employed to carry them; and if any privity subsists between the owners of the cargo and the master, they are involved by implication in his delinquency. If the cargo be the property of the proprietor of the ship, then, by the general rule, ob continentiam delicti, the cargo shares the same fate, and especially if there was an active interposition in the service of the enemy, concerted and continued in fraud. (b)

A distinction has been made between carrying despatches of the

enemy between different parts of his dominions and carry*153 ing despatches of an ambassador from a neutral country to his own sovereign. The effect of the former despatches is presumed to be hostile; but the neutral country has a right to preserve its relations with the enemy, and it does not necessarily follow that the communications are of a hostile nature.1 Ambas

(b) The Atalanta, 6 C. Rob. 440.

1 The Trent Affair. — In November, 1861, Captain Wilkes, of the United States war-steamer San Jacinto, after firing a round shot and a shell, boarded the English mail-packet Trent, in Old Bahama Channel, on its passage from Havana to Southampton, and by force carried off Messrs. Mason and Slidell, two rebel ministers from the Confederate States, so called, who had been taken on board as passengers bound for England. Mason and Slidell were conveyed to the United States, and committed to prison; but after a formal requisition by Great Britain, declaring the capture to be illegal, they were surrendered by the federal government. Mr. Seward took the ground that the Southern emissaries and their despatches were contraband of war, and that the Trent might properly have been carried into port and condemned as prize. If such a condemnation had taken place, it was intimated that, as there was no direct process in prize courts against contraband persons, the adjudication against the ship would have carried the right to detain the persons for carrying whom she was condemned, as an indirect consequence. But as the ship was released by Captain Wilkes without necessity, and partly out

of consideration for her innocent passengers, the capture was waived while incomplete, and the prisoners must therefore be released also. The principle was thought to be similar to the denial of the right of belligerents to search neutral vessels which the American government had always made. Mr. Seward to Lord Lyons, Dec. 26, 1861.

The British government did not acquiesce in these propositions, but denied that the conveyance of public agents of this character from Havana to St. Thomas on their way to Great Britain and France, and of their credentials or despatches (if any) on board the Trent, was or could be a violation of the duties of neutrality on the part of that vessel; and both for that reason, and also because the destination of these persons and despatches was bona fide neutral, it was thought certain that they were not contraband. The government further declared that they would not acquiesce in the capture of any British merchant ship in circumstances similar to those of the Trent, even though it was brought before a prize court. Earl Russell to Lord Lyons, Jan. 23, 1862.

Mr. Lawrence thinks that the same

sadors resident in a neutral country are favorite objects of the protection of the law of nations, and their object is to preserve the relations of amity between the governments; and the presumption is, that the neutral state preserves its integrity, and is not concerned in any hostile design. (a)

3. Right of Search. In order to enforce the rights of belligerent nations against the delinquencies of neutrals, and to ascertain the real as well as assumed character of all vessels on the high seas, the law of nations arms them with the practical power of visitation and search. The duty of self-preservation gives to belligerent nations this right. It is founded upon necessity, and is strictly and exclusively a war right, and does not rightfully exist in time of peace, unless conceded by treaty. (b) 2 All writers upon the law

(a) The Caroline, 6 C. Rob. 461; Martens, Summary, b. 7, c. 13.

(b) Le Louis, 2 Dods. 248; The Antelope, 10 Wheaton, 119. Yet the British Parliament, by statute, in August, 1839, in order more effectually to suppress the

principle of the jus belli which subjects a neutral to confiscation for carrying military officers, applies to the carriage of important persons in the civil service. The British claim to take their sailors out of American ships stood on wholly different grounds. Lawrence's Wheaton, app. 3, pp. 955, 956, and n. 72, pp. 217, 218.

Mr. Dana thinks that this case can be considered as having settled but one principle, and that one no longer disputed that a public ship, though of a nation at war, cannot take persons out of a neutral vessel at sea, whatever may be the claim of her government on those persons. Wheat. Dana's note 228.

Professor Mountague Bernard, after stating the case and giving the despatches, comes to the conclusion that a neutral ship conveying persons in the enemy's employment, whether military or civil, is not liable to condemnation unless she is serving the enemy as a transport, and so as to assist, substantially, though not perhaps directly, his military operations. If the enemy has not the actual control and disposal of the ship by any contract,

he thinks that it must be proved that the service performed was in its nature such as is rendered by a transport, and that there should be evidence of intention or knowledge from which intention may be reasonably inferred, on the part of the owner or his agent, the master. He thinks the rules of contraband inapplicable, and that the fact that the voyage is to end at a neutral port, though not conclusive, is a strong argument against condemnation, especially if coupled with proof that the ship was pursuing her ordinary employment. Neutrality of Great Britain during the Am. Civil War, ch. 9, pp. 224, 225.

For further discussion of the subject, see Mr. Sumner's speech in the United States Senate, Jan. 9, 1862; M. Thouvenel's despatch to M. Mercier, of Dec. 3, 1861; Ann. Reg. 1861, p. 252, and Pub. Doc. 288; pamphlets by Professor Parker (Cambridge, 1862), M. Hautefeuille, and Professor Mountague Bernard (Oxford, 1862); Woolsey, Int. Law, § 184; Historicus, Int. Law, 185; Lord Mackenzie, Roman Law, 60.

The British government have aban

of nations, and the highest authorities, acknowledge the right in time of war as resting on sound principles of public jurisprudence, and upon the institutes and practice of all great maritime powers. (c) And if, upon making the search, the vessel be found employed in contraband trade, or in carrying enemy's property, or troops, or despatches, she is liable to be taken and brought in for adjudication, before a prize court.

Neutral nations have frequently been disposed to question and resist the exercise of this right. This was particularly the case with the Baltic confederacy during the American war, and with the convention of the Baltic powers, in 1801. The right of search slave-trade, and especially as against Portugal, a power that had grossly violated her treaty with England on that subject, authorized the power of visitation and search in time of peace. The British government disclaim the right of search in time of peace, but they claim at all times the right of visit, in order to know whether a vessel, pretending, for instance, to be American, and hoisting the American flag, be really what she seems to be. Lord Aberdeen's Despatch of December, 1841, to the American Minister, Mr. Stevenson. But the government of the United States do not admit the distinction between the right of visitation and the right of search. They consider the difference to be one rather of definition than principle, and that it is not known to the law of nations. They will not admit the exercise of the claim of visit to be a right; while the British government concedes that if, in the exercise of the right of visit to ascertain the genuineness of the flag which a suspected vessel bears, any injury ensues, prompt reparation would be made. The mutual right of visitation and search in reference to the slave trade has even been conceded by the European governments of Austria, France, Great Britain, Prussia, and Russia, who were parties to the Quintuple Treaty at London, of December, 1841. See Mr. Webster's Despatch, as American Secretary of State, to Mr. Everett, the American Minister at London, of March 28, 1843. This treaty was subsequently ratified by all the contracting parties except France, who remained bound only to a restrictive right of search under the conventions of 1831 and 1833. The inter-visitation of ships at sea is a branch of the

law of self-defence, and is, in point of fact, practised by the public vessels of all nations, including those of the United States, when the piratical character of a vessel is suspected. The right of visit is conceded for the sole purpose of ascertaining the real national character of the vessel sailing under suspicious circumstances, and is wholly distinct from the right of search. It has been termed, by the Supreme Court of the United States, the right of approach for that purpose; (The Marianna Flora, 11 Wheaton, 1, 43;) and it is considered to be well warranted by the principles of public law and the usages of nations. Bynk. Q. J. Pub. lib. 1, c. 114, s. p.

(c) Vattel, b. 3, c. 7, sec. 114; Ord. de la Marine, of 1681, art. 12; Hübner, de la Saisie des Bâtimens Neutres; The Maria, 1 C. Rob. 340; Le Louis, 2 Dods. 245; The Marianna Flora, 11 Wheaton, 42.

doned the claim of a right of visitation in time of peace for the purpose of verifying the flag, except so far as allowed by treaty. Historicus, Int. Law, 173, where

the whole subject is discussed. Hansard, cli. 1307, 2082; Ann. Reg. 1858, p. 188. Treaty with Great Britain of May 25, 1862, 12 U. S. St. at L. 279.

was denied, and the flag of the state was declared to be a substitute for all documentary and other proof, and to exclude all right of search. Those powers armed for the purpose of defending their neutral *pretensions; and England did not hesi- *154 tate to consider it as an attempt to introduce, by force, a new code of maritime law inconsistent with her belligerent rights, and hostile to her interests, and one which would go to extinguish the right of maritime capture. The attempt was speedily frustrated and abandoned, and the right of search has, since that time, been considered incontrovertible. (a)

The whole doctrine was ably discussed in the English High Court of Admiralty, in the case of the Maria, (b) and it was adjudged, that the right was incontestible, and that a neutral sovereign could not, by the interposition of force, vary that right. Two powers may agree among themselves that the presence of one of their armed ships, along with their merchant ships, shall be mutually understood to imply that nothing is to be found in that convoy of merchant ships inconsistent with amity or neutrality. (c) But no belligerent power can legally be compelled, by mere force, to accept of such a pledge; and every belligerent power who is no party to the agreement has a right to insist on the only security known to the law of nations on this subject, independent of any special covenant, and that is the right of personal visitation and search, to be exercised by those who have an interest in making it. The penalty for the violent contravention of this right, is the confiscation of the property so withheld from visitation; and the infliction of this penalty is conformable to the settled practice of nations, as well as to the principles of the municipal jurisprudence of most countries in Europe. There may be cases in which the master of a neutral ship may be authorized, by the natural right of self-preservation, to defend himself against extreme violence threatened by a cruiser, grossly

(a) In the convention between England and Russia, on the 17th of June, 1801, Russia admitted the belligerent right of search, even of merchant vessels navigating under convoy of a ship of war, provided it was exercised by a ship of war belonging to government.

(b) 1 C. Rob. 340.

(c) In the treaty of commerce between the United States and the Republic of Chili, in 1832, it was agreed, that the right of visitation and search should not apply to vessels sailing under convoy. So, also, in the convention between the United States and the Peru-Bolivian Confederacy, of 1838, art. 19.

VOL. I.

11

[161]

*

abusing his commission; but, except in extreme cases, a merchant vessel has no right to say for itself, and an armed vessel has no right to say for it, that it will not submit to visitation or search, or be carried into a proximate port for judicial *155 inquiry. Upon these principles, a fleet of Swedish merchant ships, sailing under convoy of a Swedish ship of war, and under instructions from the Swedish government to resist, by force, the right of search claimed by British lawfully commissioned cruisers, was condemned. The resistance of the convoying ship was a resistance of the whole convoy, and justly subjected the whole to confiscation. (a)

The doctrine of the English admiralty on the right of visitation and search, and on the limitation of the right, has been recognized, in its fullest extent, by the courts of justice in this country. (b) The very act of sailing under the protection of a belligerent or neutral convoy, for the purpose of resisting search, is a violation of neutrality. The Danish government asserted the same principle in its correspondence with the government of the United States, and in the royal instructions of the 10th of March, 1810; (c) and none of the powers of Europe have called

(a) The Maria, 1 C. Rob. 340; The Elsabe, 4 C. Rob. 408.

(b) The Nereide, 9 Cranch, 427, 438, 443, 445, 453; The Marianna Flora, 11 Wheaton, 42. The government of the United States admits the right of visitation and search by belligerent government vessels of their private merchant vessels, for enemy's property, articles contraband of war, or men in the land or naval service of the enemy. But it does not understand the law of nations to authorize, and does not admit, the right of search for subjects or seamen. England, on the other hand, asserts the right to look for her subjects on the high seas, into whatever service they might wander, and will not renounce it. The objections to the British claim, on the ground of public law and policy, were stated with great force and clearness, in 1818, by the American Minister in London to Lord Castlereaghi. Rush's Memoranda, 181-193, 279-283. The claim of Great Britain to the right of search, on the high seas, of neutral vessels, for deserters and other persons liable to military and naval service, has been a question of animated discussion between that government and the United States. It was one principal cause of the war of 1812, and remains unsettled to this day. In the discussions in 1842, between Lord Ashburton and Mr. Webster, relative to the boundary line of the State of Maine, the American Minister incidentally discussed the subject, and intimated that the rule hereafter to be insisted on would be, that every regularly documented American merchant vessel was evidence that the seamen on board were American, and would find protection under the American flag.

(c) 4 Hall's Law Journal, 263; Letters of Count Rosenkrantz to Mr. Erving, 28th and 30th June, and 9th July, 1811.