in it. In the war of 1756, the French Government allowed the Dutch, then neutral, to carry on the commerce between of its merchant ships is contraband of war. The only writer named by Sir William Scott is Vattel (lib. iv. c. vii. § 85), whose words are these:'On peut encore attaquer et arrêter ses gens (i.e., gens de l'ennemi), partout, où on a la liberté d'exercer des actes d'hostilité. Non-seulement donc on peut justement refuser le passage aux ministres qu'un ennemi envoie à d'autres souverains; on les arrête même, s'ils entreprennent de passer secrètement et sans permission dans les lieux dont on est maître.' And he adds as an example the seizure of a French ambassador, when passing through the dominions of Hanover during war between England and France, by the King of England, who was also sovereign of Hanover. The rule, therefore, to be collected from these authorities is, that you may stop an enemy's ambassador in any place of which you are yourself the master, or in any other place where you have a right to exercise acts of hostility. Your own territory, or ships of your own country, are places of which you are yourself the master. The enemy's territory, or the enemy's ships, are places in which you have a right to exercise acts of hostility. Neutral vessels, guilty of no violation of the laws of neutrality, are places where you have no right to exercise acts of hostility.

It would be an inversion of the doctrine that ambassadors have peculiar privileges to argue that they are less protected than other men. The right conclusion is, that an ambassador sent to a neutral power is inviolable on the high seas as well as in neutral waters while under the protection of the neutral flag.

The other dictum of Sir William Scott, in the case of the 'Orozembo,' is even less pertinent to the present question. That related to the case of a neutral ship which, upon the effect of the evidence given on the trial, was held by the court to have been engaged as an enemy's transport to convey the enemy's military officers, and some of his civil officers, whose duties were intimately connected with military operations, from the enemy's country to one of the enemy's colonies, which was about to be the theatre of those operations, the whole being done under colour of a simulated neutral destination. But as long as a neutral government within whose territory no military operations are carried on, adheres to its profession of neutrality, the duties of civil officers on a mission to that government and within its territory cannot possibly be connected with' any military operations' in the sense in which these words were used by Sir William Scott; as, indeed, is rendered quite clear by the passages already cited from his own judgment in the case of the 'Caroline.'

It was further argued by the United States Government that the 'Trent,' though she carried mails, was a contract, or merchant vessel, a common carrier for hire; that maritime law knows only three classes of vessels-viz., vessels of war, revenue vessels and merchant vessels; and that the 'Trent' falls within the latter class; that whatever disputes have existed concerning a right of visitation or search in time of peace, none, they supposed, had existed in modern times about the right of a belligerent in time of war to capture contraband in neutral and even friendly merchant vessels, and of the right of visitation and search in order to determine whether they are neutral and are documented as such according to the law of nations. They assumed in the case of the 'Trent,' according to their reading of British authorities, that the circumstance that the 'Trent' was proceeding from a neutral port to another neutral port did not modify the right of the belligerent captor.

The reply of the British Government to this is that according to the law as laid down by British authorities, if the real destination of the vessel be hostile (that is, to the enemy of the enemy's country), it cannot be

the mother country and her colonies, under special licences granted for this particular purpose, other neutrals being

covered and rendered innocent by a fictitious destination to a neutral port, but if the real terminus of the voyage be bona fide in a neutral territory, no English, nor, indeed, it is believed any American authority can be found which has ever given countenance to the doctrine that either men or despatches can be subject during such a voyage, and on board such a neutral vessel, to belligerent capture as contraband of war. The British Government regarded such a doctrine as wholly irreconcileable with the true principles of maritime law; and certainly with those principles as they have been understood in the courts of Great Britain. It is to be further observed that packets engaged in the postal service, and keeping up the regular and periodical communications between the different countries of Europe and America, and other parts of the world, though in the absence of treaty stipulations they may not be exempted from visit and search in time of war, nor from the penalties of any violation of neutrality, if proved to have been knowingly committed, are still, when sailing in the ordinary and innocent course of their legitimate employment, which consists in the conveyance of mails and passengers, entitled to peculiar favour and protection from all governments in whose service they are engaged. To detain, disturb, or interfere with them, without the very gravest cause, would be an act of a most noxious and injurious character, not only to a vast number and variety of individual and private interests, but to the public interests of neutral and friendly governments. If the American arguments were acted upon as sound, the most injurious consequences might follow. For instance, in the late civil war, according to that doctrine, any packet ship carrying a Confederate agent from Dover to Calais, or from Calais to Dover, might be captured and carried to New York. In case of a war between Austria and Italy, the conveyance of an Italian minister or agent might cause the capture of a neutral packet plying between Malta and Marseilles, or between Malta and Gibraltar, the condemnation of the ship at Trieste, and the confinement of the minister or agent in an Austrian prison. So in the late war between Great Britain and France on the one hand, and Russia on the other, a Russian minister going from Hamburg to Washington, in an American ship, might have been brought to Portsmouth, the ship might have been condemned, and the minister sent to the Tower of London. So also a Confederate vessel of war might have captured a Cunard steamer on its way from Halifax to Liverpool, on the ground of its carrying despatches from Mr. Seward to Mr. Adams.

In 1804, Mr. Madison, Secretary of State of the United States, in his instructions to Mr. Munroe, the American minister, in England, says, 'Whenever property found in a neutral vessel is supposed to be liable on any ground to capture and condemnation, the rule in all cases is, that the question shall not be decided by the captor, but be carried before a legal tribunal, where a regular trial may be had, and where the captor himself is liable to damages for an abuse of his power. Can it be reasonable, then, or just, that a belligerent commander who is thus restricted, and thus responsible in a case of mere property, of trivial amount, should be permitted, without recurring to any tribunal whatever, to examine the crew of a neutral vessel, to decide the important question of their respective allegiance, and to carry that decision into execution by forcing every individual he may choose into a service abhorrent to his feelings, cutting him off from his most tender connections, exposing his mind and his person to the most humiliating discipline, and his life itself to

excluded from the same trade. Vessels so employed were captured by British cruisers, and, together with their cargoes, condemned by the British prize courts. In the opinion of these courts the vessels were to be considered like transports in the enemy's service, and the property as so completely identified with the enemy's interests as to acquire a hostile character. The doctrine of these decisions has been frequently affirmed by the prize courts of England and America, and by the opinions of the most eminent text-writers of other countries. It has generally been designated by publicists as the rule of the war of 1756.'1

§ 20. Few now contest the correctness of the rule of 1756, that where neutrals, by a special indulgence, are permitted, in time of war, to engage in a commerce of the enemy which is purely national, and from which they are excluded in time of peace, they are necessarily impressed with a hostile character. But during the wars of 1793 and 1801, Great Britain attempted to give this rule a much greater extension, and asserted that where a commerce, which had been previously regarded as a national monopoly, is thrown open in time of war to all nations, without reserve, by a general, and, on its face, a permanent regulation, neutrals have no right to avail themselves of the concession, but that their entrance into the trade thus opened is a criminal departure from the impartiality they are bound to observe. It was formerly the policy of the great European powers to confine exclusively to their ships and subjects the trade between their own ports, and between the mother country and its colonies. During the wars referred to, some of the continental States abolished this monopoly, and opened their coasting and colonial trade to all nations without reserve. But England contended that such a change of policy by a belligerent in time of war was not sanctioned by the law of nations, and neutral vessels engaged in such

the greatest dangers? Reason, justice, and humanity unite in protesting against so extravagant a proceeding.'-See Parl. Papers, 1862.

1 Phillimore, On Int. Law, vol. iii. §§ 214, 225; Wheaton, Elm. Int. Law, pt. iv. ch. iii. § 27; Story, Life of, vol. i. p. 288; Brymer v. Atkyns, 1. H. Black. Rep., p. 191.

A neutral is not allowed to carry on the coasting or colonial trade of the enemy, which is not open to foreigners during peace, as that would increase the resources of the enemy in time of war. The English rule is, that ships and cargo engaged in such a trade are liable to confisca tion. This is the rule of 1756.-The 'Emmanuel,' 2 Rob., 186.

trade were seized by her cruisers, and condemned by her courts of Admiralty. The confiscation of a vast number of American ships, with valuable cargoes of colonial produce, was the principal fruit of this rule of British law and British policy. But the government of the United States most earnestly and energetically remonstrated against the doctrine, as a modern and violent innovation, unjust in its principle, ruinous in its application, and without the sanction of international law. Neither the British Orders in Council, nor the decisions of British prize courts, seem to have adopted any fixed principle with respect to the prohibition of neutrals from engaging in the colonial and coast trade of a belligerent State. Soon after the commencement of the war of 1793, England entrusted her cruisers 'to bring in for lawful adjudication all vessels laden with goods, the produce of any colony of France, or carrying provisions or supplies for the use of any such colony,' thus prohibiting all trade between neutrals and the colonies of the enemy, even that permitted in time of peace. The instructions of January 8th, 1794, were, 'to bring in all vessels laden with goods, the produce of the French West India Islands, and coming directly from any port of the said islands to any port in Europe,' thus permitting American vessels to trade directly between the United States and the French colonies, but not between them and any port in Europe, even though neutral. But, in 1798, the instructions were still further extended so as to permit neutrals to trade between the enemy's colonies and any port of Great Britain, or any port of a country in Europe to which the neutral ship might belong. It will be observed that these relaxations virtually amounted to an abandonment of the principle upon which the British extension of the rule of 1756 was claimed to be founded. Nor was there an entire uniformity in the decisions of the courts, either with respect to the exact limits of the rule, or the penalty to be inflicted on the neutral for its violation. In some of the earlier wars the cargo was condemned, and the ship restored, without freight, but, subsequently, both ship and cargo were condemned. At one time the prohibition was construed to extend only to trade thrown open by the enemy temporarily or during the war; but was afterwards extended to trade made general by regulation declared, in terms, to be permanent.

Moreover, the general principle, that the trade of neutrals with the colonies of the enemy, because first opened by them during the war, seems, in some cases, to have been abandoned by the court, and the trade declared to be unlawful only when its direct and immediate tendency was to relieve the colonies from a hostile pressure, so close and imminent, that, but for the assistance rendered them by neutral trade, it would inevitably compel their surrender.'

1 Duer, On Insurance, vol. i. pp. 699, 717; Wheaton, Hist. Law of Nations, pp. 373, et seq.; the 'Nancy,' 4 Rob., Appen. vi.; British Orders in Council, November 6, 1793; January 8, 1794; February 25, 1798; Heffter, Droit International, § 174; for the purpose of preserving the integrity of the following note, it has been found necessary to reproduce some portions of the above text.

The general principle applied to cases of the interposition of neutral merchants in the colonial trade has been, that the 'fundamental maxim of the trade being founded on a system of monopolising to the parent State the whole trade to and from her colonies in time of peace, it is not competent to neutral States in time of war to assume that trade on particular indulgences, or on temporary relaxations arising from the state of war, and that such a trade is not therefore entitled to the privileges and protection of a neutral character.' The application of this general rule, however, has from time to time been qualified by some relaxations. It is upon the extent and legal effect of these, rather than on the existence or fitness of the general principle itself, that the various discussions which have taken place on these subjects have principally been employed.

During the war between England and her American colonies and the several powers of Europe that interfered to foment those differences, the principle was altogether intermitted-and on this ground, that France had professed, a short time before the commencement of hostilities, to have altogether abandoned the principle of monopoly, and meant, as a permanent regulation, to admit neutral merchants to trade with the French colonies in the West Indies. The event proved the falsehood of that representation; but, for a time, the effect was the same. The Court of Admiralty of Great Britain did not, during that war, apply the principle or interrupt the intercourse of neutral vessels in that branch of commerce more than in any other.

Soon after the commencement of the war of 1793, the first set of instructions that issued were framed, not on the exception of the American war, but on the antecedent practice; and directed cruisers to bring in, for lawful adjudication, all vessels laden with goods, the produce of any colony of France, or carrying provisions or supplies for the use of any such colony.' The relaxations that have since been adopted have originated chiefly in the change that has taken place in the trade of that part of the world, since the establishment of an independent govern ment on the continent of America. In consequence of that event, American vessels had been admitted to trade in some articles, and on certain conditions, with the colonies both of Great Britain and France. Such a permission had become a part of the general commercial arrangement, as the ordinary state of their trade in time of peace. The commerce of America was therefore abridged by the foregoing instructions, and debarred of the right generally ascribed to neutral trade in time of war, that it may be continued with particular exceptions on the