not satisfy the joint commission appointed under the seventh article of the treaty of 1794 between Great Britain and the United States to adjudicate upon the claims of American citizens who complained of losses by illegal capture. Compensation was granted to the owners of the vessels and cargoes seized under the obnoxious Orders in Council.1 These events may be held to have established the position that there can be no middle term between contraband and non-contraband. Goods carried by neutrals to unblockaded belligerent ports are either contraband, in which case they may be confiscated, or non-contraband, in which case they may not be molested. Apart from special treaty stipulations preemption to be legal must be an indulgence granted to neutral traders by a belligerent who does not insist upon his full right of seizure and condemnation.

1 Wheaton, International Law, §§ 490–501; Treaties of the United States, pp. 384, 385.

CHAPTER VII.

designation of un

UNNEUTRAL SERVICE.

§ 282.

THERE are certain acts which neutral merchantmen cannot perform for one belligerent without making themselves The acts which are amenable to capture and condemnation by the forbidden under the other. These acts are generally discussed in neutral service. connection with the carriage of contraband; but of late years a few publicists have begun to see that there is a wide difference between the two misdeeds. Yet the idea that they must be classed together is still strong. Hall speaks of them as Analogues of Contraband,1 and the Maritime Code of the Institut de Droit International deals with them along with contraband trade under the title of Des transports Interdits durant la Guerre. Dana and Kleen see their real character, and point out that it is special and peculiar. In truth between the carrying of contraband and the performance of what we may term Unneutral Service there is a great gulf fixed. The nature of the latter will appear as we examine the acts which are included under it; and when we have dealt with them in detail we shall be in a position to show how they differ from the offence with which they are usually confounded.

1 International Law, Pt. IV., Ch. vii.

2 Tableau Général, pp. 201, 202.

8 Note 228 to Wheaton's International Law.

4 Contrebande de Guerre, pp. 223–232.

A neutral ship is forbidden to

1. Transmit certain kinds of signals or messages for a belligerent.

2. Carry certain kinds of despatches for a belligerent. 3. Transport certain kinds of persons in the service of a belligerent.

The penalty attached to the performance of these acts is confiscation of the vessel concerned in them, and confiscation of the cargo also in cases where its owners "are directly involved in the knowledge and conduct of the guilty transaction." And this penalty is inflicted without regard to the neutral or belligerent character of the port to which the ship is bound.

We will take the acts of unneutral service in the order we have enumerated, and deal first with the transmission of signals or messages for a belligerent. If a neutral vessel becomes a vehicle for carrying between two portions of a belligerent fleet messages bearing on the conduct of the war, or signals such messages from one to the other, she is performing an act so contrary to the nature of neutrality, that the other belligerent may consider her as engaged in the service of his enemy and treat her accordingly while she remains so employed. The same may be said of signalling or bearing messages between a fleet and a land force, or laying a cable to be used mainly or exclusively for warlike purposes. Assistance of this kind goes far beyond the ordinary offices of friendship and humanity. It amounts to a participation in the war and is regarded as such by the combatant who suffers from it.

We have next to consider the carrying of certain kinds of despatches for a belligerent. All communications are not forbidden, but only those which may be deemed official,

1 Judgment of Lord Stowell in the case of the Atalanta; see Robinson, Admiralty Reports, VI., 460.

and even from these diplomatic despatches are excepted, when the neutral carries them between a belligerent government and its minister in a neutral country, or between a neutral government and its minister in a belligerent country. This exception and the reasons for it were admirably stated in the case of the Caroline,1 an American vessel captured by a British cruiser in 1808, when on a voyage from New York to Bordeaux. She carried a cargo of cotton, but also diplomatic and consular despatches from the French minister at Washington and a French consul in America to the French Government at home. Lord Stowell in giving judgment laid down as a general rule that the carrying of despatches for the enemy by a neutral was illegal; and defined despatches as "official communications of official persons, on the public affairs of the government." But he went on to say that "the neutral country has a right to preserve its relations with the enemy, and you are not to conclude that any communication between them can partake, in any degree, of the nature of hostility against you." That being the case, there was no ground for saying that the neutral carrier had violated his duty by bearing despatches presumably of an innocent nature. The ship was, therefore, restored; and, in a subsequent case, in which consular despatches alone were concerned, a similar decision was rendered. We may sum up the law of the matter, as given in unchallenged decisions of Prize Courts, by declaring that neutrals may not carry military or naval despatches for the belligerents, or despatches between a belligerent government and the officials of its colonies and dependencies, but they may carry diplomatic and consular despatches, and also private letters and communications relating to business affairs.

This brings us to the peculiar position of neutral mailsteamers and other vessels carrying mails by agreement

1 Robinson, Admiralty Reports, VI., 464–470.

The Madison; see Edwards, Admiralty Reports, p. 224.

with a neutral government. Their owners and captains cannot be held responsible for the nature of the numerous communications they carry. They would grossly violate the trust reposed in them if they took steps to become acquainted with the contents of the letters under their charge. Knowledge, therefore, cannot be imputed to them, should noxious despatches happen to be on board; and their vessels are not held liable to confiscation merely because of the presence of such despatches in the mail-bags, though the immunity would not extend to other forms of unneutral service. Thus far the common law of nations operates to protect the ordinary vehicles of international communication. But in recent times a usage has grown up of exempting packet-boats, not merely from condemnation, but also from visit, search and capture.1 This further immunity has, however, been conceded by belligerents as a matter of grace and favor. There is little doubt that it will continue to exist; but it has not at present become a right which neutrals are entitled to claim. When the United States granted it in 1862, they added the proviso that "simulated mails verified by forged certificates and counterfeit seals" should not be protected thereby; and in 1870 France insisted upon the condition that an agent of the neutral state should be in charge of the mail-bags and declare them to be free from noxious communications. It is obvious that these precautions against the use of the mails for the conveyance of intelligence by the enemy are of little practical utility. The more valuable the information, the more innocent it would be made to appear. The word of a postal clerk of the neutral government might be given with the most perfect honesty, but could afford no real guarantee of the harmlessness of each unit among hundreds of thousands of communications, not one of which he had read. In granting immunity from search to mailsteamers belligerents must recognize that they are surren

1 Wheaton, International Law (Dana's ed.), p. 659, note.