The governor of Curaçao, acting under instructions of the minister of the colonies of the Netherlands, issued a decree prohibiting “the exportation of arms, ammunition, or other war materials to the belligerents." a Portugal, while stating, in Article IV. of her neutrality decree of April 29, 1898, that "all articles of lawful commerce" belonging to subjects of the belligerent powers might be carried under the Portuguese flag, and that such articles belonging to Portuguese subjects might be carried under the flag of either belligerent, yet declared: "Articles that may be considered as contraband of war are expressly excluded from the provisions of this article." Were further proof needed of the unneutral and noxious character of contraband trade, it might be found in the doctrine of infection, under which innocent cargo is condemned when associated with contraband merchandise of the same proprietor, and the transportation penalized by loss of freight and expenses, and, under various circumstances, by confiscation of the ship. From what has been shown it may be argued that, without regard to the recognition or nonrecognition of belligerency, a party to a civil conflict who seeks to prevent, within the national jurisdiction and at the scene of hostilities, the supply of arms and munitions of war to his adversary commits not an act of injury, but an act of self-defense, authorized by the state of hostilities; that, the right to carry on hostilities being admitted, it seems to follow that each party possesses, incidentally, the right to prevent the other from being supplied with the weapons of war; and that any aid or protection given by a foreign government to an individual to enable him with impunity to supply either party with such articles is to that extent an act of intervention in the contest. VII. ANALOGUES OF CONTRABAND. 1. MILITARY PERSONS. § 1264. On September 14, 1847, Mr. Buchanan, Secretary of State, instructed Mr. Bancroft, American minister at London, to bring to the notice of the British Government the action of Captain May, of the British mail steamer Teriot, who had brought from Havana to Vera Cruz General Paredes, the late President of Mexico, who was, said Mr. Buchanan, "the chief author of the existing war between a Proclamations and Decrees during the War with Spain, 27. Proclamations, 61. (See also, the proclamation of the toatai of Shanghai, id., 20, and the instructions of the Haitian Government, id., 39.) Walker's Science of Int. Law, 511–512. that Republic and the United States," and "the avowed and embittered enemy" of the latter. Knowing, as Captain May must have known, that General Paredes would exert all his influence to prolong and exasperate the war, it was, declared Mr. Buchanan, truly astonishing that he "should have brought this hostile Mexican general, under an assumed name, on board of a British mail steamer, to Vera Cruz, and aided or permitted him to land clandestinely, for the purpose of rushing into the war against the United States." Mr. Buchanan said that the President had not yet determined on the course he would pursue in regard to British mail steamers, but he would be justified in withdrawing from them the privilege which had been granted of entering the port of Vera Cruz. He would not, however, immediately resort to that extreme measure, since he was convinced that the British Government would at once adopt efficient measures to prevent such a violation of their neutrality in the future. "British mail steamers," said Mr. Buchanan, "can not be suffered to bring to Vera Cruz either Mexican citizens or the subjects of any other nation, for the purpose of engaging in the existing war on the part of Mexico against the United States. A neutral vessel which carries a Mexican officer of high military rank to Mexico, for the purpose of taking part in hostilities against our country, is liable to confiscation, according to the opinion of Sir William Scott, in the case of the Orozembo (6 Robinson's Reports, 430), and this even although her captain and officers were ignorant that they had such a person on board." In conclusion, Mr. Buchanan instructed Mr. Bancroft to acquaint Lord Palmerston with the circumstances of the case, and if it should turn out that Captain May or any of his officers were officers in the British service, to ask for their dismissal or for such other punishment as would clearly manifest their Government's disapproval of their conduct. Mr. Bancroft brought the case to the attention of Lord Palmerston in the sense of his instructions on October 8, 1847. On November 16, 1847, Lord Palmerston answered that, the lords commissioners of the admiralty having investigated the affair, her Majesty's Government had informed the directors of the Royal Mail Steam Packet Company, to which the Teriot belonged, "that the directors are bound to testify, in a marked manner, their disapproval of Captain May's conduct, in having thus abused the indulgence afforded to the company's vessels by the Government of the United States;" and Lord Palmerston added that the directors of the company had accordingly stated that they would immediately suspend Captain May from his command and that they publicly and distinctly condemned any act on the part of their officers which might be regarded as a breach of faith towards the Government of the United States, or as an infringement or invasion of the regulations established by the United States officers in those parts of Mexico which were occupied by the forces of the United States. Mr. Buchanan, Sec. of State, to Mr. Bancroft, min. to England, Sept. 14, 1847; Mr. Bancroft, min. to England, to Lord Palmerston, British for. sec., Oct. 8, 1847; Lord Palmerston to Mr. Bancroft, Nov. 16, 1847; H. Ex. Doc. 60, 30 Cong. 1 sess. 796–798. This case is discussed by Lawrence, in his edition of Wheaton (1863), It is also referred to by Mr. Horatio King, in an article on the "Trent In reply to an inquiry whether an American steamer might properly afford passage from France to Mexico to "some forty gentlemen who were taken prisoners by the French forces," at the capture of Pueblo, Mr. Seward said: "The right of your steamers as neutral vessels to carry them will not, it is presumed, be questioned by the French under the public law as it is understood to be received by them, and the Mexican Government would, it is presumed, be governed by the stipulation in the 16th article of our treaty of 1831, which says, "It is also agreed that the same liberty be extended to persons who are on board a free vessel, so that, although they be enemies to either party, they shall not be made prisoners, or taken out of that free vessel, unless they are soldiers, and in the actual service of the enemy.' Discharged prisoners on their way home could scarcely be embraced by the exception here referred to. But, supposing that your steamer reach a Mexican port without molestation, the authorities there might refuse to allow the passengers to land, and such refusal might be justifiable under the circumstances. This part of the case, however, may be regarded as of an exclusively business character which the company is most competent to decide for itself." Mr. Seward, Sec. of State, to Mr. McLane, March 14, 1865, 68 MS. Dom. "It is important not to confound, as has sometimes been artfully attempted, the right of search with the pretended right of impressment. In opposing this we do not contend against the right of search for purposes in which we have, like other nations, acquiesced; that is to say, so far as relates to objects which we have admitted to be liable to capture and condemnation, such as enemies' property and contraband articles. But we deny the right of capturing or taking out of neutral ships (and therefore searching for) persons of any description whatever, with one single exception, [that of soldiers in service of the enemy provided for in several treaties] . Yet, as all those treaties were with nations that acknowledged the princi ple of free ships, free goods,' I am not ready to assert that, with respect to Great Britain, since we admit that enemy's property is liable to capture and condemnation, the exception ought not to be to the same extent as respects persons, so as to admit that all enemies may be taken out, although they be not soldiers and in actual service of the enemies." Mr. Gallatin to Mr. Everett, Aug. 9, 1828, 2 Gallatin's Writings, 403, 404. The "Instructions to blockading vessels and cruisers," issued by the Navy Department during the war with Spain, contained the following clause: "16. A neutral vessel in the service of the enemy, in the transportation of troops or military persons, is liable to seizure." Stockton's Naval War Code, which is, however, no longer in force, contains a similar but amplified provision as follows: "ART. 16. Neutral vessels in the military or naval service of the enemy, or under the control of the enemy for military or naval purposes, are subject to capture or destruction." It is to be observed, however, that in this clause nothing is expressed as to the transportation of troops or military persons, the design appearing to be to class as a punishable act the performance by a neutral vessel of military or naval services for the enemy, perhaps under the latter's immediate employment or control. Another provision of the code which may be cited here reads as follows: "ART. 35. Vessels, whether neutral or otherwise, carrying contraband of war destined for the enemy, are liable to seizure and detention, unless treaty stipulations otherwise provide." This clause would cover the carriage of military persons, should such persons be admitted to fall within the category of contraband. It is admitted that a neutral vessel engaged in the carriage of persons in the service of a belligerent becomes liable to condemnation either when the belligerent "has so hired it that it has become a transport in his service and that he has entire control over it; or 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." This rule leaves open the question as to the carriage of persons in the service of a belligerent by a neutral vessel in the ordinary course of trade. The view has been expressed that if such persons may be classed as contraband the vessel may be seized and brought in for adjudication; but that if they may not be so classed the vessel in which they are traveling remains a ship under neutral jurisdiction which has not been brought a General Orders, No. 492, June 20, 1898, For. Rel. 1898, 781. b Hall, Int. Law (4th ed.), 701. by the conduct of the persons having control over it within the scope of those exceptional rights in restraint of trade which belligerents have been allowed to assume. On the other hand, the view has been expressed that "it is incorrect to speak of the conveyance of persons in the military or civil employment of a belligerent as if it were the same thing as the conveyance of contraband of war, or as if the same rules were applicable to it. It is a different thing, and the rules applicable to it are different." Apparently the great majority of writers treat the transportation of persons in the military service of the enemy either as a carriage of contraband or as an act analogous thereto. It is probable, however, that too much importance has been given to this somewhat technical aspect of the matter, since it seems to be generally agreed that the carriage of such persons to a military destination is an enemy service far more important than the carriage of contraband. From the belligerent's point of view the importance of the act consists not in the manner or in the motive with which it may be done, but in the aid rendered to the enemy. Whether the circumstances of the transportation may or may not be such as to render the vessel liable to confiscation, it is reasonable to hold that it is a right of the belligerent to take proper measures to prevent the enemy from receiving military aid under the protection of a neutral flag. As to the number of military persons necessary to subject the vessel to confiscation no rule can be laid down. "To carry a veteran general, under some circumstances, might be a much more noxious act than the conveyance of a whole regiment." c Although the case of the Trent related to persons in the diplomatic and not in the military service of the enemy, a considerable majority of the authorities seem to concur in the opinion that the discussion which then took place resulted in a general understanding that in the absence of a treaty it is no longer allowable to take persons out of a neutral ship, but that the ship herself, with the noxious persons on board, must be brought in for judicial examination. In numerous treaties running back to the seventeenth century, a provision may be found in connection with the subject of contraband to the effect that the persons of enemies shall not be taken out of free ships unless they are military persons in the actual service of the enemy. Such a clause may be found in various treaties entered into by the United States with foreign powers. Article XXIII. of the treaty of amity and commerce with France of February 6, 1778-the first treaty concluded by the United States-stipulated that free ships should make free goods, and in connection therewith that the same liberty should be extended to persons on board such ships, so that, "although they be enemies to both or either party, they are not to be taken out of that free ship unless they are soldiers and in actual service of the enemies." A similar clause may be found in Article XIV. of the treaty with France of September 30, 1800; in Article XI. of the treaty with the Netherlands of October 8, 1782; in Article VII. of the treaty with Sweden of April 3, 1783, and in various other early treaties, most of which have ceased to be in force. A similar a Hall, Int. Law (4th ed.), 705. Mountague Bernard, quoted by Hall, Int. Law (4th ed.), 708. c Lawrence's Wheaton, edition of 1863, 802. |