As the ownership of goods partly contraband and partly permissive taints the whole with the vice of contraband, in the case of an insurance on the permissive portion of such mixed goods, or on a neutral ship carrying contraband goods belonging to her owner, the underwriter must be either explicitly or impliedly informed of the circumstances. Otherwise, as intimated above, the insurance may be held void on the ground of concealment (1). But it is to be deduced from Hobbs's case, supra, that the circumstance that a Court of the alien captors has condemned property as contraband of war will not necessarily debar the assured from pleading in the Courts of this country that the condemnation was bad under the law of nations; and that it is not de facto a defence to a claim on the underwriters under a policy warranting no contraband (m).

The carriage by neutrals to a belligerent of all articles subservient to warlike uses being by the common law of nations attended by the liability to confiscation of the obnoxious cargo, it naturally follows that the transport of the enemy's troops and conveyance of his despatches will be at least as strictly prohibited.

consider.

This subject we will now

(7) Arnould, 6th ed. p. 636, reads as follows:

"As carrying contraband articles entails the confiscation of all property on board the neutral ship belonging to the same owner, it would clearly amount to a breach of the warranty of neutrality as to such property. With regard to the ship and such portion of the cargo as belongs to different owners, it will only produce such a result when the circumstances of criminality are such as involve both ship and cargo in one common penalty; as where they show that the shipowner and the other freighters were cognizant of, and concerned in, the contraband trading."

But seeing that contraband of war may be directly shipped and insured without being so described in the policy, and yet without violating the neutral warranty, it is by no means obvious why any violation of neutral warranty should ensue in such circumstances as the above. Vide sub War Warranties, p. 387, infra.

(m) For examples of clauses expressly excluding risks arising from carriage of contraband of war, vide p. 124, supra.

CAPTURE AND CONFISCATION OF

PROPERTY ENGAGED IN

CARRYING DESPATCHES OR MILITARY PERSONS OF THE ENEMY.

The transport of hostile despatches, or of military persons in the service of the enemy, is regarded as a heinous offence against the law of nations. The injury likely to result from the carriage of a cargo of contraband articles is necessarily of a limited nature; but the transport of hostile despatches may affect perhaps the whole plan of campaign: while the presence of military persons with the forces of the enemy may indefinitely increase his powers of conducting warlike operations.

What are Despatches.-"The carriage of despatches," said Sir W. Scott, in The Atalanta (a)," is a service which, in whatever degree it exists, can only be considered in one character—as an act of the most noxious and hostile nature."

Despatches," observed the same learned judge, in The Caroline (b)," are all official communications of official persons on the public affairs of the government. The comparative importance of the particular papers," his lordship added, "is immaterial, since the Court will not construct a scale of relative importance, which, in fact, it has not the means of doing with any degree of accuracy or with satisfaction to itself; it is sufficient that they relate to the public business of the enemy, be it great or small. The true

criterion will be, are they on the public business of the state and passing between public persons for the public service ?" The conveyance of the despatches of an ambassador resident in a neutral country is, however, an exception to this rule. Despatches carried from the mother country to her colonies or foreign possessions are distinctly prohibited, a belligerent having the right to assume that such despatches are hostile to himself, inasmuch as they relate to the security of the enemy's possessions; but neutrals have a right to preserve their relations with the enemy, and no such presumption of hostility exists in the case of despatches of or to ambassadors resident in a neutral country, for the purpose of preserving friendly relations between the neutral state and that of the belligerent power to which such ambassadors owe allegiance. Confidence must needs be placed in the integrity of the neutral state; and persons discharging the functions of ambassadors are peculiarly objects of the protection and favour of the law of nations (c). This principle was, in The Maddison (d), held equally to apply to the carrying of despatches to a consul of the enemy resident in a neutral country. And, clearly, all papers found on board a neutral vessel sailing to or from a belligerent port, although of a public nature and relating to public affairs, will not of necessity be of a contraband quality; for if the person to whom they are committed be a neutral and not invested with a public character they are not despatches, nor is the carriage of them an offence (e). If a neutral vessel carrying despatches from the enemy to a dependency be seized on the voyage, but the dependency have meantime ceased to be a colony of the enemy, this circumstance will absolve the vessel from confiscation (ƒ).

(c) The Caroline, 6 Rob. 464.

(d) Edw. 224.

(e) The Rapid, Edw. 228.

(f) The Trendre Sostre, 6 Rob. 457.

In the familiar case of The Trent (g), commonly known at the time of the occurrence as the Mason and Slidell affair, the United States Government sought to establish the claim to an extreme exercise of belligerent rights in respect of the carriage by neutrals of hostile despatches and military persons. The case, shortly stated, is as follows:-The Trent was a British mail steamer bound from Havannah to England with mails and passengers. Amongst the latter were the persons named, proceeding as envoys from the Confederate States to Great Britain and France. When about nine miles from the coast of Cuba the vessel was approached by the United States cruiser San Jacinto, which fired a round shot in a direction obviously divergent from the course of The Trent, and shortly afterwards discharged a shell across her bows, the missile exploding half a cable's length from the steamer. A naval officer from the cruiser then boarded the steamer and demanded that Messrs. Mason and Slidell, with their two secretaries, should be given up. The officers of The Trent protested against the action of the cruiser, but ultimately, on a show of force being made, the persons indicated were allowed to be transferred to the cruiser, and they were subsequently imprisoned in a military fortress. The mail steamer proceeded on her voyage, and, on the facts becoming known in England, a demand was made to the United States Government for restoration of the prisoners and a suitable apology. In this demand the British Government was supported by France, Austria, Prussia, Italy, and Russia. It was urgently complained that this arbitrary act of the United States Government, in seizing non-combatants travelling under the protection of a neutral flag and bound to a neutral state, was unjustifiable and a breach of the common law of nations. The main contention of the captors in support of their illegal

(g) Parl. Papers, 1862, Vol. LXII.

action was, that the persons seized, and the despatches which they were believed to be carrying, were contraband of war, and therefore liable to seizure. It was not, however, attempted to justify the mode in which the alleged right of seizure had been exercised, and it was practically admitted that the steamer should properly have been brought into a United States port for adjudication. To the above contention it was replied, that whatever may be the law as regards naval and military persons, no single Admiralty decision, and no single expression on the part of any international jurist, could be cited in support of the argument that ambassadors or public officers, non-combatants, are liable to be regarded as contraband of war; and that in any case these persons were bound to a neutral destination. Further, that as to the despatches, neutral states have a perfect right to maintain friendly relations with belligerents; and that these despatches were under protection of the neutral flag and bound to a neutral destination. Ultimately the persons seized were released and allowed to proceed to their destination in a British vessel.

The interesting and important arguments arising out of this case are discussed at length in Kent's International Law, 2nd ed. pp. 357-364.

Who are Military Persons.-By naval and military persons is meant persons competent to take an active part in the prosecution of hostilities. Ambassadors or public persons holding civil appointments apparently do not, as we have seen above, come within this category, though an observation of Sir W. Scott, in The Orozembo, to be referred to presently (g), intimates a different conclusion. "As to the number of military persons necessary to subject the vessel to confiscation, it is difficult to decide; since fewer persons of high quality and character may

(g) Vide p. 210, infra.