says he, from one neutral port to another, from a neutral to a belligerent, or from a belligerent to a neutral, or finally from one belligerent port to another. In the three first cases the conveyance is always innocent. In the last it is guilty only when the vessel is chartered for the purpose of carrying the despatches; but when the master of a packet boat or a chance vessel takes despatches together with other mail matter according to usage, he is doing what is quite innocent, and is not bound to ascertain the character of the letters which are put on board his vessel. Whatever may be thought of this, it may be seriously doubted whether a neutral ship, conveying mails according to usage or the law of its country, can be justly treated as guilty for so doing. The analogy from arti cles contraband of war here loses its force. When a war breaks out, a captain ought to know what articles he has on board, but how can he know the contents of mailed letters? Trent. The case of the Trent, in which this and several other prin ciples of international law were involved, may here Case of the receive a brief notice. This vessel, sailing from one neutral port to another on its usual route as a packet ship, was overhauled by an American captain, and four persons were extracted from it on the high seas, under the pretext that they were ambassadors, and bearers of despatches from the Confederate government, so called, to its agents in Europe. The vessel itself was allowed to pursue its way, by waiver of right as the officer who made the detention thought, but no despatches were found. On this transaction we may remark, (1.) That there is no process known to international law by which a nation may extract from a neutral ship on the high sea a hostile ambassador, a traitor, or any criminal whatsoever. Nor can any neutral ship be brought in for adjudication on account of having such passengers on board. (2.) If there had been hostile despatches found on board, the ship might have been captured and taken into port; and when it had entered our waters, these four men, being citizens charged with treason, were amenable to our laws. But there appears to have been no valid pretext for seizing the vessel. It is simply absurd to say that these men were living despatches. (3.) The character of the vessel as a packet ship, conveying mails and passengers from one neutral port to another, almost precluded the possibility of guilt. Even if hostile military persons had been found on board, it might be a question whether their presence would involve the ship in guilt, as they were going from a neutral country and to a neutral country. (4.) It ill became the United States, - a nation which had ever insisted strenuously upon neutral rights, to take a step more like the former British practice of extracting seamen out of neutral vessels upon the high seas, than like any modern precedent in the conduct of civilized nations, and that too when she had protested against this procedure on the part of Great Britain and made it a ground of war. As for the rest, this affair of the Trent has been of use to the world, by committing Great Britain to the side of neutral rights upon the seas.1 Trade closed in peace, but opened in war. - § 200. Certain kinds of trade, as the coasting and colonial, have been by the policy of most nations confined to national vessels in time of peace; and neutrals have been allowed to participate in them only when war rendered the usual mode of conveyance unsafe. It would appear, that to make such trade lawful, licenses were granted to particular vessels, and the belligerent captor could, with justice take the ground, that the vessel under license had identified 1 For the subjects embraced within this section see Marquardsen (Prof. at Erlangen) Der Trent-Fall, Erlangen, 1862. For the conveyance of troops and of despatches most of the modern text writers may be consulted, as Wheaton, iv., 3, § 25. Heffter, § 157 b: Ortolan, ii., 213; Wildman, ii., 234-244; Phillimore, iii., § 273. The cases, which have principally determined the law in the matter of despatches, are those of the Atalanta, 6 Robinson's Rep. 440; Carolina, ibid., 465; and Rapid, Edwards' Rep. 228. The Atalanta brought despatches from the French governor of the Isle of France to the French Minister of Marine, and was condemned; the Carolina, from the French ambassador in the United States, a neutral country, to his home government, and was released. For the course which the United States should have taken from the first news of the Trent affair, in consistency with our past principles, compare Mr. Sumner's speech in the Senate of the United States, in January, 1862. itself with the enemy. In the Seven Years' War, declared in 1756, the British government and courts maintained that this kind of trade was prohibited by the law of nations: hence the principle, that a neutral could not lawfully engage, during war, in a certain trade with the enemy, from which he had been shut out in peace, is called the rule of 1756. The rule was protested against in 1780 by the first armed neutrality, so far as coasting trade was concerned; but in 1793 and onwards was enforced by the British government; although, now, the trade was no longer carried on by special license, but was opened to all neutral vessels. The grounds on which the rule stood were, that the neutral interfered to save one of the belligerents from the state of distress to which the arms of his foe had reduced him, and thus identified himself with him. The neutral states have never allowed that the rule forms a part of the international code. "Its practical importance," Dr. Wheaton observes, "will probably hereafter be much diminished by the revolution which has taken place in the colonial system of Europe." 1 § 201. Coasting and colonial trade in war in neutral's hands. The declaration of Paris, of 1856, by which the neutral flag covers enemies' goods, destroyed the force of the rule of 1756, for the new rule protects neutral trade in innocent articles between two hostile ports, whether such trade had been opened to neutrals in time of peace or not. The rule is expressed in the most general terms. But, although this rule is obsolete, and has gone into history for the most part; the United States, not being a party to the above-mentioned declaration, may yet be under the operation of the old British law in regard to coasting and colonial trade. Here two questions may be asked, the one touching the lawfulness of coasting trade proper, the other touching the conveyance by neutrals of their goods, brought out of foreign ports, from one port of the enemy to another. Our government has contended for the right of neutrals to engage in both descriptions of trade, if we are not in an error, while some of 1 Wheaton, Elements, iv., 3, § 27, at the end. our publicists hold the first to be reasonably forbidden, the other to be allowed. Judge Story says ("Life and Letters,” i., 285-289) that, in his private opinion, "the coasting trade of nations, in its strictest character, is so exclusively a national trade, that neutrals can never be permitted to engage in it during war without being affected with the penalty of confis cation. The British have unjustly extended the doctrine to cases where a neutral has traded between ports of the enemy with a cargo taken in at a neutral country." He is "as clearly satisfied that the colonial trade between the mother-country and the colony, where that trade is thrown open merely in war, is liable, in most instances, to the same penalty. But the British have extended their doctrine to all intercourse with the colonies, even from or to a neutral country, and herein, it seems [to him], they have abused the rule." There seems to be reason for such a difference. To open coasting trade to neutrals is a confession of inability to carry on that branch of trade on account of apprehensions from the enemy's force, and an invitation to neutrals to afford relief from the pressure of war. It is to adopt a new kind of vessels, on the ground that they cannot be captured. The belligerent surely has the right to say that his attempts to injure his enemy shall not be paralyzed in this manner. But he has no right to forbid the neutral to carry his own goods from hostile port to hostile port, when he might have done it before. Every right of innocent trade, then, enjoyed by the neutral in peace, should be allowed after the breaking out of the war; but new rights, given to them on account of the war, may be disregarded by the belligerent as injuring his interests. Hautefeuille remarks, on the other side, that the sovereign who can interdict can also permit a certain kind of commerce. But this is begging the question. Can he, by such privileges, restrain his enemy from annoying him- privileges which are nothing but taking the neutral trader into a kind of partnership? Suppose that he hired war-vessels from a neutral sovereign, would that exempt them from capture? Most other continental writers have condemned the rule of 1756, as Or tolan, Kaltenborn, Heffter, in a qualified way, and Gessner. Some treaties have allowed coasting trade to neutrals between enemies' ports in war, as that between England and Holland of 1675; that between Holland and Spain of 1676, 1679; the Treaty of Utrecht; that of 1715 between Holland and Russia; that of 1725 between the German Empire and Spain; that of 1795 between Spain and the United States. In some few treaties, again, such trade is prohibited, as in that of 1691 between England and Denmark; that of 1762 between Prussia and Sweden; that of 1801 between Russia and England, the latter against the principle of the armed neutralities. See Phillimore, iii., §§ 215-225, Hautefeuille, ii., pp. 53-68, Gessner, 266-277, to the latter of whom I am indebted for much of the matter of this paragraph, and Kent, i., pp. 82-85. The latter, speaking of our protests against the rule, thinks that if we should become a great power, and have a maritime enemy which should open its commerce to neutrals at the outbreak of war, we should attach more weight to the arguments in favor of the rule of 1756 than we have done. It is to be hoped that, by acceding to the declaration of 1856, or some other, allowing larger liberties of trade, we shall help to consign the old rule to oblivion. § 202. The word blockade properly denotes obstructing the passage into or from a place on either element, but is Blockade. more especially applied to naval forces preventing communication by water. Unlike siege it implies no intention to get possession of the blockaded place. With blockades by land or ordinary sieges neutrals have usually little to do. What places A blockade is not confined to a seaport, but may have effect on a roadstead or portion of a coast, or the mouth of a river. But if the river is a pathway to interior can be neutral territories, the passage on the stream of vessels destined for neutral soil cannot be impeded. It has been asserted, that no place could be put under blockade, unless blockaded. |