§ 25. Of the same nature with the carrying of contraband Transportation of mili- goods is the transportation of military persons or despatches in the service of the enemy.

tary persons and de

but not a license for their transport at sea, as affecting the law of contraband. We are, therefore, still referred, in determining what may safely be done in this matter by neutrals, to the former usages of the tribunals of the two countries, and to the past decrees and orders of their governments. Destination is essential in a question of contraband; and, consequently, under the existing regulations, the trade in all articles, whether included in that denomination or not, is free to all vessels under a neutral or friendly flag, as long as it is not obnoxious to the suspicion of conveying contraband or prohibited articles to an enemy's port, or indirectly for the enemy's use.

By the French Ordinance of 1681, which is still the rule, it being recognized in the Ordinance of 1778, which abolished the intervening regulations, only arms and ammunition are regarded as contraband; though, during the wars of the French Revolution, all distinctions on this point, as in other matters relating to neutrals, were often practically disregarded. The English rule has varied, as well for those cases in which there were no treaty stipulations, as in their conventional arrangements; their Orders in Council, and admiralty decisions, frequently including naval stores in the permanent list of contraband articles, and, under circumstances, extending the list even to provisions, in some cases absolutely, and in others so far as to authorize their appropriation to the use of the belligerent government, on its paying the value thereof. One of their latest text writers, before the war, defined contraband to be:-"1. Articles which have been constructed, fabricated, or compounded into actual instruments of war; 2. Articles which from their nature, qualities, and quantities, are applicable and useful for the purposes of war; 3. Articles which, although not subservient generally to the purposes of war, such as grain, flour, provisions, naval stores, become so by their special and direct destination for such purposes, namely, by their destination for the supply of armies, garrisons or fleets, naval arsenals and ports of military equipment." Reddie, Researches Historical and Critical in Maritime International Law, vol. ii. p. 456.

It is remarked by publicists, that a mere change of the implements of war can make no difference with regard to the principle of the prohibition, as applied to contraband; and that if the usus bellici, as to particular articles, shift, the law shifts with them. No greater change could have occurred in maritime warfare than what has been produced, since the last general war, by the introduction of steam into navigation. In the Order of the 18th of February, 1854, steam engines are classed with naval stores, into which category, when intended for vessels, they properly fall, and whether they are to be considered as contraband, therefore, depends on the rule as to naval stores generally. So far as regards the two great maritime belligerents, there was no greater accordance in their views on this than on other questions, connected with neutral rights; though, as in the case of the flag covering the property, the only treaties between them, which refer to this subject, as is shown in the text, adopt the most liberal rule; and they, moreover, exclude, in express terms, naval stores from the list of contraband.

A neutral vessel, which is used as a transport for the spatches in the enemy's enemy's forces, is subject to confiscation, if captured by service.

The subject of the introduction, among contraband of war, of steam engines, as well as of coal, as necessary to their use, was discussed even in advance of the present contest, by text writers on the Continent, especially Hautefeuille and Ortolan. The latter objects to the English extension of contraband ad libitum, and declares his opinion to be, that, on principle, under ordinary circumstances, arms and munitions of war, which serve directly and exclusively for belligerent purposes, are alone contraband. In his second edition, (1853,) he confines the special cases to certain determinate articles, whose usefulness is greater in war than in peace, and which, from circumstances, are in their character contraband, without being actually arms or munitions of war; such as timber, evidently intended for the construction of ships of war or for gun carriages, boilers or machinery, for the enemy's steam vessels, sulphur and saltpetre, or other materials for arms or munitions of war. He corrects his former opinion, that, with the increased importance of the military steam marine, coal, as indispensable for it, may be included in this class, notwithstanding its great use for industrial and pacific purposes; and denies that, looking to the immense commercial navigation to which it is essential, and to the fact that it can never assume a form, which shows that it is intended for the exclusive use of the military marine, it can ever, under any circumstances, become contraband. Ortolan, Diplomatie de la Mer, liv. iii. ch. 6, tom. ii. p. 206, 2d edit. Hautefeuille, of course, excludes these articles from the contraband list. This is consistent with the principles of his treatise, which admits but one class of contraband, and confines it to objects of first necessity for war, which are exclusively useful in war, and which can be directly employed for that purpose, without undergoing any change; that is to say, to arms and munitions of war. He considers that steam engines are, like sails, the moving powers of a ship, and cannot be distinguished from the other articles which enter into the construction of the vessel; and he deems them, as naval stores, the objects of a free commerce. Hautefeuille, Droits des Gens Neutres, t. ii. p. 412.

The numerous treaties, to which the United States have been parties, which contain any stipulations respecting contraband, with the single exception of that of 1794, with England, confine it to arms and munitions of war; and the early ones exclude naval stores, in express terms, from the list. See U. S. Statutes at Large, vol. viii. passim.

A Swedish ordinance of the 8th of April, 1854, issued with reference to the present war, declares:

"SEC. 5. All kinds of goods, even such as belong to belligerents, may be carried in Swedish ships as neutral, except contraband of war; by which are understood cannons, mortars, all kinds of arms, bombs, grenades, balls, flints, linstocks, gunpowder, saltpetre, sulphur, cuirasses, pikes, belts, cartouch-boxes, saddles, bridles, and all other manufactures (tillverkningar) immediately applicable to warlike purposes; herein, however, are not included a stock of such articles necessary for the defence of ship and crew.

"In regard to contraband of war, should any change or addition be made, in consequence of agreement between us and other powers, a separate notice thereof shall be proclaimed." Public Documents.

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.1 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

In an English review of the Orders in Council on trade, during war, it is said: "It was never intended that the prohibition (in the Order of the 18th of February, and the subsequent orders modifying it) should be construed into a fresh declaration of contraband of war. It rests with the courts of maritime jurisdiction to determine that question; and we presume that as steam machinery has become an important element of navigation and maritime warfare since the last war, the parts or materials of this machinery, when transported to an enemy's port, or for the use of the enemy, will be as liable to condemnation as sailcloth, cordage, or spars, have been in former wars, when not restricted by treaty with neutrals." "A question has been much discussed, whether coals, which are destined to play so essential a part in modern warfare, are to be held to be contraband; but it is of so much importance to our own cruisers to be able to take in coals at neutral ports, which they would not be able to do if coal was universally regarded as a prohibited article, that we should probably lose more than we can gain by contending for the prohibition. Coals, however, have been stopped on their way to an enemy's port on the Black Sea; though it appears, from an answer given in the House of Commons by Sir James Graham, that coals will be regarded by our cruisers as one of the articles ancipitis usus, not necessarily contraband, but liable to detention under circumstances that warrant suspicion of their being applied to the military or naval uses of the enemy." Edinburgh Review, No. 203, Art. 6, July, 1854, p. 103, Am. ed.]

1 Robinson's Adm. Rep. vol. iv. p. 256. The Carolina.

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.1

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. "The carrying of two or three cargoes of military stores," says Sir W. Scott, "is necessarily an assistance of a limited nature; but in the transmission of despatches may be conveyed the entire plan of a campaign, that may defeat all the plans of the other belligerent in that quarter of the world. It is true, as it has been said, that one ball might take off a Charles the XIIth, and might produce the most disastrous effects in a campaign; but that is a consequence so remote and accidental, that, in the contemplation of human events, it is a sort of evanescent quantity of which no account is taken; and the practice has been, accordingly, that it is in considerable quantities only 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 hostile nature. The offence of fraudulently carrying despatches in the service of the enemy being, then, greater than that of carrying contraband under any circumstances, it becomes absolutely necessary, as well as just, to resort to some other penalty than that inflicted in cases of contraband. The confiscation of the noxious article, which constitutes the penalty in contraband, where the vessel and

1 Robinson's Adm. Rep. vol. vi. p. 430. The Orozembo.

cargo do not belong to the same person, would be ridiculous when applied to despatches. There would be no freight dependent on their transportation, and therefore this penalty could not, in the nature of things, be applied. The vehicle in which they are carried must, therefore, be confiscated." 1

But carrying the despatches of an ambassador or other public minister of the enemy, resident in a neutral country, is an exception to the reasoning on which the above general rule is founded. "They are despatches from persons who are, in a peculiar manner, the favorite object of the protection of the law of nations, residing in the neutral country for the purpose of preserving the relations of amity between that State and their own government. On this ground, a very material distinction arises, with respect to the right of furnishing the conveyance. The neutral country has a right to preserve its relations with the enemy, and you are not at liberty to conclude that any communication between them can partake, in any degree, of the nature of hostility against you. The limits assigned to the operations of war against ambassadors, 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 ambassador of his enemy on his passage; but when he has arrived in the neutral country, and taken 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. If it be argued, that he retains his national character unmixed, and that even his residence is considered as a residence in his own country; it is answered, that this is a fiction of law, invented for his further protection only, and as such a fiction, it is not to be extended beyond the reasoning on which it depends. It was intended as a privilege; and cannot be urged to his disadvantage. Could it be said that he would, on that principle, be subject to any of the rights of war in the neutral territory? Certainly not: he is there for the purpose of carrying on the relations of peace and amity, for the interests of his own country primarily, but, at

1 Robinson's Adm. Rep. vol. vi. p. 440. The Atalanta.