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sel, it is not material, so far as the right to stop is concerned, that he has touched at an intermediate port, for the purpose of greater supposed security, and for transshipment. His character of hostility exists as much in the one case as in the other, and it is only when he has arrived in the country in which he is to exercise his office, that this character of hostility ceases, and that of a “middle-man,” entitled to peculiar privileges, attaches to him, and the neutral territory protects him. But if he is received on board at a neutral port, with no circumstances to excite suspicion that any character of hostility attaches to him, that may well affect the question whether the vessel is liable to confiscation. It is true that the case of the Caroline was one in which the question related to the carriage of despatches from the Minister and Consul of France in the United States to the government of France; and it has been objected that the remarks of Sir William Scott on this subject were therefore mere obiter dicta, that is, the expression of his opinion. But he was led by the case to consider this very subject, and it is evident from the context and the citation from Wattel, that it was a well-considered opinion. So the text-writers, so far as they speak of the principle, have received it; for they have promulgated the rule, as thus stated, without doubt or question. At least, we have not seen or heard of anything to the contrary. We are aware that in the same case Sir William Scott, speaking of despatches, says: —
“The neutral country has a right to preserve its relations with the enemy, and you are not at liberty to conclude that any communication between them can partake in any degree of the nature of hostility against you. The enemy may have his hostile projects to be attempted with the neutral state; but your reliance is on the integrity of that neutral state, that it will not favor nor participate in such designs, but, as far as its own councils and actions are concerned, will oppose them. And if there should be private reason to suppose that this confidence in the good faith of the neutral state has a doubtful foundation,
that is matter for the caution of the government, to be counteracted by just measures of preventive policy, but it is no ground on which this court can pronounce that the neutral carrier has violated his duty by bearing despatches, which, as far as he can know, may be presumed to be of an innocent nature, and in the maintenance of a pacific connection.”
But these remarks will not apply to an ambassador for the first time on his passage. If he is proceeding, in time of war, upon an embassy to another nation, even a neutral nation, he goes as a high official, to support the interest of his country there in relation to the war, as well as other matters, and his character is necessarily that of hostility. When he arrives, the neutral territory will protect him; and then perhaps it is not to be presumed that his communications to the neutral government are those of hostility, and that you are to place reliance upon the integrity of that government. t We have stated this matter thus at large to show that, on the express statement of the official organ of the Confederate government, these persons were not mere peaceful passengers on their private business, as they seem inclined to represent themselves in their “protest”; and that, if they had possessed the official character which their commissions assumed to confer upon them, they would have been liable to capture. But these persons were not ambassadors; — no question respecting the rights of an ambassador, or the protection of an ambassador, is brought directly in question by the seizure; — and the case of the United States is all the stronger because they were not entitled to that character. The right to send an ambassador, and of course to confer the privileges of an ambassador so far as the party sending has the power so to do, is a national right, and not a belligerent right. And as neither the British government, nor any other government, had acknowledged the nationality of the Confederate States, the latter were not authorized to commission an ambassador. Messrs. Mason and Slidell were public agents of the Confederate States of high official standing, — commissioners, bearers of despatches to other agents of those States already abroad, and charged with other errands of hostility to the United States, – designated as ambassadors, but possessing neither the character nor the privileges of that office. The general question then comes, May such hostile agents of the enemy— proceeding from the enemy's country in an enemy’s vessel, but, for the purpose of avoiding capture, stopping in the territory of one neutral, and there transferring themselves to the vessel of another neutral — be stopped and captured while they, with their despatches, are on board the latter vessel, not having arrived at any territory occupied by that neutral 2 This is the first general question. It may be admitted that there is no precedent which precisely covers all the facts of this case; and we are therefore put upon the inquiry, What is the true principle applicable to this new state of facts, and by which the question is to be solved : Asking our readers to bear in mind what we have already stated in regard to the rights, duties, and obligations of neutrals, we proceed to further citations from the opinions and judgments of Sir William Scott, expressed and rendered in 1807, which were not only binding decisions at the time, determining the disposition of very large amounts of property, and then received as sound expositions of law by the British crown and people, but which have since been generally regarded as authority by the best elementary writers in England and in this country." So far as we are aware, they commanded the entire confidence of British statesmen and lawyers, until within perhaps the last thirty days. The estimation in which Sir William Scott was held by the British government appears from the fact, that he was afterward raised to the peerage, with the title of Lord Stowell. Our apology for occupying so much of our space with these extracts is, that the volume in which the judgments are published is not of ready access to general readers. Case of the Orozembo, 6 Robinson’s Adm. Rep. 430–439. This was a case of an American vessel, “that had been ostensibly chartered by a merchant at Lisbon, “to proceed in ballast to Macao, and there to take a cargo to America, but which had been afterwards, by his directions, fitted up for the reception
of three military officers of distinction, and two persons in civil depart
ments in the government of Batavia, who had come from Holland to take their passage to Batavia, under the appointment of the government of Holland. There were also on board a lady and some persons in the capacity of servants, making in the whole seventeen passengers.”
“Sir William Scott. . . . . . That a vessel hired by the enemy for the conveyance of military persons is to be considered as a transport subject to condemnation has been in a recent case held by this court, and on other occasions. What is the number of military persons that shall constitute such a case, it may be difficult to define. In the former case there were many, in the present there are much fewer in number; but I accede to what has been observed in argument, that number alone is an insignificant circumstance in the considerations on which the principle of law on this subject is built; since fewer persons of high quality and character may be of more importance than a much greater num
ber of persons of lower condition. To send out one veteran general of
France to take the command of the forces at Batavia, might be a much more noxious act than the conveyance of a whole regiment. The consequences of such assistance are greater, and, therefore, it is what the belligerent has a stronger right to prevent and punish. In this instance the military persons are three, and there are, besides, two other persons, who were going to be employed in civil capacities in the government of Batavia. Whether the principle would apply to them alone, I do not feel it necessary to determine. I am not aware of any case in which the question has been agitated; but it appears to me, on PRINCIPLE, to be but reasonable that, whenever it is of sufficient importance to the enemy that such persons should be sent out on the public service, at the public expense, it should afford equal ground of forfeiture against the vessel that may be let out for a purpose so intimately connected with the hostile operations.
“It has been argued, that the master was ignorant of the character of the service on which he was engaged, and that, in order to support the penalty, it would be necessary that there should be some proof of delinquency in him, or his owner. But I conceive that is not necessary. It will be sufficient if there is an injury arising to the belligerent from the employment in which the vessel is found. In the case of the Swedish vessel there was no mens rea in the owner, or in any other person acting under his authority. The master was an involuntary agent, acting under compulsion, put upon him by the officers of the French government, and, so far as intention alone is considered, perfectly innocent. In the same manner, in cases of bona fide ignorance, there may be no actual delinquency; but if the service is injurious, that will be sufficient to give the belligerent a right to prevent the thing from being done, or at least repeated, by enforcing the penalty of confiscation. . . . . .
“If it has appeared to be of sufficient importance to the government of the enemy to send them, it must be enough to put the adverse government on the exercise of their right of prevention.”
Case of the Atalanta, 6 Rob. Adm. Rep. 440-460.
“Sir William Scott. . . . . . This being the fact then, that there were on board public despatches of the enemy, not delivered up with the ship's papers, but found concealed, it is incumbent on the persons intrusted with the care of the ship and her cargo to discharge themselves from the imputation of being concerned in the knowledge and management of this transaction. . . . . .
“Not to have pointed them out to the attention of the captors amounts to a fraudulent dissimulation of a fact, which, by the law of nations, he was bound to disclose to those who had a right to eacamine, and possess themselves of all papers on board. . . . . .
“That the simple carrying of despatches between the colonies and the mother country of the enemy is a service highly injurious to the other belligerent, is most obvious. . . . . . It is not to be argued, therefore, that the importance of these despatches might relate only to the civil wants of the colony, and that it is necessary to show a military tendency; because the object of compelling a surrender being a measure of war, whatever is conducive to that event must also be considered, in the contemplation of law, as an object of hostility, although not produced