A modern case shows the rigor of the English courts in regard to such transportation. The Bremen ship Greta was condemned in 1855, during the Crimean war, by a prize court at Hong Kong, for carrying 270 shipwrecked Russian officers and seamen from a Japanese to a Russian harbor, although had this conduct been dictated by mere humanity, condemnation could not have taken place."*

"The fraudulently 'carrying the despatches of the enemy will also subject the neutral vessel in which they are transported to capture and condemnation. The consequences of such a service are indefinite, infinitely beyond the effect of any contraband that can be conveyed. The carrying of two or three cargoes of military stores,' says Sir W. Scott, 'is necessarily an assistance of a limited nature, but in the transmission of despatches may be conveyed the entire plan of a campaign that may defeat all the plans of the other belligerent in that quarter of the world.

. . . It is impossible to limit a letter to so small a size as not to be capable of producing the most important consequences. It is a service, therefore, which, in whatever degree it exists, can only be considered in one character-as an act of the most hostile nature. The offence of fraudulently carrying despatches in the service of the enemy being then greater than that of carrying contraband under any circumstances, it becomes absolutely necessary, as well as just, to resort to some other penalty than that inflicted in cases of contraband. The confiscation of the noxious article, which constitutes the penalty in contraband where the vessel and cargo do not belong to the same person, would be ridiculous when applied to despatches. There would be no freight dependent on their transportation, and therefore this penalty could not, in the nature of things, be applied. The vehicle in which they are carried must therefore be confiscated.'"+

Of the penalty inflicted on the neutral vessel for carrying hostile persons and despatches, Mr. Dana says: "The reason is that the neutral is engaged in the belligerent service of the enemy. This the other belligerent may prevent, and in order to prevent, may inflict adequate penalties to deter all others as well as to punish the offender. It is agreed by nations that the

*Woolsey, Sec. 184.

† Dana's Wheaton, p. 635-6.

penalty may be the condemnation of the vessel ́and of any property on board which the wrong-doer fairly represents.

"The question now becomes one of degree. What acts constitute such a service to the enemy as to entail condemnation? On this the safest guides are the decisions of prize courts adopted as the acts of nations, and the like national acts in the way of treaties and decrees or orders."*

From several cases cited Mr. Dana deduces the following doctrines :

Prize Courts.

"(1) If a vessel is in the actual service of the enemy as a Decisions of transport, she is to be condemned. In such case it is immaterial whether the enemy has got her into his service by voluntary contract or by force or fraud. It is also in such case immaterial what is the number of the persons carried or the quantity or character of the cargo; and, as to despatches, the court need not speculate upon their immediate military importance. It is also unimportant whether the contract, if there be one, is a regular letting to hire, giving the possession and temporary ownership to the enemy, or a simple contract of affreightment. The truth is, if the vessel is herself under the control and management of the hostile government, so as to make that government the owner pro tempore, the true ground of condemnation should be as enemy's property. The interpretation of this technical phrase of prize law will cover all such cases.

"(2) If a vessel is not in the enemy's service, still, if the master knowingly takes for the enemy's government or its agents persons or papers of such a character or destination that the transporting of them under the neutral flag is an actual belligerent service to the State, it is an unneutral act, which forfeits the vessel. If he avers ignorance of the character of the persons or papers, all the circumstances are to be considered for the purpose of determining not only the truth of his averment, but whether his ignorance, though real, is excusable. He is bound to a high degree of diligence in such cases, and if the circumstances fairly put him on inquiry, which he does not properly pursue, he will not be excused. Among these circumstances are the character of the despatch, as far as shown from itself, its source, its destination, the circumstances attending its delivery or custody, and the character of the ports of departure

Dana's Wheaton, p. 639, n.

and destination of the vessel, as being neutral or hostile. In a case of a vessel not in the enemy's service, but doing such acts for his benefit, can she be said to be enemy's property pro hac vice? In the Tulip, an American vessel, during the war with England, carrying despatches from a British minister to his own government from a neutral port under a safe-conduct, agreeing to put them on board some homeward-bound British vessel, was held to be, pro hac vice, enemy's property; but in that case the vessel, being American, was condemnable for traitorously aiding the enemy, and the form of condemnation was of little consequence.

"(3) It is not an unneutral intervention, entailing a penalty, for a neutral to knowingly carry a despatch of a character recognized as diplomatic in the international intercourse of States. Of this class is a despatch passing either way between the enemy's home-government and its diplomatic agent in a neutral country, or between a neutral government and its diplomatic agent in an enemy's country; and consuls-general come within the privilege of this rule. But if the despatches are placed in a private vessel of the nation with which the ambassador's nation is at war, and she is captured by a cruiser of the former nation, the despatches have no immunity.

"The above are the principles laid down by the English prize courts and adopted by the British government, which no other prize courts have overruled, and no national acts of other States, in the way of treaties and permanent orders, have disclaimed."*

"If the ship-master is found guilty of carrying hostile despatches, the ship is liable to condemnation, and the cargo is confiscable also, both 'ob continentiam delicti' and because the agent of the cargo is guilty. But if the master is not such an agent, his guilt will not extend beyond the vessel.

"This rule, in its general form, if not in its harsher features, may be said to have passed into the law of nations."†

It has been held by the courts of the United States that a neutral may carry despatches from a minister resident in the neutral State to a port of the belligerent country to which the minister belongs; if stopped at sea for the purposes of a search, his only obligation is to act candidly, and deliver the despatches to the enemy of the minister's government. "Concealment and † Woolsey, Sec. 184.

* Dana's Wheaton, p. 643, n.

mala fides are taking part with the enemy, and will subject the neutral to the penalties inflicted by the law of nations.”*

"If a neutral who has been in the habit, in the way of his Mail steamers. ordinary business, of carrying post-bags to or from a belligerent port receives sealed despatches with other letters in the usual bags, or if he even receives a separate bundle of despatches without remuneration, he cannot be said to make a bargain with the belligerent, or to enter his service personally for belligerent purposes. He cannot even be said to have done an act of trade of which he knows that the effect will be injurious to the other belligerent; despatches may be noxious, but they may also be innoxious, and the mere handing over of despatches to him in the ordinary course of business affords him no means of judging of their quality. A neutral accepting despatches in this manner cannot therefore be subjected to a penalty. When again a neutral in the way of his ordinary business holds himself out as a common carrier, willing to transport everybody who may come to him for a certain sum of money from one specified place to another, he cannot be supposed to identify himself specially with belligerent persons in the service of the State who take passage with him. The only questions to be considered are whether there is any usage compelling him to refuse to receive such persons if they are of exceptional importance, and, consequently, whether he can be visited with a penalty for receiving them knowingly, and whether, finally, if he is himself free from liability, they can be taken by their enemy from on board his vessel."†

As to the last question suggested in the above, it may be said that where the subject is touched upon at all in treaties, persons in the military service of the enemy are specially excepted from the protection afforded by the neutral flag to the persons and property of enemy subjects. The language generally used, after stipulating for the freedom of goods not contraband, is as follows: "It is also agreed, in like manner, that the same liberty be extended to persons who are on board a free ship; and they shall not be taken out of that free ship unless they are officers or soldiers, and in the actual service of the enemy." And, as illustrating the duty of the master of a neutral mail † Hall, p. 591. U. S. Treaties, 1873, Italy, p. 508.

Dahlgren, p. 145.

steamer, sailing for an enemy's port, not to receive as passengers officers and men of the enemy's military service, the following case may be cited:

The British mail steamer Teviot, permitted to pass the blockade of Vera Cruz maintained by the United States in 1847, carried as a passenger from Havana to Vera Cruz General Paredes, previously President of Mexico. This was made the subject of complaint by the United States, and it was represented that according to the rules of English prize courts, as laid down by Sir Wm. Scott, the Teviot had been rendered liable to capture and condemnation. This was not insisted upon, but the punishment of the commander of the Teviot was asked in order that the disapproval of the British government might be shown.

The government, after an investigation of the affair, informed the directors of the company to which the Teviot belonged that they were bound to testify in a marked manner their disapproval of the conduct of the commander of the vessel, and he was in consequence suspended from his command; and the company publicly and distinctly condemned any act on the part of their officers which might be regarded as a breach of good faith towards the United States.*

In discussing the question of the right of taking military passengers out of neutral vessels, apparently implied by the language of treaties similar to that concluded with Italy in 1871, quoted above, Mr. Dana cites several proposals made by the United States to the government of Great Britain, in which this right was fully admitted, and says: "From the numerous treaties to which reference has been made, many in this century, and as late as 1851, and from these proposals of the great advocate of neutral rights and trade, a strong argument might be made in favor of a right to take military persons in actual service from neutral vessels without judicial proceedings against the vessels. Yet it is out of harmony with the practice of modern times in cognate cases. The proper rule would seem to be that, if there is no probable cause for thinking the vessel in fault in carrying them, and as no prize proceedings can be had against the persons, the persons should not be taken out of the vessel. But, if the case warranted proceedings against the

*Lawrence's Wheaton, App. p. 959.