dering an important safeguard against possible damage to themselves. It will probably be worth their while to make the concession rather than dislocate neutral commerce; but they cannot at one and the same time make it and retain the security derived from the stricter rule.

Our third and last head must now be dealt with. A neutral may not transport certain kinds of persons in the service of a belligerent. He is not forbidden to carry in his regular packet-boats individuals who pay for their berths in the usual way and come on board as ordinary passengers, even though they turn out to be officers of one or the other of the combatant powers. In the case of the Friendship, Lord Stowell declared that no British tribunal had ever gone the length of preventing a military officer in the service of the enemy from travelling in a neutral vessel if he went as an ordinary passenger, and at his own expense.' But naval or military persons coming on board as such, and travelling at the expense of a belligerent government, are carried by a neutral merchantman at the risk of seizure and confiscation. Even when it is the ordinary business of the vessel to carry passengers, a contract of hiring made with the agent of one of the warring powers would probably lead to her condemnation in the event of capture; and there can be no doubt about the fate of a mere cargo-boat so hired, and used for the conveyance of belligerent forces or officials. In most of the reported cases a special contract of the nature described had been entered into and was made one of the chief grounds of condemnation. The Orozembo, for instance, a neutral American vessel, was condemned by an English Prize Court because the owner or his agents had agreed with the government of Holland, a power at war with Great Britain, to let the vessel for the transportation of three military officers of distinction from Europe to Batavia. The number of persons carried under such circumstances is immaterial. A whole regiment might be far less

1 Robinson, Admiralty Reports, VI., 429.

2 Ibid., VI., 430–439.

valuable to a belligerent than one or two skilled commanders. If one side deems them important enough to be sent out at the public expense, the other side is justified in decreeing the forfeiture of the vessel which carries them. The transportation of civil officials would probably entail the same consequences as the transportation of fighting men. But just as diplomatic despatches are privileged, so also are diplomatic persons. Neutral vessels may freely carry representatives of the belligerent governments to and from their posts in neutral countries.

The most important and the most frequently performed unneutral services are arranged under the three heads we have just enumerated. But the classification is by no means exhaustive. There are other ways of giving unlawful aid to belligerents besides those we have been considering. The exigencies of warfare are so numerous and so changeful that no one can describe beforehand every possible mode in which a neutral ship may make herself into a transport in the service of one or other of the belligerents. The principle of the law is clear. It forbids anything approaching to an actual participation in the war. The application of the principle must be settled in each case as it arises. Among the acts which it assuredly covers we may mention transferring provisions, coals or ammunition from one belligerent ship to another at sea, and showing the channel to a fleet advancing for a hostile attack.

§ 283.

The penalty for unneutral services and the essentials of liability to it.

We have already seen that the ordinary penalty for unneutral service is the confiscation of the peccant ship and any part of the cargo which belongs to her owner. Her liability to capture and condemnation commences when she commences the unlawful services, and continues either till the termination of her voyage, or till she has delivered the forbidden despatches, deposited the forbidden persons, or

finished the performance of the forbidden acts. But in some cases the offence is of such a character that it is possible to commit it inadvertently. This is true in a special manner of carrying despatches, which may easily be disguised as private communications and palmed off upon unsuspecting skippers. The law demands a reasonable amount of caution from the neutral shipmaster. He is bound, for instance, to be more careful in a belligerent than in a neutral port; and if the communication he is asked to convey is sent by or addressed to a known agent of a warring government, he must require stronger assurances of its innocuous character than if it purported to be passing between private persons. But when, in spite of due precautions, he is deceived, his ship will escape confiscation. This was decided by the case of the Rapid,1 which was an American vessel plying between two neutral ports, but found to have on board letters containing important information for the belligerent government of Holland. The British Prize Court, however, released her on the ground that the communications appeared on the outside to be private and were given by a private person in a neutral port to be carried to another private person in another neutral port. But in the case of the Susan 2 ignorance of the nature of the despatches, unaccompanied by caution, was not held sufficient to cause the release of the vessel. To ensure condemnation fraud on the part of the captain is not necessary. It is enough if he knows the character of the documents he carries, or even if he has neglected to exercise due care in order to assure himself that they are not forbidden communications. Fraud and fraudulent concealment will, however, be visited with the severest penalty possible, whereas blundering but honest incapacity is unlikely to lead to anything more than the loss of the ship. It is clear that the knowledge of the shipmaster is an

1 Edwards, Admiralty Reports, p. 228.

2 Robinson, Admiralty Reports, VI., 461, note.

important factor in the determination of a large class of cases. But even more important is the character of the contract made with regard to the vessel and the service it is expected to perform. Whenever it can be shown that the neutral owner or shipmaster has entered into a special agreement with a belligerent government or its agent to let out his vessel for the purpose of doing any of the acts described in the preceding section, the vessel becomes ipso facto a transport in the service of that belligerent and is subject to condemnation if captured by the cruisers of the other side. This kind of contract seldom exists with regard to the conveyance of despatches, which are so small in bulk, so easy of transmission, and so readily disguised as innocent communications, that neutral captains may often be induced to take them without any agreement to put their vessels at the disposal of a warring power. But the contract in question is frequently found when naval or military men, or official personages, are carried, and when it exists the number of such individuals is immaterial. Indeed it might be argued that, even if none were on board at the moment of capture, the vessel was lawful prize, provided that the contract still held good and she was on her way to perform any part of it.

A careful examination of the recorded cases shows that we may resolve the vessels performing unneutral service into two classes. In the first class we may place all neutral ships actually engaged as transports in the service of a belligerent. Such transports were defined by Lord Stowell in the case of the Friendship as "vessels hired by the government to do such acts as shall be imposed upon them, in the military service of the country." But in the case of the Carolina 2 he took a wider view, and decided that a neutral Swedish ship which had been forced to act as a French transport was not exempt from condemnation by reason of the duress that had been applied to her. It did 2 Ibid., IV., 260.

1 Robinson, Admiralty Reports, VI., 425.

not appear that the master had made any remonstrance against the service on which he was employed, or refused to victual and navigate his ship. Undoubtedly his proper course would have been to surrender his vessel under protest to the French authorities as a prize, leaving it to his own government to demand reparation for her unlawful detention. Yet it may be questioned whether the doctrine that the neutral captain cannot be permitted to plead force as an excuse would hold good to-day. The distinction which Lord Stowell refused to draw between voluntary and involuntary action would probably be drawn in a modern Prize Court. But the rule that confiscation must follow capture, when there is an actual entry into the enemy's service under the provisions of a contract made between him and the neutral, remains unchallenged, and would certainly be applied in any future maritime struggle. The second class of vessels engaged in the performance of unneutral acts consists of those which have not entered as transports into the service of a belligerent, but are nevertheless seized while giving him forbidden assistance. Contract is absent in these cases. No special agreement to place the ship at the disposal of a warring power has been made by the neutral owner or captain. But the absence of anything of the kind will not save the vessel from condemnation in the event of capture, if those who have control of her knowingly do any of the prohibited Their knowledge is the important point. Prize Courts assume that they possess it, and put upon them the burden of proof of ignorance. They must, however, do more than show that they were not aware of the true character of the persons or papers entrusted to their care. It is necessary for them to prove that they took all reasonable precautions to avoid error. Ignorance pure and simple will not avail to prevent forfeiture. Excusable ignorance is the only ground for leniency.1

acts.

1 For an excellent summary of the cases see Dana's note on Carrying Hostile Persons or Papers, in his ed. of Wheaton's International Law, pp. 637–644.