Изображения страниц
PDF
EPUB

See, also, Fiore, Droit Int. Public, III. 514, § 1602; Field, Int. Code, § 353; Creasy, First Platform of Int. Law, §§ 595, 596.

The question of the transportation of military persons has been discussed and has formed the subject of resolutions by the Institute of International Law, not as a question of contraband, but as a question of prohibited transportation. In accordance with this view, the institute, at its session in Venice in 1896, adopted the following resolutions:

"§ 6. It is forbidden to attack or oppose the transportation of diplomats or diplomatic couriers: 1st, neutrals; 2nd, those accredited to neutrals; 3rd, navigating under the neutral flag between neutral ports, or between a neutral port and the port of a belligerent. "On the contrary, the transportation of the diplomats of an enemy accredited to his ally is, except it be in the course of regular and ordinary traffic, prohibited: 1st, on the territories and waters of the belligerents; 2nd, between their possessions; 3rd, between the allied belligerents.

66

"§ 7. The transportation of troops, military men, or military agents of an enemy is forbidden: 1st, in the waters of the belligerents; 2nd, between their authorities, ports, possessions, armies, or fleets; 3rd— when the transportation is made on account of or by the order or mandate of the enemy, or to conduct to him (pour lui amener) either his agents with a commission for the operations of the war, or military persons already in his service, or auxiliaries or troops enrolled in violation of neutrality-between neutral ports, between those of a neutral and those of a belligerent, from a neutral point to the army or the fleet of a belligerent. The prohibition does not extend to the transportation of individuals who are not yet in the military service of a belligerent, even though their intention is to enter it, or who make the voyage as simple passengers without manifest connection with the military service. "§ 8. The transportation of despatches (official communications between official authorities), between two authorities of an enemy, who are on land or ships belonging to or occupied by him, is prohibited, save in regular or ordinary traffic.

"The prohibition does not extend to transportation either between neutral ports or from or to some neutral territory or authority." a In connection with the resolutions of the Institute, reference should be made to the work of M. Kleen, entitled "De la Contrebande de Guerre et des Transports Interdits aux Neutres," Paris, 1893, which he prepared especially for the elucidation of the questions before the Institute.

While the controversy between Germany and Great Britain, as to the seizure of the German mail steamers, was in its early stages, Prof. T. E. Holland, editor of the British "Admiralty Manual of the Law of Prize," in a letter dated Jan. 2, 1900, and published in the London Times of the next day, said:

"The carriage by a neutral ship of enemy troops, or of even a few military officers, as also of enemy dispatches, is an enemy service' of so important a kind as to involve the confiscation of the vessel concerned, a penalty which, under ordinary circumstances, is not imposed upon carriage of contraband properly so called. See Lord

@Annuaire, XV. 231–232.

Stowell's luminous judgments in Orozembo (6 Rob. 430) and Atalanta (id. 440). The alleged offense of the ship Bundesrath would seem to be of this description."

When this letter was written, the facts in the case of the Bundesrath had not been definitely ascertained; but, without regard to any particular case, it is obvious from the passage quoted that, where the transportation of military persons is in question, Professor Holland considers the carriage of the persons, and not the special letting out of the ship to a belligerent government for that purpose, as the gravamen of the charge of " enemy service," and that he interprets the decisions of Sir William Scott as authority for this view.

(2) TRENT CASE.

§ 1265.

On November 8, 1861, the British mail steamer Trent, while on a voyage from Havana to St. Thomas, was overhauled by the American man-of-war San Jacinto, Captain Wilkes, and was compelled to surrender the Confederate commissioners, Messrs. Mason and Slidell, and their secretaries, Messrs. McFarland and Eustis, all of whom were on their way to England. The British Government demanded their release. The reason of this demand, as stated by Earl Russell, in his instructions to Lord Lyons, British minister at Washington, of November 30, 1861, was that "certain individuals" had "been forcibly taken from on board a British vessel, the ship of a neutral power, while such vessel was pursuing a lawful and innocent voyage-an act of violence which was an affront to the British flag and a violation of international law."

Writing confidentally to Mr. Adams, American minister at London, November 27, 1861, Mr. Seward said: "The act was done by Commander Wilkes without instructions, and even without the knowledge of the Government. Lord Lyons has judiciously refrained from all communication with me on the subject, and I thought it equally wise to reserve ourselves until we hear what the British Government may have to say on the subject."

Mr. Seward, Sec. of State, to Mr. Adams, min. to England (confidential),
Nov. 27, 1861, MS. Int. Great Britain, XVIII. 76.

For facts and discussions, see, generally, Harris, The Trent Affair.
Captain Wilkes, in his report on the capture, said: “I . . . carefully
examined all the authorities on international law to which I had ac-
cess, viz, Kent, Wheaton, and Vattel, besides various decisions of Sir
William Scott, and other judges of the admiralty court of Great
Britain, .. There was no doubt I had the right to capture vessels
with written despatches; they are expressly referred to in all authori-
ties, subjecting the vessel to seizure and condemnation if the captain
of the vessel had the knowledge of their being on board; but these
gentlemen were not despatches in the literal sense, and did not seem
to come under that designation, and nowhere could I find a case in

point.

I then considered them as the embodiment of despatches." (S. Ex. Doc. 1, 37 Cong., 2 sess., vol. 3, p. 123.)

"In connection with the case of Messrs. Mason and Slidell, the Department has recently been engaged in examining that of M. Fauchet, a minister from France during Washington's administration, who, while on his way to embark at Newport, R. I., on his return home, probably escaped seizure by the commander of the British ship Africa, near that port, in consequence of the packet Peggy, in which he was proceeding from New York to Newport, being compelled by stress of weather to put into Stonington, Conn. Here M. Fauchet received intimations of the intention of the commander of the Africa, which induced him to proceed to Newport by land and across the ferries. When the weather moderated the Peggy continued on her course, and when she approached the Africa she was boarded from that vessel, the trunks of the passengers were searched, and disappointment shown at the absence of M. Fauchet. This act having been committed within the maritime jurisdiction of the United States, and the British vice-consul at Newport having been implicated in it, his exequatur was formally revoked by President Washington and explanations demanded of the British Government; first through their minister here, and then through Mr. John Quincy Adams, acting chargé d'affaires at London."

Mr. Seward, Sec. of State, to Mr. Adams, min. to England, No. 146, Dec.
16, 1861, MS. Inst. Gr. Brit. XVIII. 87.

The report of Mr. Seward, Sec. of State, Dec. 9, 1862, giving the docu-
ments in respect to the attempted seizure of M. Fauchet, French min-
ister to the United States, by the commander of the British ship-of-
war Africa, in 1795, is printed in S. Ex. Doc. 4, 37 Cong. 3 sess.
For an account of the attempt of the captain of the British ship-of-war
Africa to seize M. Fauchet, the French minister to the United States,
while in our territorial waters, see 3 Life of Pickering, 231, et seq.
Neither the records of the Department of State nor those of the Navy
Department show any foundation for a report as to the detention of
the U. S. S. Congress, having on board Mr. Eustis, American min-
ister to The Hague, in the summer of 1815. (Mr. Seward, Sec. of
State, to Mr. Winthrop, Jan. 10, 1862, 56 MS. Dom. Let. 186.)

A copy of the British Government's demand was presented by Lord Lyons to Mr. Seward on December 20, 1861. Mr. Seward's reply was made on December 26. In this reply Mr. Seward argued that Messrs. Mason and Slidell and their secretaries might properly be considered as contraband, or as analogues of contraband. In this relation he said:

"All writers and judges pronounce naval or military persons in the service of the enemy contraband. Vattel says war allows us to cut off from an enemy all his resources, and to hinder him from sending

ministers to solicit assistance. And Sir William Scott says you may stop the ambassador of your enemy on his passage. Despatches are not less clearly contraband, and the bearers or couriers who undertake to carry them fall under the same condemnation.

"A subtlety might be raised whether pretended ministers of a usurping power, not recognized as legal by either the belligerent or the neutral, could be held to be contraband. But it would disappear on being subjected to what is the true test in all cases-namely, the spirit of the law. Sir William Scott, speaking of civil magistrates who are arrested and detained as contraband, says:

"It appears to me on principle to be but reasonable that when it is of sufficient importance to the enemy that such persons shall be sent out on the public service at the public expense, it should afford equal ground of forfeiture against the vessel that may be let out for a purpose so intimately connected with the hostile operations.""

But Mr. Seward, after thus contending that the capture might have been validly made, declared that Captain Wilkes did not exercise the right of capture in conformity with the law of nations. The books of law, as to the proper course to be pursued in such a case, were, as he said, dumb. While the belligerent captor had a right to prevent the contraband officer, soldier, sailor, minister, messenger, or courier from proceeding in his unlawful voyage, and reaching the destined scene of his injurious service," the person captured might, on the other hand, be innocent-that is, he might not be contraband-and he therefore had a right to a fair trial of the accusation against him. It was true, said Mr. Seward, that the courts of admiralty had no formulas for conducting proceedings against contraband persons, but, if there was no judicial remedy, the result was that the question must. be determined by the captor himself on the deck of the prize vessel, and to this course there existed very grave objections. No matter, therefore, how imperfect the existing judicial remedy might be supposed to be, it would be better to follow it than to adopt the summary one of leaving it to the captor and relying upon diplomatic debates to review it. Under these circumstances, he reached the conclusion that the captives should be given up, and in taking this course he was, he said, really defending and maintaining not an exclusive British interest, but an old, honored, and cherished American cause, upon principles laid down by Jefferson and Madison, when they protested against the British claim of impressment. "If," said Mr. Seward, "I decide this case in favor of my own Government, I must disavow its most cherished principles, and reverse and forever abandon its essential policy. The country can not afford the sacrifice. If I maintain those principles and adhere to that policy I must surrender the case itself. It will be seen, therefore, that this Government could

not deny the justice of the claim presented to us in this respect upon its merits."

Mr. Seward, Sec. of State, to Lord Lyons, British min., Dec. 26, 1861, MS.
Notes to British Leg. IX. 72; 55 Br. & For. State Papers, 627.

As to the presentation of the demand by Lord Lyons to Mr. Seward, see
Harris, The Trent Affair, 172–173.

"The President has adopted his decision with the unanimous assent of
his Cabinet." (Mr. Seward, Sec. of State, to Mr. Adams, min. to
England, No. 150, Dec. 27, 1861, MS. Inst. Great Britain, XVIII. 89.)
"The American people could not have been united in a war which, being
waged to maintain Captain Wilkes's act of force, would have prac-
tically been a voluntary war against Great Britain. At the same
time it would have been a war in 1861 against Great Britain for a
cause directly the opposite of the cause for which we waged war
against the same power in 1812." (Mr. Seward, Sec. of State, to
Mr. Adams, min. to England, No. 171, Jan. 31, 1862, Dip. Cor. 1862,
17, 18.)

As to the state of public feeling in the United States in favor of the detention of Messrs. Mason and Slidell, see the Hon. Horatio King, in the Magazine of American History for March, 1886; also, Harris, The Trent Affair.

66

The Trent affair, all the world sees, was an accident for which not the least responsibility rests upon this Government. For a time our national pride and passion appealed to us to abandon an ancient and liberal policy; but, even though unadvised, we did not listen to it, and we are to-day, after that occurrence, as ready and as willing to join other maritime powers in meliorations of the law, to the extent that France desires, as we were before it happened, and before the civil war commenced.” (Mr. Seward, Sec. of State, to Mr. Dayton, min. to France, No. 114, Feb. 19, 1862, Dip. Cor. 1862, 315, 316.)

For correspondence in the Trent case, see 55 Br. & For. State Papers, 602. In a letter to Mr. Evarts, June 8, 1879, the Hon. Benjamin F. Butler asked to be furnished with a copy of an opinion of Caleb Cushing, which, he said, he filed in the Department of State in 1861 in regard to the capture of Mason and Slidell. Mr. Evarts stated, in reply, that a search had been made, but that the papers had not been found. He suggested that the opinion might not have been placed on the official files or might afterwards have been withdrawn by Mr. Cushing. (Mr. Evarts, Sec. of State, to Mr. Butler, June 13, 1879, 128 MS. Dom. Let. 431.)

As to the claim of impressment, see supra, §§ 317–320.

Mr. Seward, in concluding his note to Lord Lyons of December 26, 1861, stated that the prisoners would be cheerfully liberated, and requested Lord Lyons to indicate a time and place for receiving them. In view of the fact that no condition of any kind was coupled with this offer, and of the statement that Captain Wilkes's act was not authorized, Earl Russell accepted Mr. Seward's response as constituting the reparation which the British Government had demanded, although it was not accompanied with any express apology. In an

« ПредыдущаяПродолжить »