Obrázky stránek

an interesting fact that at a meeting held in Boston shortly after the capture was reported, Chief Justice Bigelow, of Massachusetts, a judge both cautious and capable, declared that Captain Wilkes's action was fully justified by international law. There is, indeed, more ground than is now generally admitted for sustaining this contention. It is agreed on all sides that the right of search may be exercised in war;' and that a vessel carrying contraband despatches may be arrested, and, as will presently be seen, will be condemned in a prize court, according to the English rule, even if the officers be ignorant of the nature of the despatches, and, according to our rule, if any complicity be established. It may well have been argued, in the Trent case, that for the Trent to carry diplomatic agents of the Confederacy would expose the vessel to condemnation as much as would have been the case if the vessel simply carried despatches. To this, however, the answer is twofold. In the first place, the better opinion is that diplomatic agents, sent by a belligerent to a neutral, are not contraband, since it is always allowable for a neutral to maintain diplomatic relations with a belligerent, and the mission of such agents may be one of peace as well as one for the promotion of hostilities. If this position, which is now generally accepted, be correct, it is no answer that the Confederate states were not belligerents. England formally recognized them as such, and this recognition was based on the fact that the United States had blockaded the ports of the Confederate states, and had negotiated with the Confederate states treaties for exchange of prisoners, both of which acts implied a recognition of belligerency. In the second place, even supposing that the Confederate envoys

Supra, § 195. As sustaining the capture see article in North American Rev., July, 1862, by Prof. Joel Parker.

2 See Bluntschli, § 817; Revue mavit. et col., vol. xix. § 14; Gessner, 12th ed., 122, states that Prussia, Austria, and France protested against the seizure. As to general right to arrest, see Heffter, § 161 a; Perels, § 47.

That persons cannot be contraband of war is maintained by Mr. Hall, 600; by Mr. Montague Bernard, 224; and by Marquardson, Der Trentfall, where the whole question is discussed. 3 Supra, § 165; infra, § 229.

That this belligerency had been actually recognized by the United States, see §§ 141, 165, 217.


were contraband, the proper course would have been to have taken the Trent to a prize court for condemnation. The determination of the question of contraband in such case was for a court constituted in conformity with the law of nations, and could not be assumed by the officers of the arresting cruiser. At the same time it is an international offence for a neutral to carry knowingly to and fro the diplomatic agents of one of the belligerents whose object is the furtherance of the war. And in case a neutral ship is knowingly lent to such transport, whether of despatches or of soldiers, or, it may be, of agents engaged in furthering the war, confiscation may be adjudged.2

1 See the valuable criticism by Prof. Montague Bernard, in his work on English neutrality (cf. Revue du Droit Int., ii. p. 126), where he agrees that a neutral ship, which carries military or civil agents of a belligerency on board, is exposed to capture if the intention to aid the belligerent plainly appears.

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

2 See Phillimore, iii. § 489; Mac- from a neutral ship on the high sea a lachlan, 530; Perels, § 47.

On the Trent question, see further articles in London Quarterly Rev., Jan. 1862. The question is discussed at large by Mr. Lawrence, Com. sur Wheat., iii. 447. And see English parliamentary papers, 1862, North America. No. v. p. 26, and, for other references, supra, §§ 163, 195.

Dr. Woolsey (Int. Law, § 184) takes strong condemnatory ground. "The case of the Trent," he says, "in which this and several other principles of international law were involved, may here 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

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


cate with

§ 229. The diplomatic agents of a neutral power are entitled to communicate with their sovereign through the diplomatic military lines of a belligerent who is investing or agents may blockading the place to which they are accredited; and they are further entitled to pass through the military lines of the hostile nation, together with blockade or their families, official and personal, when necessary for the purpose of reaching or removing from their respective posts.1

their sover




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."

It may be added that diplomatic negotiations by envoys passing between a belligerent and a neutral may be among the most efficient means of restoring peace; and, aside from this view, the neutral is entitled to maintain permanent official intercourse with both belligerents. Nor is it necessary that the independence of the belligerent, in order to secure these rights of diplomatic representation, should have been acknowledged by the neutral. It is enough that belligerency should be so acknowledged. The fact that a government of a territory having complicated business relations with a neutral state, should be recognized by such neutral as belligerent, entitles the belligerent to send envoys to the neutral.

No blame could be attached to England for recognizing the Confederate States as belligerents, since this recognition did not take place until the United States government had practically, as is stated above (supra, §§ 141, 165, 217), recognized such belligerency. It is true, a belligerent envoy to a neutral may be seized by the other belligerent when on his way over the latter's territory. But one belligerent cannot invade the territory of a neutral for the purpose of seizing the person of such an envoy; and if the territory of a neutral cannot be invaded for this purpose, a ship of a neutral cannot be visited and searched for the purpose of making such arrest. In.resenting, therefore, the arrest of Messrs. Mason and Slidell, and insisting on their restoration, England made at least some progress to the recognition of the doctrine previously and subsequently contended for by the American courts, that a ship is to be regarded (except when carrying goods contraband of war, or contraband despatches) as part of the territory of the state to which she belongs.

That insurgents may have diplomatic relations with neutrals, see supra, § 165.

For some interesting details as to the Trent case, see Thurlow Weed's Life, i. pp. 634 et seq.

Field's Code Int. Law, § 912, fur

of ship im

puted to


§ 230. So far as concerns the question of seizure, the destination of goods is determined by the destination of Destination the ship. Even though neutral goods are not intended to remain in a hostile port to which they are bound; yet they are liable to seizure as contraband, or as tainted with blockade running, if in a ship bound for such port. On the other hand, a neutral destination, for a neutral ship, will protect, even by the English rule, neutral goods on such ship from seizure. Contraband goods, to be open to seizure, must be actually in prosecution of voyage to a belligerent port, though the fact of an intention on the part of the owners of the vessel to stop at an intermediate neutral port will not exempt the goods from seizure.3



§ 233. The declaration of the treaty of Paris that a blockade to be valid must be effective, seems like a petitio principii, amounting to little more than the declara- must be tion that a blockade to be effective must be effective. But when we recognize the sense given to the word effective,

ther stating "that in the Franco-Prussian war, during the siege of Paris, the official despatches between the government of the United States and their legation in Paris, were transmitted to and fro, across the lines, by the belligerents, subject, however, to delay imposed by the military forces. Private correspondence and newspapers were also allowed transmission into Paris in the official despatch bag, the former being examined to exclude everything relating to the war, and newspapers being passed on a pledge that they should only be read by the American minister. Foreign Relations of the United States, 1871, pp. 283-287.

"The right of the neutral government to communicate with its representative in the besieged city, was not fully conceded by Count Bismarck (ibid., pp. 291, 363), although he was understood


by the government of the United States to have conceded it. (Ibid., p. 377.) But his refusal to recognize it was based partly on the plea that a fortified capital was unprecedented (ibid., p. 372), and partly upon the plea that the French Republic had not been recognized by the German powers. (Ibid., p. 365.)

"Perhaps the same right of communication with the hostile nation should be secured to those public agents who under the last article may have undertaken to use their friendly offices in behalf of its members." See Letters on Foreign Rel. U. S., 1871, pp. 293, 371, 403.

Field's Int. Code, § 858; Lushington's Prize Law, § 178.

2 Hobbs v. Henning, 17 C. B. N. S. 791.

The Bermuda, 3 Wall. 514.

both in the Roman and in our own law, this criticism fades away. To agree to perform a duty effectively is a very dif ferent thing from agreeing to perform it absolutely; the latter engagement is a guarantee, the former is an engagement to perform the duty unless casus intervene. A carrier, for instance, does not insure against a sudden frost which a prudent person could not foresee, nor against peculiar and extraordinary storms; nor even against defective performance by employés, when this defectiveness arises from extraordinary interferences not to be prognosticated. And so it is with blockades. A blockade to be effective need not be perfect. It is not necessary that the beleagured port should be hermetically sealed. It is not enough to make the blockade ineffective that on some particularly stormy night a blockade-runner slid through the blockading squadron. Nor is it enough that through some exceptional and rare negligence of the officers of one of the blockading vessels a blockade-runner was allowed to pass when perfect vigilance could have arrested him. But if the blockade is not in the main effective-if it can be easily eluded -if escaping its toils is due not to casus or some rare and exceptional negligence, but to a general laxity or want of efficiency-then such blockade is not valid. It should be added that the position that the right to blockade is limited

"In some cases where a blockading squadron, from the nature of the channels leading to a port, can be eluded with ease, a large number of successful evasions may be insufficient to destroy the legal efficiency of the blockade. Thus, during the American civil war the blockade of Charleston was usually maintained by several ships, of which one lay off the bar between the two principal channels of entrance, while two or three others cruised outside within signalling distance. This amount and disposition of force seems to have been thought by the British government amply sufficient to create the degree of risk necessary under the English view of international law, al

though, from the peculiar nature of the coast, a large number of vessels succeeded in getting in and out during the whole continuance of the blockade." Hall, Int. Law, 618, citing Bernard, Neut. of Great Britain, chaps. x. and


"If approach for inquiry were permissible, it will readily be seen that the greatest facilities would be afforded to elude the blockade." Field, J., The Cheshire, 3 Wall. 235; S. P., The Spes, 5 C. Rob. 80; The Charlotte Christine, 6 C. Rob. 101. That the president of the United States may declare a blockade without the action of congress, see The Sarah Starr, Bl. Pr. Ca. 69; The Amy Warwick, 2 Sprague, 123; S. C., 2 Blatch. 635.

« PředchozíPokračovat »