not produced to the captors as they ought to have been; and the court announced that, in view of the multiplication of such cases, it would be considered a proof of fraud if papers such as those in question were not produced voluntarily in the first instance. The ship was condemned, but the cargo was restored, including what belonged to the owner of the ship, since it did not appear that the master had been appointed agent for the cargo.

The third case was that of the Hope, an American vessel, captured on a voyage from Bordeaux to New York, having on board various dispatches to officers of the Government in the French West Indies, and also a military officer of rank who had been shipped as a merchant's clerk going to settle some accounts in New York. The master swore that the papers in question were brought on board in the officer's baggage, and had been stowed in the hold for want of room in the cabin assigned to him, and that he had refused at Bordeaux to take any public papers. The court thought that the master was a party to the concealment both of the character of the military officer and of the papers, and condemned the ship, but restored the cargo, the master not appearing to have been the agent for it. Coming to cases of the carriage of dispatches in which the vessel and cargo have been restored, the first to be noticed is that of the Caroline. This case is summarized in Mr. Dana's note, but with far less than his usual skill, since, in common with most other writers who have discussed it, he fails to notice the terms on which restitution was decreed and thus misses the precise position of the court. The case was that of an American vessel, captured with a cargo of cotton and other articles on a voyage from New York to Bordeaux. There were found on board dispatches from the French minister and consul in the United States to the Government of France. Sir William Scott distinguished the case of carrying the dispatches of the enemy's ambassador, residing in a neutral country, from that of carrying dispatches of the enemy from the colonies to the mother country. In the latter case he said the criminality of the act could hardly be doubted, and by dispatches he included "all official communications of official persons, on public affairs of the government," without regard to the 'comparative importance of the particular papers." But the neutral country, he declared, has a right to preserve its relations with the enemy, and it is not to be concluded the communications between them possess the nature of hostility; and if there should be private reason to suspect the good faith of the neutral, while it might afford ground for measures of preventive policy on the part of the government, it would not justify the court in pronouncing that the neutral character had violated his duty by bearing dispatches which, as far as he could know, might be presumed to be of an innocent nature. But, although Sir William Scott thus held that the carriage of the dispatches was not presumptively unlawful, he declared that a private merchant was "under no obligation to be the carrier of the enemy's dispatches to his own government," and that he might be held "fairly subject" to the "inconvenience" of having his vessel brought in for examination, and of the necessary detention and expense. "He gives," concluded Sir William Scott, "the captors an undeniable right to

a6 C. Rob. 461, April 1, 1808.

66

intercept and examine the nature, and contents of the papers, which he is carrying; for they may be papers of an injurious tendency, although not such, on any a priori presumption, as to subject the party who carries them to the penalty of confiscation, and by giving the captors the right of that inquiry, he must submit to all the incon venience that may attend it." On this ground Sir William Scott, while directing the ship and cargo to be restored, did so only on condition of payment of the captor's expenses. Another case is that of the Madison. (Edward's Adm. (1810), 224.) This was the case of an American vessel, captured on a voyage from Dieppe to Baltimore, having on board dispatches from the Danish Government to the Danish consul-general in the United States. The case was held to come within the privilege of transporting official correspondence with an agent in a neutral state; but the court also emphasized the point that the innocent character of such correspondence was not a conclusive presumption.

In the case of the Rapid (Edward's Adm. (1810), 228) an American vessel was captured by the British on a voyage from New York to Tonningen, a free port. There was found on board a packet of papers addressed to a private citizen in Tonningen. This packet was given to the master by a person who was represented as a Dutch gentleman residing in New York, but who was in fact sent by the governor of Batavia to New York to engage merchants in commercial enterprises with Java. He possessed, however, neither a diplomatie nor a military character. On being opened it was found to contain letters conveying important information to the Dutch Government. The master alleged ignorance of the official character of the packet and of its hostile destination. Sir William Scott refused to consider, as conclusive of the case, either the fact that the vessel was going from one neutral port to another or that she had on board noxious dispatches. He held that the consequences of the carriage would be determined by the nature of the act itself. While the dispatches were noxious, he did not desire to lay down a rule which should deter a neutral master from taking private letters. The caution of the master must be proportioned to the circumstances under which the papers were received. If he was sailing from a hostile country, and, still more. if the letters were addressed to persons resident in a hostile country, the master was called upon to exercise the utmost jealousy; on the other hand, when the voyage began, and was to terminate in a neutral country, there was less to excite his vigilance. Under the circumstances the vessel was restored.

With regard to Sir William Scott's decisions as to the carriage of official dispatches, it is to be observed (1) that, in cases in which the vessel or the vessel and cargo were condemned, he proceeded not upon the ground of governmental employment, but simply upon that of the aid rendered, knowingly or fraudulently, to the enemy; and (2) that, in cases in which, knowledge or fraud not being proved, the vessel was restored, the claimants were required to pay the captors' expenses. Thus, in the case of the Rapid, Sir William Scott, in pronouncing sentence of restitution, declared that "in this, as in every other instance in which the enemy's dispatches are found on board a vessel," the master had, by failing to exercise the utmost jealousy, and in spite of the fact that his voyage was to terminate in a neutral country, "justly subjected himself to all the inconven

iencies of seizure and detention, and to all the expenses of those judicial inquiries which they have occasioned."

The practical futility of attempting to base a final solution of the question under consideration upon the mere form of the agreement under which military persons in the service of the enemy are transported— whether they are carried under a contract with the government or merely as passengers ❞—may be vividly illustrated by a correspondence which took place during the revolution in Chile in 1891.

In a dispatch to Lord Salisbury of Aug. 12, 1891, Mr. Kennedy, British minister at Santiago, reported that on the 26th ultimo he had learned from the agent of the Pacific Steam Navigation Company, a British concern, at Valparaiso, that the company's steamer Iberia had been detained by the authorities two days at Coronel, in order to embark soldiers for the Government, and that the company's agent at Coronel, in explanation of his action, which was contrary to his instructions stated that his objections were overruled by the gov ernor of Coronel, who satisfied him that the soldiers were embarked under Mr. Kennedy's authority and by his orders. On August 3rd Mr. Kennedy wrote to Señor Zañartu, the minister for foreign affairs, and requested an explanation of this statement of the governor, at the same time denying that he had given any orders or authority in the matter.

Accompanying the dispatch there was a note of Mr. Kennedy to Señor Zañartu, of July 15, 1891, acknowledging the receipt of a note of the latter stating that the Government desired immediately to ship, by the Iberia, 400,000 silver dollars to Montevideo, and also a certain number of individuals, not possessed of any special character, to Punta Arenas, and inquiring whether the money and the passengers could count, in case of seizure by the revolutionary squadron, on the protection of the British flag, in the sense of exacting the release of the individuals and the restitution of the specie. Mr. Kennedy, in reply, referred to similar assurances given by him in regard to British vessels carrying wheat to Europe, and to the concurrence of Her Majesty's senior naval officer on the station in them. There was also a letter of Mr. Prain, the company's agent at Valparaiso, to Mr. Kennedy of July 25, 1891, expressing surprise at the reports from Coronel, especially as Mr. Kennedy had warned him in a private letter not to receive "fighting men" on board as passengers, since by so doing the steamers would run the risk of getting into trouble in which Her Majesty's representatives would not be able to help them. In a letter to Mr. Prain of August 3, 1891, Mr. Kennedy said: "I privately conveyed to you, in the interests of your company, the opinion expressed to me by Admiral Hotham on the general question of conveyance of troops, stores, &c., but I abstain from concurring officially in that opinion as regards the Pacific Steam Navigation Company."

In his dispatch of August 12, Mr. Kennedy, referring to this correspondence, said:

"As regards the alleged illegality of the above shipments as asserted by the Oppositionists and their sympathizers, I beg to state that the Pacific Steam Navigation Company are bound under their contract to carry soldiers, military stores, &c., excepting in the case of war between two republics on this coast; but, as the Chilean Government are now engaged in the suppression of a rebellion, the above exemp

tlon, I venture to think, does not apply. It is true that, in reply to Mr. Prain's private and confidential inquiry I privately reminded him that Admiral Hotham had given a general opinion against the transport of soldiers and stores by British ships; but I did this to help Mr. Prain in his efforts to induce the authorities to send their soldiers on board his ship as private passengers, so as not to compromise his position with the Opposition, for whom he has strong sympathies, and in the success of whose cause he is an enthusiastic believer. But, as your lordship will perceive, I decline to commit myself officially to the opinion that the Pacific Steam Navigation Company would, under present circumstances, commit a breach of neutrality in transporting troops for the Chilean Government." a The purport of Mr. Kennedy's suggestion appears to be that, if the persons in question were transported as "troops for the Chilean Government," the act might be considered culpable; but that if the same persons, who were in fact soldiers in the service of that Government, were taken on board as "private passengers," the ship would not be " compromised" by their transportation. Perhaps a touch of irony may be detected in Mr. Kennedy's suggestion, since it was not entirely harmonious with the private advice which he gave on the strength of Admiral Hotham's opinion.

In the neutrality proclamation issued by the British Government April 23, 1898, in respect of the war between the United States and Spain, the acts against which British subjects were warned as being in derogation of their duty as neutrals, or in contravention of the law of nations, comprised the "carrying" of "officers, soldiers, dispatches, arms, ammunition, military stores or materials, or any article or articles considered and deemed to be contraband of war according to the law or modern usages of nations, for the use or service of either of the said powers." b

In the late controversy between Germany and Great Britain growing out of the seizure and detention by British cruisers of the German East African mail steamers Bundesrath, General, and Herzog it appears that one of the grounds on which the steamer first mentioned was seized was that she carried "twenty Dutch and Germans and two supposed Boers, three Germans and two Austrians, believed to be officers, all believed to be intending combatants, although shown as civilians." In reply to the request of the German Government for the vessel's release Lord Salisbury stated, among other things, that she had on board a number of passengers believed to be volunteers for service with the Boers." It was subsequently stated that the search of the ship was expected to disclose arms ainong baggage of Germans on board, who state openly they are going to the Transvaal." The German Government declared that it had no knowledge of more than two of its officers having proceeded to the Transvaal, where they were unable to obtain commands. The British Government subsequently directed that every facility for proceeding to his destination should be afforded "to any passenger whom the court considers innocent." The steamer and her cargo were afterwards discharged. In the case of the Herzog it was alleged, among other things, that she had on board a considerable number of male pas

a Blue Book, Chile, No. 1 (1892), 236–242.

Proclamations and Decrees During the War with Spain, 35.

sengers, many in khaki, apparently soldiers." It turned out that she had among her passengers three Red Cross expeditions. The General was said to have on board a considerable number of Dutch and German passengers for the Transvaal in plain clothes, but "of military appearance," some of whom were believed to be trained artillerymen. Lord Salisbury afterwards stated that "there was no sufficient evidence as to their destination to justify further action on the part of the officers conducting the search.”

In none of these cases was it alleged that the suspected persons were soldiers in the actual service of the enemy. They seem rather to have been looked upon as contraband, as material immediately useful in war. In this relation it is to be observed that Count von Bülow, in a speech in the Reichstag. January 19, 1901, laid down certain propositions of international law, one of which was that by the term contraband of war only such articles or persons are to be understood as are suited for war, and at the same time are destined for one of the belligerents." By this definition Count von Bülow seems to have concurred in the opinion apparently entertained by Lord Salisbury, that the transportation of persons suited for war and destined for a belligerent may be dealt with as a case of contraband, without regard to the question whether such persons are in the actual service of the enemy."

This opinion accords with that of Bluntschli, who says:

"§ 815. The transportation of troops or of general officers forming part of belligerent armies, on neutral ships, is assimilated to the transportation of materials of war and is regarded as contraband. The troops or officers may be made prisoners."

By troops he means not only a large force, but a small number of soldiers with an underofficer, for example; and he considers the same principle applicable to a military general officer without his command.b

Perels considers as prohibited the transportation of subjects of a belligerent power who are in the actual military service or who are liable to such service.c

Marquardsen thinks it an essential condition of seizure that the persons are in the actual military service of the enemy; and he holds that if Mason and Slidell had been military persons the question of the legality of their capture would have been one for the determination of the prize courts, although the Trent was not under contract with any government.

Rivier, in his late work, says:

"Another application of the principles laid down concerns the transportation at sea, by neutral ships, of soldiers and sailors destined to a belligerent. According to a just opinion this transportation is forbidden to the neutral state, but not to its private citizens. The latter undertake it at their peril and risk. If, as we assume, the owner or the master of the ship is cognizant of the nature of the transportation, and that it is of sufficient importance, which is a question of fact, the injured belligerent may seize and confiscate the ship." e

a Blue Book, Africa, No. 1 (1900).

Le Droit Int. Codifié (Lardy's ed.), Paris, 1881.

Das internationale öffentliche Seerecht, Berlin, 1882.

Der Trent-Fall (1862), chap. 10.

e Principes du Droit des Gens, II. 388.