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.

Note 228, Dana's Wheaton.

Impressment into enemy's service no excuse.

A neutral vessel, which is used as a transport for the enemy's forces, is subject to confiscation, if captured by the opposite belligerent. Nor will the fact of her having been impressed by violence into the enemy's service, exempt her. The master cannot be permitted to aver that he was an involuntary agent. Were an act of force exercised by one belligerent power on a neutral ship or person to be considered a justification for an act, contrary to the known duties of the neutral character, there would be an end of any prohibition under the law of nations to carry contraband, or to engage in any other hostile act. If any loss is sustained in such a service, the neutral yielding to such demands must seek redress from the government which has imposed the restraint upon him. As to the number of military persons necessary to subject the vessel to confiscation, it is difficult to define; since fewer persons of high quality and character may be of much more importance than a much greater number of persons of lower condition. To carry a veteran general. under some circumstances, might be a much more noxious act than the conveyance of a whole regiment. The consequences of such assistance are greater, and therefore the belligerent has a stronger right to prevent and punish it; nor is it material, in the judgment. of the prize court, whether the master be ignorant of the character of the service on which he is engaged. It is deemed sufficient if there has been an injury arising to the belligerent from the employment in which the vessel is found. If imposition be practised, it operates as force; and if redress is to be sought against any person. it must be against those who have, by means either of compulsion or deceit, exposed the property to danger; otherwise such opportunities of conveyance would be constantly used, and it would be almost impossible, in the greater number of cases, to prove the privity of the immediate offender.

The fraudulently carrying the despatches of the enemy will also subject the neutral vessel, in which they are transported, to capture and confiscation. The consequences of such a service are indefinite. infinitely beyond the effect of any contraband that can be conveyed. Dana's Wheaton, 630–635.

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So, also, if the owner of a neutral ship has suffered his vessel to be employed in transporting military persons for the enemy, the vessel and cargo are condemned. Nor in such cases is it held necessary that the privity of the master, or his owners, be shown; it is sufficient that the employment be proven: no plea of igno*** rance or imposition is received. In the case of the transportation of ninety French mariners from Baltimore to Bordeaux, in a neutral vessel, it was contended that there was no proof that they were to be immediately employed in military service. This distine

tion was discarded by the prize court. It was enough, said Sir Wm. Scott, that they were military persons, and that their transportation, the act of their government. It was not the mere fact of carrying military persons, but the fact of the vessel letting herself out, in a distinct manner, under a contract, for that purpose. If a military officer were going merely as an ordinary passenger, as other passengers, and at his own expense, neither that, nor any other British tribunal, had ever laid down the principle to the extent of condemning a vessel for such transportation.

Halleck, p. 642.

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A neutral vessel fraudulently carrying the dispatches of an enemy, is, as a general rule, liable to condemnation. Public dispatches are defined to embrace all official communications of public officers relating to public affairs. The mere fact that such dispatches were found on board a neutral vessel, is not sufficient to produce her condemnation; for the rule refers to a fraudulent carrying of the dispatches of the enemy, and it is presumed that it would not apply to regular postal packets, whose mails, by international conventions, are distributed throughout the civilized world; nor even to merchant vessels which, in some countries, are obliged to receive letters and mail matter sent to them from the post-offices. The master must necessarily be ignorant of the contents of the letters so received, and, in the absence of all suspicion of fraud, or of interposition in the service of the enemy, the mere carrying of an enemy's dispatches, under such circumstances, could hardly be regarded as a delinquency under the law of nations, and a violation of neutral duty. The case is very different where the neutral vessel is employed by the belligerent for that purpose, or carries them fraudulently, and in the service used for the benefit of a belligerent. Another important exception to this rule, is the conveyance of the dispatches of an ambassador, or other public minister of the enemy, resident in a neutral state.

Halleck, pp. 642, 643.

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., Sec. 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 two hundred and seventy 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.

Woolsey, pp. 335, 336, Marquardsen, n. s. p. 59.

If the obligations of neutrality forbid the conveyance of contraband goods to the enemy, they also forbid the neutral to convey to him ships, whether of war or of transport, with their crews, and still more to 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 contraband trade may be only a continuation of one which was legitimate 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.

Woolsey, p. 335.

No rule of international law, forbidding the conveyance of hostile despatches, can be produced, of an earlier date than 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.

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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, but the contemporaneous ones of Sweden and 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 Ortolan 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. Woolsey, pp. 336, 337.

Despatches not being necessarily noxious, a neutral carrier is not necessarily exposed to a penalty for having made a specific bargain to carry them. He renders himself liable to it only when there is reasonable ground for belief that he is aware of their connexion with the purposes of war.

Hall, p. 699.

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A neutral vessel becomes liable to the penalty appropriate to the carriage of persons in the service of a belligerent * when the persons on board are such in number, importance, or distinction, and at the same time the circumstances of their reception are such, as to create a reasonable presumption that the owner or his agent intend to aid the belligerent in his war.

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In the transport of persons in the service of a belligerent, the essence of the offence consists in the intent to help him; if therefore this intent can in any way be proved, it is not only immaterial whether the service rendered is important or slight, but it is not even necessary that it shall have an immediate local relation to warlike operations. It is possible for a neutral carrier to become affected by responsibility for a transport effected to a neutral port, and it may perhaps be enough to establish liability that the persons so conveyed shall be in civil employment.

Hall, pp. 701, 702.

In the case of [unlawful] transport of despatches or belligerent persons, the despatches are of course seized, the persons become prisoners of war, and the ship is confiscated.

Hall, p. 702.

Despatches, on the other hand, being things, present a real analogy to contraband: they might have been classed as such, but for the attention having been concentrated on the commercial aspect of contraband. As early as the year 1636 the right of the French to visit English ships, in order to prevent the carriage of their enemies' "advices and directions," was admitted. The rule is that carrying the despatches of the enemy government, unless the master can show that he was justifiably ignorant of their noxious character, is a cause of confiscation for the ship, and for the cargo so far as belonging to the owners of the ship. An exception is made for despatches sent in order to maintain communication between the enemy state and neutral ones, for such communication is the right of the neutral states, however valuable it may be to the enemy. *

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Where the despatches which under the general rules thus far laid down would be ranked as noxious are carried in neutral mail bags, they now have the protection of the Hague regulations as to postal correspondence at sea, above, pp. 184, 185; but it may be interesting to show how far opinion had already called for that protection. I therefore retain what in the first edition of this work was said of despatches so circumstanced, namely that it is worthy of serious consideration whether those general rules at all apply to them. Since neither the master nor the owners of a ship have any knowledge of the contents of a mail bag put on board her by a post office, the guilty knowledge or mens rea necessary for the condemnation of

the ship must always be wanting in that case. There can therefore be no justification for bringing in the ship for adjudication, on the sole ground of her carrying such bags; and examination of the bags on board her without bringing her in cannot be justified. During the American civil war mail bags found in ships searched on suspicion of blockade-running or carrying contraband were the subject of correspondence between the British and United States governments. Earl Russel wrote, 10 October 1862:

Her Majesty's government cannot doubt that the government of the United States are prepared to concede that all mail bags, clearly certified to be such. shall be exempt from seizure or visitation, or that some arrangement shall be made for immediately forwarding such bags to their destination, in the event of the ship which carries them being detained. If this is done, the necessity for discussing the claim, as a matter of strict right, that Her Majesty's mails on board a private vessel should be exempted from visitation or detention. might be avoided.

Mr. Seward, by way of reply, gave the following directions, addressed to the Secretary of the Navy, 31 October 1862:

It is thought expedient that instructions be given to the blockading and naval officers that, in case of capture of merchant-vessels suspected or found to be vessels of the insurgents or contraband, the public mails of any friendly or neutral power, duly certified and authenticated as such, shall not be searched or opened, but be put as speedily as may be convenient on their way to their designated destinations. This instruction however will not be deemed to protect simulated mail bags, verified by forged certificates or counterfeited seals. Westlake, vol. 2, pp. 304-306.

When a neutral ship has not placed herself in such a relation to a belligerent government as to be virtually in its service, and has a belligerent's men or despatches on board her, either by special contract or because advantage has been taken of her functions as a regular passenger ship or of the mail bags which she carries, the question as it affects men must be kept separate from that concerning despatches. Men present no real analogy to contraband, although they as well as despatches are often spoken of as its analogues. Men cannot be forwarded like goods, in pursuance of an intention formed about them by some one else. All that can be done is to give them facilities for locomotion, and the question is what facilities of the kind the customary law of nations does not allow a neutral ship to afford. Accordingly the carriage of men has not been usually coupled in treaties with the carriage of contraband but with the clauses stipulating the rule "free ships free goods." in which it is common to find it laid down that the freedom of the flag covers all persons on board except those in the enemy's military service. And by the resolutions of the Institute of International Law on "transport service", which it passed at the same time as those on contraband, the only persons whom it is forbidden to neutrals to carry are those in a belligerent's military service and his diplomatists credited to his ally. The British Admiralty Manual includes in the prohibition "civil officials sent out on the public service and at the public expense."

The persons carried in the Orozembo were three military men and two going to be employed in civil capacities in a colonial government of the enemy. Lord Stowell did not feel it necessary to deter