§ 284.

The distinction offences of carry

between

the

ing contraband unneutral service.

and engaging in

We are now in a position to distinguish clearly between the offence of carrying contraband and the offence of engaging in unneutral service. They are unlike in nature, unlike in proof and unlike in penalty. To carry contraband is to engage in an ordinary trading transaction which is directed towards a belligerent community simply because a better market is likely to be found there than elsewhere. To perform unneutral service is to interfere in the struggle by doing in aid of a belligerent acts which are in themselves not mercantile, but warlike. In order that a cargo of contraband may be condemned as good prize, the captors must show that it was on the way to a belligerent destination. If without subterfuge it is bound to a neutral port, the voyage is innocent, whatever may be the nature of the goods. In the case of unneutral service the destination of the captured vessel is immaterial. The nature of her mission is the all-important point. She may be seized and confiscated when sailing between two neutral ports. The penalty for carrying contraband is the forfeiture of the forbidden goods, the ship being retained as prize of war only under special circumstances. The penalty for unneutral service is first and foremost the confiscation of the vessel, the goods on board being condemned when the owner is involved or when fraud and concealment have been resorted to.

Nothing but confusion can arise from attempting to treat together offences so widely divergent as the two now under consideration. This was shown in a marked degree by a famous case, which occurred towards the end of 1861. On November 8 in that year the American cruiser San Jacinto stopped the British mail-steamer Trent when on her usual voyage between the two neutral ports of Havana and Nassau, and took from her Messrs. Slidell and Mason,

who were proceeding to Europe as agents of the Confederate Government in France and England respectively. The vessel was then allowed to continue her voyage, and the Southern commissioners and their two secretaries were landed, and detained as prisoners at Boston. The news of the seizure reached London on the 27th of November. On the 30th, the British Government demanded the release of the captured individuals. Troops and stores were despatched to Canada; and the warlike feeling evoked in England found its counterpart on the other side of the Atlantic, where Captain Wilkes, the commander of the San Jacinto, was publicly feasted, and Congress, on December 4, honored him with a vote of thanks. Fortunately, a few wise and peace-loving men were not carried away by the general excitement. Foremost among them were the late Prince Consort in England and the late President Lincoln in America. Owing mainly to their calm judgment and self-sacrificing efforts, the terrible calamity of war between two kindred nations was avoided. On December 26, Mr. Seward, the American Secretary of State, argued the question at great length in a comprehensive despatch, and concluded by agreeing to give up the prisoners on the ground that they ought not to have been taken out of the vessel, but should have been brought in, with the vehicle which carried them, for adjudication by a properly constituted Prize Court. A few days later they were placed on board an English man-of-war, to be taken to Nassau, the port for which the Trent was making when the seizure took place. This settled the matter immediately in dispute, and put an end to the acute stage of the controversy. But on January 23, 1862, Earl Russell, who was then Secretary of State for Foreign Affairs in the British Government, replied in an elaborate state paper to the arguments of the American despatch of the previous month. This he did in order that Her Majesty's government might put on record its disagreement with

some of Mr. Seward's conclusions. The discussion went no further as between the official representatives of the two powers concerned; but private persons carried it on with great vigor for many months; and even now the case of the Trent forms a subject for discussion in books on International Law. To us its value as a leading case ranks very low. It was argued throughout on an erroneous assumption. Mr. Seward labored earnestly to prove that the Confederate commissioners and their suite were contraband of war. Earl Russell strove with equal toil to show that they were nothing of the kind. Mr. Seward regarded the neutral destination of the Trent as a fact of no moment. Earl Russell held it to be decisive in favor of her immunity from belligerent capture. Both sides persisted in attempting to apply to the facts before them the principles of the law of contraband, whereas the question to be resolved was clearly concerned with unneutral service. The law of contraband provides for dealing with things, not persons, as Mr. Seward plainly saw. But nevertheless he did not seem to suspect that there was any other way of bringing the points at issue to the decision of a properly constituted tribunal. Excuse for this failure to discern what is abundantly evident may be found in the language of a few treaties and a considerable number of writers, who place in their lists of contraband such persons as soldiers and sailors. But those who have followed the arguments of the two preceding sections will hardly need to be told that the carriage of belligerent individuals by neutral vessels and the carriage of articles of contraband trade stand on very different grounds and are judged by very different rules. The complexity and difficulty of the case of the Trent would have vanished in a moment had the principles appropriate to it been recognized and applied. Neutral vessels may innocently carry some kinds of persons belonging to communities at war. Other kinds they may not carry except at the risk of capture and confiscation by the belligerent who suffers from

The

The

their service to his foe. The Trent was undoubtedly engaged in transporting four citizens of the Southern Confederacy. The only question to be argued was whether they belonged to the allowed or the forbidden class. destination of the vessel was absolutely immaterial. provisions of the law of contraband were beside the mark. What required to be applied was the law of unneutral service. Those of its rules which bear upon the matter in dispute are very simple. A neutral vessel, not being in the service of a belligerent as a transport, may lawfully carry both his diplomatic agents and his private citizens. Now the exact status of Messrs. Slidell and Mason may well be regarded as doubtful. The Confederacy, of which they were agents, had been recognized as a belligerent power, but not as a sovereign state. It could not, therefore, accredit formal and official diplomatic ministers to foreign countries, and was reduced to sending informal envoys. But if these gentlemen were not diplomatists, they were private persons, and in neither capacity was the neutral precluded from transporting them as ordinary passengers in his mail packets. Consequently the seizure was illegal, and would have been illegal had Captain Wilkes brought in the vessel and all she contained for adjudication by a lawful Prize Court. A contrary decision would, as was pointed out at the time, have authorized the seizure of the Dover packet-boat by a Federal or a Confederate cruiser, had an important diplomatic agent of the other side been crossing in her from England to France or from France to England. Such a drastic interference with neutral trade was never contemplated by International Law.1

1 The literature of the Trent Case is voluminous. The facts and arguments will be found in Wharton, International Law of the United States, §§ 328, 374; Montague Bernard, Neutrality of Great Britain in the American Civil War, Ch. IX.; Dana, note on Carrying Hostile Persons or Papers, in his ed. of Wheaton's International Law, pp. 644-659; and Letters of Historicus, IX.

Cherokee Nation v. State of Georgia, 69. Marianna Flora, The, 393.