Carriage matic Persons for the Enemy (Case of the being done, or at least repeated, by enforcing the penalty of confiscation," said Sir William Scott.1 § 409. It must be specially observed that diplomatic agents sent by the enemy to a neutral State make an exception to the rule that neutral vessels may be punished for carrying agents sent by the enemy. The reason is that neutrals have, as shown above in "Trent.") § 319, a right to demand that their intercourse with either belligerent shall not be suppressed, and that the sending and receiving of diplomatic agents is necessary for such intercourse.2 The importance of this exception became apparent during the Civil War in America. On November 8, 1861, the Federal cruiser "San Jacinto" stopped the British mail steamer "Trent" on her voyage from Havana to the British port of Nassau, in the Bahamas, forcibly took off Messrs. Mason and Slidell, together with their secretaries, political agents sent by the Confederate States to Great Britain and France, and then let the vessel continue her voyage. Great Britain demanded their immediate release, and the United States at once granted this, although the ground on which release was granted was not identical with the ground on which release was demanded. The Government of the United States maintained that the removal of these men from the vessel without bringing her before a Prize Court for trial was irregular, and, therefore, 1 See Phillimore, III. § 274, and Holland, Prize Law, §§ 90–91. Hall, § 249, p. 700, note 2, reprobates the British practice. During the Russo-Japanese War only one case of condemnation of a neutral vessel for carrying persons for the enemy is recorded, that of the "Nigretia," a vessel which endeavoured to carry into Vladivostock the escaped captain and lieutenant of the Russian destroyer "Ratzoporni "; 2 This, however, does not prevent a belligerent from capturing and retaining as prisoner of war such diplomatic envoy of the enemy as is found on his own or on enemy territory or on his own or on enemy vessels. See above, § 117, and vol. I. § 398. not justified, whereas release was demanded on the ground that a neutral vessel could not be prevented from carrying diplomatic agents sent by the enemy to neutrals. Now, diplomatic agents in the proper sense of the term these gentlemen were not, because, although they were sent by the Confederate States, the latter were not recognised as such, but only as a belligerent Power. Yet these gentlemen were political agents of a quasi-diplomatic character, and the standpoint of Great Britain was for this reason perhaps correct. The fact that the Governments of France, Austria, and Prussia protested through their diplomatic envoys in Washington shows at least that neutral vessels may carry unhindered diplomatic agents sent by the enemy to neutrals, however doubtful it may be whether the same is valid regarding agents with a quasi-diplomatic character.2 of De § 410. Either belligerent can punish neutral Carriage merchantmen for carrying political despatches from spatches or to the enemy, and especially such as are in relation for the Enemy. to the war. But to this rule there is an exception, on the ground that neutrals have a right to demand that their intercourse with either belligerent be not suppressed. A neutral vessel cannot be punished for carrying despatches from the enemy to neutral Governments, and vice versa,3 and, further, despatches from the enemy Government to its diplomatic agents and consuls abroad in neutral States and vice versa.1 But it must be specially observed that despatches 1 That insurgents who are recognised as a belligerent Power can send political but not diplomatic agents was shown above, vol. I. § 362. 2 See Parliamentary Papers, 1862, North America, N. 5; Marquardsen, Der Trent Fall (1862); Wharton, § 374; Phillimore, II. The Caroline, 6 Rob. 461. from the enemy Government to political agents abroad without diplomatic character, and vice versâ, are not privileged, nor are despatches between a belligerent and his ally. However, the mere fact that a neutral vessel has political despatches to or from the enemy on board does not by itself prove that she is carrying them for and in the service of the enemy. Just as in the case of certain enemy persons on board, so in the case of despatches, the vessel is only considered carrying them in the service of the enemy if either she knew of their character and has nevertheless taken them on board, or she was directly hired for the purpose of carrying them. Thus, the American vessel "Rapid," which was captured in 1810 during the war between Great Britain and the Netherlands, on her voyage from New York to Tonningen, for having on board a despatch for a Cabinet Minister of the Netherlands hidden under a cover addressed to a merchant at Tonningen, was released by the Prize Court. On the other hand, the "Atalanta," which carried despatches in a tea chest hidden in the trunk of a supercargo, was condemned.3 4 Several writers assert an exception to the rule in favour of packets of a regular mail line and of vessels of a similar kind which have, according to International conventions and municipal regulations, to accept for transport all letters and parcels delivered to them by the post offices of the ports at which they 1 Edwards, 228. 26 Rob. 440. 3 British practice seems un. settled on the question whether the vessel must know of the character of the despatch which she is carrying. In spite of the case of the "Rapid," quoted above, Holland, Prize Law, § 100, maintains that ignorance of the master of the vessel is no excuse, and Phillimore, III. § 272, seems to be of the same opinion. 4 See, for instance, Calvo, V. § 2808, and Hall, § 252. call. But I am not sure that a rule regarding this exception is universally recognised by custom.1 II CONSEQUENCES OF CARRIAGE OF PERSONS AND See the literature quoted above at the commencement of § 407. for and Des for the § 411. It is generally recognised by theory and Capture practice that a neutral vessel carrying persons and carrying despatches for the enemy may be captured on the Persons Open Sea and in the territorial maritime belt of either patches belligerent. Here, too, capture is allowed only as Enemy. long as the vessel is in delicto,2 that is, during the time from her departure with the persons or despatches up to the moment when she has brought them to the enemy. No seizure is, therefore, admissible on the return voyage. It must be specially observed that mail-steamers are on principle not exempt from capture for carriage of analogous of contraband. Nor are in strict law mail-bags of such steamers exempt from search in case the vessels are searched. But there is a tendency to create an alteration of the strict law. Thus, France, in 1870, during the FrancoGerman War, ordered her officers not to search the mail-bags of neutral mail-boats provided these vessels had an agent of the flag-State on board who asserted that no enemy despatches were in the bag. And §17 of the "Règlement International des Prises maritimes," adopted by the Institute of International Law 1 See below, § 411. 2 Whether those Prize Courts which apply the doctrines of continuous voyages and of continuous transports to the carriage of con- Penalty ing Per sons and Despatch Enemy. at its meeting at Heidelberg in 1887,1 prohibits even § 412. It is generally recognised that a neutral for carry. vessel captured for carriage of persons or despatches in the service of the enemy may be confiscated. es for the Moreover, according to British practice, such part of the cargo as belongs to the owner of the vessel is likewise confiscated. There is no doubt that, if the vessel is not found guilty of carrying persons or despatches in the service of the enemy, and is, therefore, not condemned, the Government of the captor can nevertheless retain the persons as prisoners of war and confiscate the despatches, provided the p. 218. 2 See Mountague Bernard, See Annuaire, IX. (1887-88), of the " Smolensk," see above, Neutrality of Great Britain during 3 See Lawrence, War, p. 195. |