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Whether mail-bags ought to be exempt from search.

Exemption from confiscation is extended as of course, on the ground of ignorance, to packets of a regular mail line carrying post-bags, which the captain is bound to receive, and the contents of which he has no means of discovering; and merchant vessels are protected in like manner when, by municipal regulations of the country from the ports of which they have sailed, they are obliged to take on board all government despatches or letters sent from the post offices.1

§ 50. The great increase which has taken place of late years in the number of steamers plying regularly with mails, has given importance to the question whether it is possible to invest them with special privileges. At present, although secure from condemnation, they are no more exempted than any other private ship from visit; nor does their own innocence protect their noxious contents, so that their post-bags may be seized on account of despatches believed to be within them. But the secrecy and regularity of postal communication is now so necessary to the intercourse of nations, and the interests affected by every detention of a mail are so great, that the practical enforcement of the belligerent right would soon become intolerable to neutrals. On the other hand, it is impossible to overlook the fact that no national guarantee of the innocence of the contents of a mail can be afforded by the neutral power. No govern

these cases; iii. § 272. It is
no doubt proper to throw upon
the neutral the onus of proving
his innocence, and to sift the
evidence which he adduces with
the most jealous suspicion; but
to punish him for the acts of
another person, of which he has
been the unwilling or unconscious
subject, is at once useless and

wrong. The belligerent cannot be intimidated by losses inflicted on his victim.

1 Lawrence, note to Wheaton, pt. iv. chap. iii. § 25; Calvo, § 1132; Ortolan, ii. 240. Hautefeuille exaggerates the immunities of neutrals carrying despatches; tit. viii. sect. v. § 5.

ment could undertake to answer for letters passed in the ordinary manner through its post offices. To give immunity from seizure to neutral mail-bags would therefore be equivalent to resigning all power to intercept correspondence between the hostile country and its colonies, or a distant expedition sent out by it; and it is not difficult to imagine occasions when the absence of such power might be a matter of grave importance.

No usage has hitherto formed itself on the subject. During the American Civil War it was at first ordered by the Government of the United States that duly authenticated mail-bags should either be forwarded unopened to the foreign department at Washington, or should be handed after seizure to a naval or consular authority of the country to which they belonged, to be opened by him, on the understanding that documents to which the belligerent government had a right should be delivered to it. On the suggestion of the English Government, which expressed its belief that the Government of the United States was prepared to concede that all mail-bags, clearly certified to be such, should be exempt from seizure or visitation,' these orders were modified; and naval officers were directed, in the case of the capture of vessels carrying mails, to forward the latter unopened to their destination.1

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of persons

service of

the belli

§ 51. A neutral vessel becomes liable to confisca- Carriage tion for the carriage of persons in the service of a in the belligerent, either when the latter has so hired it that it has become a transport in his service and that he has gerent. entire control over it; or when the persons on board are such in number, importance, or distinction, or when the circumstances of their reception are such,

1 See the correspondence in 319-23; Dana, note to WheaBernard's Neut. of Great Britain, ton, § 504.

as to create a reasonable presumption that the owner or his agent intend to aid the belligerent in his war. In the case of the ship Friendship, a vessel was hired to bring home to France eighty-four shipwrecked officers and sailors. It was confiscated as a transport, because it appeared in evidence that the vessel was not permitted to take cargo, and that the French Government had paid for the passage of the men; who were thus being carried, not as common passengers, but as a part of the French navy, from a port of the United States to a port in France. In another case a vessel sailed from Rotterdam to Lisbon, where it was ostensibly chartered by a Portuguese subject to carry cargo or passengers to Macao; no cargo was shipped, but after some time spent in fitting it for passengers with unusual care, three Dutch officers of rank embarked in it, not for Macao, but for Batavia. Lord Stowell, on the facts of the case, inferred that a contract had been entered into with the Dutch Government before the vessel left Rotterdam, and condemned it.1

In the transport of persons in the service of a belligerent, the essence of the offence consists in the intent to help him; if, therefore, this intent can in any way be proved, it is not only immaterial whether the service rendered is important or slight, but it is not even necessary that it shall have any immediate local relation to warlike operations. It is possible for a vessel to render herself liable to seizure and confiscation for a transport effected between two neutral ports, and it may perhaps be enough to establish liability that the persons so conveyed shall be in civil employment. But where intent cannot be proved the penalty cannot be exacted; as when a

The Friendship, vi Rob. 422; The Orozembo, vi Rob. 433; Bernard, 224; Ortolan, ii. 234.

vessel, habitually engaged in passenger traffic, carries belligerent persons of importance in the course of her ordinary voyage.

As a neutral vessel may be the bearer of Immunity of diplodespatches passing between a belligerent govern- matic ment and its diplomatic agents in a neutral country, agents. so also, and for the same reasons, the transport of diplomatic agents themselves is permitted.

Trent.

During the American Civil War this principle Case of the was involved in a question which arose between the Governments of Great Britain and the United States. In 1861 Messrs. Mason and Slidell, who had been appointed diplomatic agents at the Courts of St. James' and the Tuileries, sailed from Havana for St. Thomas on their way to England, on board the English steamer Trent. While passing through

the Bahama Channel she was boarded from an American frigate, and Messrs. Mason and Slidell were taken out of her and carried as prisoners into Boston. The English Government demanded their immediate release, which was conceded upon grounds which were stated at length by Mr. Seward, and were afterwards controverted by Lord Russell, to whom they appeared to be erroneous.

In the opinion of the American Government, all persons in the service of a belligerent, together with any despatches or instructions of which they may be bearers, are articles contraband of war. 'But only Courts of Admiralty have jurisdiction in maritime cases, and these Courts have formulas to try only claims to contraband chattels, but none to try claims concerning contraband persons.' Suspected men therefore can only be retained as contraband, if the vessel in which they have been carried is proceeded against and condemned for having been engaged in their transport. But in the case of the Trent, the

vessel having been released, no proceedings against her were possible, and 'no legal certainty concerning the character of the men' could be acquired. Applying these doctrines to the particular case, Mr. Seward asserted that the capture of Messrs. Mason and Slidell was in itself lawful, but that it had been invalidated by the neglect of their captors to bring in the Trent for adjudication as prize.

Lord Russell on the other hand maintained it to be too plain to need argument,' that' every kind of diplomatic communication between government and government,' falls under the principle which forbids that despatches from or to diplomatic agents shall be treated as contraband of war, and that therefore the conveyance of public agents of such character, and of their credentials or despatches, on board the Trent, was not and could not be a violation of the duties of neutrality on the part of that vessel.'1

Mr. Seward to Lord Lyons, Dec. 26, 1862, and Earl Russell to Lord Lyons, Jan. 23, 1862; ap. Bernard, 201 and 215. On

the general doctrine see Bluntschli, § 817; Dana, note to Wheaton, § 504.

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