give up to the captors, albeit he practised no fraud in the concealment. The Susan was an American vessel bound from Bourdeaux to New York with a letter to the Prefect of the Isle of France, which the master did not give up to the captors, although he did not practise fraud in concealing it. The Hope was an American vessel bound from New York to Bourdeaux, having on board a French officer of high military rank, entered as a merchant's clerk, and despatches from French officials in the West Indies and Isle of France, which were concealed in the hold. The court thought the master à party to these concealments. In these cases, the judge is said to have remarked upon the frequency with which neutrals were detected carrying despatches for the enemy, either with actual knowledge or under circumstances which fairly precluded them from setting up ignorance.

We now come to cases in which there was no condemnation.

The Caroline (1808), Rob. vi. 461. This was an American vessel, from New York to Bourdeaux, having on board a despatch from the French Minister in the United States to his own government. Sir William Scott distinguished this from the preceding cases, on the ground that the despatch was not from an executive officer of the enemy, in the enemy's own territory, but from a diplomatic agent, in a foreign neutral country. All nations have a permanent interest in maintaining diplomatic relations with each other, and ought not to be deprived of it by the fact that certain nations are at war. This implies a right of a neutral to have ambassadors from both belligerents residing at his court, as well as a right to send his ambassadors to their courts, and carries with it some right of the belligerent ambassador at the neutral court to have free communication with his own government. Such communications are not necessarily, or by any presumption, hostile to the interests of his country's enemy. They may be so, but they may not be; and the rule is that they may be sent under the neutral flag. If the ambassador violates the neutrality of the country to which he is accredited, by overt acts, or if he endeavors to draw that country into the war, the remedy must be diplomatic and political, and not by a rule allowing a capture of all despatches in neutral custody. The Madison (1810), Edwards, 224. This was an American vessel from Dieppe (held to be a hostile port) to Baltimore, having on board despatches from the Danish Government to the Danish Consul-General in the United States. This was held to come within the privilege of diplomatic correspondence with an agent in a neutral country.

The Rapid (1810), Edwards, 228. This was an American vessel bound from New York to Tonningen, a free port, having on board papers in an envelope addressed to a private citizen in Tonningen, and given to the master by a Dutch gentleman residing in New York. The packet, of itself, carried no evidence of a hostile official character. The person who intrusted it to the master had, in fact, been sent by the Governor of Batavia to New York, to induce American merchants to engage in certain commercial enterprises for the benefit of Java; but he was held to have neither a diplomatic nor a military character, nor to be an officer whose functions needed any recognition from the government of the United States. The packet, being opened in