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nescent quantity, of which no account is taken, and the practice has been, accordingly, that it is only in considerable quantities 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 noxious and hostile nature."

This principle has also been frequently recognised and adopted by the English government in her official acts. In the declaration of war by England against Russia, of the 28th March, 1854, we find the following language:

"It is impossible for Her Majesty to forego her right of seizing articles contraband of war, and of preventing neutrals from bearing enemies' despatches."

So, too, in the recent proclamation of neutrality of May 13, 1861, made with reference to this very war, the following language is used:

*

"And we do hereby warn all our loving subjects, and all persons whatsoever entitled to our protection, that if any of them shall presume, in contempt of this our royal proclamation and of our high displeasure, to do any acts in derogation of their duty as subjects of a neutral sovereign in the said contest, or in violation or contravention of the law of nations in that behalf, as, for example, and more especially by entering into the military service of either of the said contending parties, * or by carrying officers, soldiers, despatches, arms, military stores or materials, or any article or articles considered and deemed to be contraband of war, according to the law or modern usage of nations, for the use or service of either of the said contending parties-all persons so offending will incur, and be liable to the several penalties and penal consequences by the said statute, or by the law of nations in that behalf imposed or denounced. And we do hereby declare that all our subjects and persons entitled to our protection who may misconduct themselves in the premises, will do so at their peril, and of their own wrong, and that they will in no wise obtain any protection from us against any liabilities or penal consequences, but will, on the contrary, incur our high displeasure by such misconduct."

Could any thing be clearer than the position taken by all commentators, and by England herself, on this very question? But we forbear making further citations to the same effect. Nor can it be necessary to add any thing for the purpose of showing that if despatches are thus objectionable, embassadors (living despatches) are still more objectionable. It would, indeed, be a very strange doctrine to insist that, although the despatches are contraband and can be seized, yet you must not seize the embassador who carries them, and who has, probably, committed them all to memory. But the question is too plain to admit of discussion or comment. It cannot be urged either that these embassadors were exempt from arrest, since such exemption does not, and has never been claimed to attach to their person until after they have arrived at their destination. They may be stopped at any time on their passage.

In the case of the CAROLINE, (6 C. Robinson, 467,) Sir WILLIAM SCOTT (afterwards Lord STOWELL) says, on this point:

"The limits that are assigned to the operations of war against them, by VATTEL and other writers upon these subjects, are that you may ex

ercise your right of war against them wherever the character of hostility exists; you may stop the embassador of your enemy on his passage." Dr. PHILLIMORE also says, (Commentaries, p. 368,) that

"It is, indeed, competent to a belligerent to stop the embassador of his enemy on his passage."

And WHEATON (p. 566) approves of and quotes the opinion of Sir WILLIAM SCOTT, above referred to, as follows:

"The limits assigned to the operations of war against embassadors by writers on public law are, that the belligerent may exercise his right of war against them wherever the character of hostility exists. He may stop the embassador of his enemy on his passage, but when he has arrived in the neutral country and takes 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."

Thus we will find this principle incorporated into all the text-books, and rightly so. For embassadors and despatches of an enemy may, as we have seen, work out the greatest harm to the other belligerent, and hence a neutral cannot be allowed to carry either towards their destination; they are contraband.

But from this doctrine, as we have said above, necessarily flows the right of visit and search in time of war.

As VATTEL says, (Book 3, ch. 8, § 11:) "We cannot prevent the conveyance of contraband goods without searching vessels that we meet at sea; we have, therefore, a right to search them." CHITTY, in his notes to VATTEL, says: "Clearly the right of search exists practically as well as theoretically." MANNING says, p. 350: "The right on the part of ships of war to search merchant vessels during the continuance of war has been granted by all writers of any authority. The right of search is, indeed, a sort of necessary complement to the right of confiscating contraband and the property of enemies.' HAZLETT and ROCHE, Ed. 1854, pp. 270, 272, after laying down the same rule, say: "The duty of self-protection sanctions this right. It is founded upon necessity, and is exclusively and strictly a war right, and does not rightfully exist in time of peace."

Chancellor KENT also expresses himself with his usual clearness on this point:

"În order to enforce the rights of belligerent nations against the delinquencies of neutrals, and to determine the real as well as the assumed character of all vessels on the high seas, the law of nations arms them with the practical power of visitation and search. The duty of self-preservation gives to belligerent nations this right. It is founded upon necessity, and is strictly and exclusively a war right, and does not rightfully exist in time of peace, unless conceded by treaty. All writers upon the law of nations and the highest authorities acknowledge the right in time of war, as resting on sound principles of jurisprudence, and upon the institutes and practice of all great maritime powers. And if, upon making the search, the vessel be found employed in contraband trade, or in carrying enemy's property, or troops, or DESPATCHES, she is liable to be taken and brought in for adjudication before a prize court."

Mr. MERCY, British Minister at Copenhagen, in 1800, wrote to Count BERNSTOFF:

"The right of visiting and examining in the open sea merchant vessels, of whatever nation, or whatever may be their destination, is regarded by the British government as the incontestable right of every nation at war."

Lord WHITWORTH, the special envoy, wrote on the same occasion:

"The right claimed by the King of England is the necessary result of the state of war. If the principle is once admitted, that a Danish frigate can guarantee from search six merchant vessels of that nation, it follows, naturally, that any power can extend protection over all the enemies' commerce. All that is required is to find in the world some one neutral state, however insignificant, sufficiently friendly to our enemies to be willing to lend her flag to cover their commerce without any risk to herself-for once the power of search is taken away, fraud will no longer fear discovery."

This doctrine, however, cannot be more strongly stated than it was by Lord STOWELL, in the case of the MARIA, (1 Rob. Rep. p. 340,) as follows:

* * *

"The right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestable right of the lawfully-commissioned cruisers of a belligerent nation. * * * This right is so clear in principle that no man can deny it who admits the legality of maritime capture. The right is equally clear in practice, for practice is uniform and universal upon this subject. The many European treaties which refer to this right, refer to it as pre-existing, and merely regulate the exercise of it. All writers upon the law of nations unanimously acknowledge it. In short, no man, in the least degree conversant with subjects of this kind, has ever, that I know of, breathed a doubt upon it."

This right, then, of visit and search, and these principles of contraband of war being thus plain and incontestable, the fact that these commissioners went on board the TRENT at a neutral port, can in nowise weaken or alter the above conclusions. That fact might be of importance (on the question of confiscating the vessel) if a plea of ignorance were made, as was, for instance, in the case of the RAPID; (Edwards' Adm. Rep. 228;) but no such plea can be put in here, nor are we discussing any question as to the disposition of the vessel. In the case we refer to the court said: "It must be understood, that where a party, for want of precaution, suffers despatches to be conveyed on board his vessel, the plea of ignorance will not avail him. His caution must be proportioned to the circumstances under which such papers are received. If he is taking his departure from a hostile port in a hostile country, and, still more, if the letters which are brought to him are addressed to persons resident in a hostile country, he is called upon to exercise the utmost jealousy with regard to what papers he takes on board. On the other hand, it is to be observed, that where the commencement of the voyage is in a neutral country, and it is to terminate at a neutral port, or, as in this instance, at a port to which, though not neutral, an open trade is allowed, in such a case there is less to excite his vigilance, and therefore it may be proper to make some allowance for any imposition which may be practiced upon him."

This same distinction is also referred to by PHILLIMORE, (vol. 3, p. 371,) in very similar language, showing that, in the opinion of that commentator, the fact that the voyage was commenced in a neutral territory, was of importance only on the question whether the vessel should be confiscated. The despatches or embassadors would be, of course, none the less contraband. He says: "With respect to such a case as might exempt the carrier of despatches from the usual penalty, (that is, from the confiscation of his vessel,) it is to be observed, that where the commencement of the Voyage is in a neutral country, and is to terminate at a neutral port, or at a port which, though not neutral, an open trade is allowed, in such a case there is less to excite the vigilance of the master, and therefore it may be proper to make some allowance for any imposition which may be practiced upon him. But when a neutral master receives papers on board in a hostile port, he receives them at his own hazard, and cannot be heard to avow his ignorance of a fact with which, by due inquiry, he might have made himself acquainted."

Besides, there would be no reason or justice in any other view of the matter. If a neutral conveys on board his vessel commissioners of a belligerent, he, of course, helps one party and injures the other, and this clearly must be so, whether he takes them from a neutral or belligerent port. This principle of non-interference by a neutral is, as we have seen above, the one from which is derived the whole doctrine of contraband of war, and must control this question, until a congress of nations or some other authorized body makes the requisite limitation in the application of the principle.

We have thus discussed these questions and reached these conclusions, relying solely on the great admitted principles of international law, (as laid down by all elementary writers,) not striving to find precedents coinciding with the facts before us. Reference might, however, be made to many cases throwing light upon the one at issue. The arrest of Mr. HENRY LAURENS, during our Revolutionary war, furnishes many points of resemblance, though we have not been able to satisfy ourselves that he was on a neutral vessel. So, too, the case of the ATLANTIC, (6 Rob. Adm. Rep. 440,) and of the CAROLINE, (6 Rob. 461,) and of the SUSAN, (an American ship condemned in the British Admiralty Court in April i, 1803,) all tend to strengthen, if possible, the conclusions we have come to above. But we shall not enlarge upon them here, or even call attention to other cases which might be cited; for we deem the conclusions we have reached to be so clearly in accordance with every principle of international law that precedents could not add any thing to the argu

ment.

But although the law seems to be clear on all the points we have discussed, and although we think the captain of the TRENT was acting illegally, and with the grossest injustice towards the United States, in allowing these commissioners to take passage on his vessel, still we cannot bring ourselves to believe that Captain WILKES was right in transferring Messrs. MASON and SLIDELL to the SAN JACINTO, and allowing the TRENT to proceed on her passage. These commissioners would be most certainly (were the question properly presented to any prize court in England or the United States) declared contraband, as we have seen above, and the vessel be confiscated. But that is a question a court alone has power to decide, and not the captain of a public vessel. The rule of

law is this (and there is no exception to the rule which will apply to the facts we are discussing :) that if a belligerent thinks there is any thing contraband of war on a neutral vessel, he may stop the vessel and search it. If, after such search made, he finds what he still thinks is contraband, he then has the right merely to take the vessel into port, and there a court of competent jurisdiction must pass upon it. One is not, of course, allowed to assume what will be the court's decision, and act as if it had been made, however clear the facts may appear to make the question. The law does not allow of such summary proceedings. There must be in all cases a judgment of the court before an execution can be issued. Captain WILKES, however, assumed that the court would declare these commissioners contraband, and acted as if it had done so. Whereas he had just as much right to confiscate the vessel on the spot, as he did have to carry off these commissioners.

Since, however, this point is of the greatest importance for a proper understanding of the true position of the government of the United States on this whole question, it is well enough, perhaps, for us to examine it a little more closely, and see if we cannot discover what policy, reason and justice dictate should be our decision here. This appears to us to be particularly desirable, as our late European despatches indicate that Great Britain intends to rely solely upon this point, in the demands she may make upon us. If we, as a nation, are wrong in the step we have taken, no one will be unwilling to acknowledge it. Those who would defend most earnestly the right, are the readiest always to acknowledge error.

What, then, is the basis of all intercourse between nations; or, perhaps we should ask, in what way do the rules of international etiquette require us to act in all our intercourse with friendly States? The answer is most simple and familiar to every one-that we must act with the greatest comity. This means, too, as all know, not only with politeness and kindness, but with the extreme of respect, formality and consideration. An illustration will be found in the treatment embassadors must receive, and in the nature of all written communications between States. In the every day intercourse of individuals, forms and ceremonies we can frequently dispense with, but in intercourse between States no such liberty is or should be allowed. We rightly demand this of other nations, and are of course willing that they should require it of us. If this, then, is so, if the mere forms of etiquette in all friendly intercourse are insisted upon so earnestly, how far more important is it that the forms of law should be strictly complied with, when we are enforcing our belligerent rights against neutrals. It must be remembered, too, in this connection, that the right to interfere in any way with neutral commerce is not an absolute right, but one granted by neutrals, because justice and the necessities of nations require it. But in granting the right, the mode of executing it has at the same time been laid down, and is a part really of the grant itself. How imperative is it, therefore, that one should, in executing such a right between such parties, act in accordance with law, and not illegally.

But again we have seen above what is required of a belligerent in executing this right; that, while granting the privilege, safeguards have been thrown about the neutral nation and neutral commerce, so that no mere suspicion, nor even any supposed knowledge of individuals, can take final

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