band. participating in any degree in a communication of the Quasi-contranature of hostility against you must be presumed. The person too employed in the correspondence is not an executive officer of the Government acting simply in the conduct of its own affairs within its own territories, but an ambassador resident in a neutral state for the purpose of carrying on the communications of peace and amity for the interests of his own country primarily, but at the same time for the furtherance and protection of the interest, which the neutral country also has in the con tinuance of these relations. The neutral violates no duty in bearing despatches which, as far as he knows, may be presumed to be of an innocent nature and in the maintenance of a pacific connection; but, in so doing, he is fairly subject to the inconvenience of having his vessel brought in for examination." The ship and cargo were restored on payment of captor's expenses. Despatches. II. CONVEYANCE OF PASSENGERS. In judging of the conduct of a neutral vessel, on board Passengers. which subjects of the enemy may be found as passengers, a distinction is naturally made as to their character- Character. those in a mere civil capacity being in general only subject to a temporary detention, accompanied however with loss of property, those in the actual military service of the enemy being detained as prisoners of war: in the case of persons of the latter description it is immaterial what may be the number conveyed, as fewer persons of Number. Quasi-contra- high character may be of more importance than a greater band. Passengers. Transport. number of persons of lower condition.1 A more favourable consideration is applied to the case of invalided soldiers or disabled sailors, and to that even of a military officer proceeding on a voyage as an ordinary passenger and at his own expense.2 In their case, as in that of civilians, much would depend upon the circumstances under which they were travelling and their connection with the belligerent government. In the case of the Friendship, there were on board ninety passengers, French mariners shipped under the direction of the French minister in America on a voyage from Baltimore to Bordeaux; the cargo consisting of a few articles of commerce, and being merely a nominal one. Sir Wm. Scott, having observed that he knew of no precise technical definition of transport vessels more than this, that they were vessels hired by the Government to do such acts as should be imposed upon them in the military service of the country, expressed his opinion that this vessel was to be considered as a French transport, and that it was not necessary to prove that these parties were going on an immediate active expedition. Looking at the description given of the men on board, he was satisfied that they were as effective members of the French marine as any could be, and that their conveyance could not be an innocent occupation of the vessel. He, therefore, condemned the ship and cargo. 4 The case of the Orozembo was that of a vessel which had been engaged for the purpose of conveying three military officers and two persons in civil departments to 1 Orozembo, 6 Rob. 434. 3 6 Rob. 420. 4 6 Rob. 430. band. the settlement of the enemy. Of the nature of the service Quasi-contrain which he was engaged', the master, it appeared, was Passengers. entirely ignorant. Sir Wm. Scott, with reference to the military officers, Military. observed, that the principle on which he determined the such case was, that the conveying persons to the colony of an enemy, who are there to take on themselves the exercise of their military functions, will lead to condemnation, and that the Court is not to scan with minuteness the number of persons that are so carried. With reference to the civilians on board, he remarked 2 Civilians. that, in that case, it was not necessary to determine whether the principle would apply to them alone: on principle, however, it appeared to be but reasonable that, whenever it is of sufficient importance to the enemy that such persons should be sent out on the public service at the public expense, it should afford equal ground of forfeiture; nor could he admit the plea of ignorance in extenuation of the offence. He therefore pronounced that the vessel was liable to be considered as a transport in the service of the enemy, and, as such, subject to condemnation. III. CONTRABAND AS DECLARED BY TREATY. The subject of contraband has formed the substance of Treaties. several articles in treaties of peace and commerce entered into at different times between this country and foreign powers. Extracts from treaties containing these articles. will be found in the Appendix. The course of events which have occurred in the last sixty or seventy years, and the general prevalence of 2 Id., 6 Rob. 434. 1 Orozembo, 6 Rob. 433. Treaties. hostilities, during the early part of that time, have in many cases put an end to particular treaties, it being a general principle that the intervention of war between two countries determines all treaties entered into between them. A reference to particular treaties is, however, sometimes necessary in illustration of the reports of cases, the decision of which may have depended upon the construction of them. Many of the cases in this volume, extracted from the papers of Sir George Lee, afford proofs of this necessity. Some of these treaties, again, from the peculiar relations between the countries, still continue in force, as is the case with Denmark and Sweden. The learned Judge of the Admiralty Court, Dr. Lushington, in giving judgment in the case of the Franciska, Jan. 27. 1855, declared the treaties of 1670 with Denmark, and of 1661 with Sweden, to be still in force. In other cases they have been confirmed and revived by express reference in later treaties between the same powers. Thus, in the additional articles between this country and Spain, signed at Madrid, August 28. 1814, It is agreed that, "All the Treaties of Commerce which at that period (viz. previously to the year 1796) subsisted between the two nations are hereby ratified and confirmed." 2 In the treaty with Turkey, concluded at the Dardanelles Jan. 5. 18098, Art. 4. It is agreed that, "The Treaty of Capitulation agreed upon in the Turkish year 1086, A. D. 1675 ... shall continue to be observed and maintained, as if the 1 Frau Ilsake, 4 Rob. 64. 2 Hertslet, 2 v. p. 271. * Id. p. 373. the relations between the two countries had suffered no Treaties. interruption;" Or they have been referred to in, and made parts of, treaties between different states. Thus, in the treaty between Great Britain and Mexico London, Dec. 26. 1826', it is stipulated that the subjects of the former country shall enjoy all the privileges and immunities they were entitled to under the convention with Spain of the 14th July, 1786; Or, lastly, the reference may be still more general, as in the treaty with Portugal, signed at Rio de Janeiro, 19th Feb. 1810, which stipulates in the 28th Art., "That under the name of contraband shall be comprehended, not only arms, &c., . . . . but generally all other articles that may have been specified as contraband in any former treaties concluded by Great Britain or by Portugal with other powers.' 1 Hertslet, 3 v. p. 253. Hertslet, 2 v. p. 59., and post App. p. 248. The following is a List of the Articles referred to under the Head of Contraband, in the Treaties from which Extracts will be found in the Appendix, p. 207. |