should have a hostile, and not a neutral, destination. 'Goods,' says Lord Stowell (the 'Imina,' 3 Rob., 167), 'going to a 'neutral port cannot come under the discription of contraband, all goods going there being equally lawful.' 'The rule respecting contraband,' he adds, as I have always understood it, is, that articles must be taken in delicto, in the actual prosecution of the voyage to an enemy's port.' On what just principle can it be contended that a hostile destination is less necessary, or a neutral destination more noxious, for constituting a contraband character in the case of public agents or despatches, than in the case of arms and ammunition? Mr. Seward sought to support his conclusion on this point by a reference to the well-known dictum of Sir William Scott, in the case of the 'Caroline,' that you may stop the ambassador of your enemy on his passage,' and to another dictum of the same judge, in the case of the 'Orozembo' (6 Rob., 434), that civil functionaries, if sent for a purpose intimately connected with the hostile operations,' may fall under the same rule with persons whose employment is directly military. These quotations seemed, to the British Government, to be irrelevant. The words of Sir W. Scott were in both cases applied by Mr. Seward in a sense different from that in which they were used.' It was further argued

Sir William Scott does not say that an ambassador sent from a belligerent to a neutral State may be stopped as contraband, while on his passage on board a neutral vessel, belonging to that or any other neutral State; nor that, if he be not contraband, the other belligerent would have any right to stop him on any voyage. The sole object which Sir William Scott had in view was to explain the extent and limits of the doctrine of the inviolability of ambassadors, in virtue of that character, for he says: The limits that are assigned to the operations of war against them, by Vattel and other writers upon these subjects, are, that you may exercise your right of war against them wherever the character of hostility exists. You may stop the ambassador or your enemy on his passage; but when he has arrived, and has taken upon him 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 protection of the relations of amity and peace, in maintaining which all nations are in some degree interested.' There is certainly nothing in this passage from which an inference can be drawn so totally opposed to the general tenour of the whole judgment, as that an ambassador proceeding to the country to which he is sent, and on board a neutral vessel belonging to that country, can be stopped on the ground that the conveyance of such an ambassador is a breach of neutrality, which it must be if he be contraband of war. Sir W. Scott is here expressing, not his own opinion merely, but the doctrine which he considers to have been laid down by writers of authority upon the subject. No writer of authority has ever suggested that an ambassador proceeding to a neutral State on board one

by the United States Government that the 'Trent,' though she carried mails, was a contract, or merchant vessel, a common carrier for hire; that maritime law knows only three classes of vessels-viz. vessels of war, revenue vessels and merchant vessels and that the 'Trent' falls within the latter class; that whatever disputes have existed concerning a right of visitation or search in time of peace, none, they supposed, had existed in modern times about the right of a belligerent in time of war to capture contraband in neutral and even friendly merchant vessels, and of the right of visitation and search in order to determine whether they are neutral and are documented as such according to the law of nations. They assumed in the case of the 'Trent,' according to their of its merchant ships is contraband of war. The only writer named by Sir William Scott is Vattel (lib. iv. c. vii. § 85), whose words are these: 'On peut encore attaquer et arrêter ses gens (ie. gens de l'ennemi), partout, où on a la liberté d'exercer des actes d'hostilité. Non seulement donc on peut justement refuser le passage aux ministres qu'un ennemi envoie à d'autres souverains; on les arrête même, s'ils entreprennent de passer secrètement et sans permission dans les lieux dont on est maître.' And he adds as an example the seizure of a French ambassador, when passing through the dominions of Hanover during war between England and France, by the King of England, who was also sovereign of Hanover. The rule, therefore, to be collected from these authorities is, that you may stop an enemy's ambassador in any place of which you are yourself the master, or in any other place where you have a right to exercise acts of hostility. Your own territory, or ships of your own country, are places of which you are yourself the master. The enemy's territory or the enemy's ships are places in which you have a right to exercise acts of hostility. Neutral vessels, guilty of no violation of the laws of neutrality, are places where you have no right to exercise acts of hostility. It would be an inversion of the doctrine that ambassadors have peculiar privileges to argue that they are less protected than other men. The right conclusion is, that an ambassador sent to a neutral power is inviolable on the high seas as well as in neutral waters while under the protection of the neutral flag.

The other dictum of Sir William Scott, in the case of the ‘Orozembo,' is even less pertinent to the present question. That related to the case of a neutral ship which, upon the effect of the evidence given on the trial, was held by the court to have been engaged as an enemy's transport to convey the enemy's military officers, and some of his civil officers, whose duties were intimately connected with military operations, from the enemy's country to one of the enemy's colonies, which was about to be the theatre of those operations, the whole being done under colour of a simulated neutral destination. But as long as a neutral government, within whose territory no military operations are carried on, adheres to its profession of neutrality, the duties of civil officers on a mission to that government and within its territory cannot possibly be 'connected with any military operations' in the sense in which these words were used by Sir William Scott, as, indeed, is rendered quite clear by the passages already cited from his own judgment in the case of the 'Caroline.'

reading of British authorities, that the circumstance that the 'Trent' was proceeding from a neutral port to another neutral port did not modify the right of the belligerent captor. The reply of the British Government to this is that according to the law as laid down by British authorities, if the real destination of the vessel be hostile (that is, to the enemy of the enemy's country), it cannot be covered and rendered innocent by a fictitious destination to a neutral port; but if the real terminus of the voyage be bonâ fide in a neutral territory, no English, nor, indeed, is it believed any American authority can be found which has ever given countenance to the doctrine that either men or despatches can be subject during such a voyage, and on board such a neutral vessel, to belligerent capture as contraband of war. The British Government regarded such a doctrine as wholly irreconcileable with the true principles of maritime law; and certainly with those principles as they have been understood in the courts of Great Britain. It is to be further observed that packets engaged in the postal service, and keeping up the regular and periodical communications between the different countries of Europe and America, and other parts of the world, though in the absence of treaty stipulations they may not be exempted from visit and search in time of war, nor from the penalties of any violation of neutrality, if proved to have been knowingly committed, are still, when sailing in the ordinary and innocent course of their legitimate employment, which consists in the conveyance of mails and passengers, entitled to peculiar favour and protection from all governments in whose service they are engaged. To detain, disturb, or interfere with them, without the very gravest cause, would be an act of a most noxious and injurious character, not only to a vast number and variety of individual and private interests, but to the public interests of neutral and friendly governments. If the American arguments were acted upon as sound, the most injurious consequences might follow. For instance, in the Civil War of 1861, according to that doctrine, any packet ship carrying a Confederate agent from Dover to Calais, or from Calais to Dover, might be captured and carried to New York. In case of a war between Austria and Italy, the conveyance of an Italian minister or agent might cause the capture of a neutral packet

plying between Malta and Marseilles, or between Malta and Gibraltar, the condemnation of the ship at Trieste, and the confinement of the minister or agent in an Austrian prison. So in the war of 1854 between Great Britain and France on the one hand, and Russia on the other, a Russian minister going from Hamburg to Washington, in an American ship, might have been brought to Portsmouth, the ship might have been condemned, and the minister sent to the Tower of London. So also a Confederate vessel of war might have captured a Cunard steamer on its way from Halifax to Liverpool, on the ground of its carrying despatches from Mr. Seward to Mr. Adams.'

§ 20. If a neutral engages in a commerce which is Rules of 1756, exclusively confined to the subjects of another country, and 1793, which is interdicted to all others, so that it cannot be carried and 1801 on at all in the name of a foreigner, such a commerce is considered so entirely national as to follow the situation of the country, and to impress its hostile character upon the property engaged in it. In the war of 1756, the French Government (enemy to Great Britain) allowed the Dutch, then neutral, to carry on the commerce between the mother country and her colonies, under special licenses granted for this particular purpose, other neutrals being excluded from the same trade. Dutch vessels so employed were captured by British cruisers, and, together with their cargoes, condemned by the British prize courts. In the opinion of these courts the vessels were to be considered like transports in the enemy's service, and the property as so completely identified with the enemy's

1 In 1804 Mr. Madison, Secretary of State of the United States, in his instructions to Mr. Munroe, the American minister in England, says: Whenever property found in a neutral vessel is supposed to be liable on any ground to capture and condemnation, the rule in all cases is, that the question shall not be decided by the captor, but be carried before a legal tribunal, where a regular trial may be had, and where the captor himself is liable to damages for an abuse of his power. Can it be reasonable, then, or just, that a belligerent commander who is thus restricted, and thus responsible in a case of mere property, of trivial amount, should be permitted, without recurring to any tribunal whatever, to examine the crew of a neutral vessel, to decide the important question of their respective allegiance, and to carry that decision into execution by forcing every individual he may choose into a service abhorrent to his feelings, cutting him off from his most tender connections, exposing his mind and his person to the most humiliating discipline, and his life itself to the greatest dangers ? Reason, justice, and humanity unite in protesting against so extravagant a proceeding.'

Explication of them

interests as to acquire a hostile character. The doctrine of these decisions has been frequently affirmed by the prize courts of England and America, and by the opinions of the most eminent text-writers of other countries. It has generally been designated by publicists as the 'rule of the war of 1756." Few now contest the correctness of this rule, viz. that where neutrals, by a special indulgence, are permitted, in time of war, to engage in a commerce of the enemy which is purely national, and from which they are excluded in time of peace, they are necessarily impressed with a hostile character. But during the wars of 1793 and 1801 Great Britain asserted that where a commerce, which had been previously regarded as a national monopoly, is thrown open in time of war to all nations, without reserve, by a general, and, on its face, a permanent regulation, neutrals have no right to avail themselves of the concession, but that their entrance into the trade thus opened is a criminal departure from the impartiality they are bound to observe. It was formerly the policy of the great European powers to confine exclusively to their ships and subjects the trade between their own ports, and between the mother country and its colonies; but, during the wars referred to, some of the Continental States abolished this monopoly, and opened their coasting and colonial trade to all nations without reserve.

§ 21. The general principle applied to cases of the interposition of neutral merchants in the colonial trade has been, that the 'fundamental maxim of the trade being founded on a system of monopolising to the parent State the whole trade to and from her colonies in time of peace, it is not competent to neutral States in time of war to assume that trade on particular indulgences, or on temporary relaxations arising from the state of war, and that such a trade is not therefore entitled to the privileges and protection of a neutral character.' The application of this general rule, however, has from time to time been qualified by some relaxations. It is upon the extent and legal effect of these, rather than on the existence or fitness of the general principle itself, that the various discussions which have taken place on these subjects have

1 Phillimore, On Int. Law, vol. iii. §§ 214, 225; Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 27; Story, Life of, vol. i. p. 288; Brymer v. Atkyns, 1 H. Black. Rep., p. 191; the 'Immanuel,' 2 Rob., 186.