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by operations strictly military. How is this intercourse with the mother country kept up in time of peace? By ships of war, or by packets in the service of the state. If a war intervenes, and the other belligerent prevails to interrupt that communication, any person stepping in to lend himself to effect the same purpose, under the privilege of an ostensible neutral character, does in fact place himself in the service of the enemy state, and is justly to be considered in that character. Nor let it be supposed that it is an act of light and casual importance. The
consequence of such a service is indefinite, infinitely beyond the effect
of any contraband that can be conveyed. . . . . . “Unless, therefore, it can be said that there must be a plurality of offences to constitute the delinquency, it has already been laid down by the Superior Court, in the Constitution, that fraudulent carrying the despatches of the enemy is a criminal act, which will lead to condemnation. Under the authority of that decision, then, I am warranted to hold, that it is an act which will affect the vehicle, without any fear of incurring the imputation, which is sometimes strangely cast upon this court, that it is guilty of interpolations in the laws of nations. If the court took upon itself to assume principles in themselves novel, it might justly incur such an imputation; but to apply established principles to new cases cannot surely be so considered. All law is resolvable into general principles. The cases which may arise under new combinations of circumstances, leading to an extended application of principles, ancient and recognized by just corollaries, may be infinite; but so long as the continuity of the original and established principles is preserved pure and unbroken, the practice is not new, nor is it justly chargeable with being an innovation on the ancient law; when, in fact, the court does nothing more than apply old principles to new circumstances. . . . . “To talk of the confiscation of the noxious article, the despatches, which constitutes the penalty in contraband, would be ridiculous. There would be no freight dependent on it, and therefore the same precise penalty cannot, in the nature of things, be applied. It becomes absolutely necessary, as well as just, to resort to some other measure of confiscation, which can be no other than that of the vehicle. . . . . . “The general rule of law is, that where a party has been guilty of an interposition in the war, and is taken in delicto, he is not entitled to the aid of the court to obtain the restitution of any part of his property involved in the same transaction. It is said that the ter
“interposition in the war' is a very general term, and not to be loosely applied.”
Case of the Susan, 6 Rob. Adm. Rep. 461, note.
“The Susan, an American vessel, captured on a voyage from Bordeaux to New York, having on board a packet addressed to the Prefect of the Isle of France (of which it did not appear that it contained more than a letter, providing for the payment of that officer's salary). The master had made an affidavit, averring his ignorance of the contents, and stating that the packet was delivered to him by a private merchant, as containing old newspapers and some shawls, to be delivered to a merchant at New York. The insignificance of such a communication, and its want of connection with the political objects of the war, were insisted upon. But the court overruled that distinction, under observations similar to those above stated; and on the plea of ignorance observed, that, without saying what might be the effect of a case of extreme imposition practised on a neutral master, notwithstanding the utmost exertions of caution and good faith on his part, it must be taken to be the general rule, that a master is not at liberty to aver his ignorance, but that, if he is made the victim of imposition, practised on him by his private agent, or by the government of the enemy, he must seek for his redress against them.”
Case of the Caroline, (from which citations have already been made,) 6 Rob. Adm. Rep. 461–470.
“This was a case of the same general class as the preceding, on the question of despatches, found on board of an American ship, which had been captured with a cargo of cotton and other articles, on freight on a voyage from New York to Bordeaux. In this case the despatches were those of the French Minister and the French Consul in America, going to the departments of government in France.”
“Sir W. Scott. . . . . . In this case a distinction was taken, very briefly, in the original argument, which I confess struck me very forcibly at the moment, that carrying the despatches of an ambassador, situated in a neutral country, did not fall within the reasoning on which the general principle is founded; and I cannot but say, that the further argument which I have heard on that point, and my own consideration of the subject, have but confirmed the impression which I then received of the solidity of this distinction. . . . . .
“It has been asked, What are despatches 2 To which, I think, this answer may safely be returned: that they are all official communications of official persons on the public affairs of the government. The comparative importance of the particular papers is immaterial, since the court will not construct a scale of relative importance, which in fact it has not the means of doing, with any degree of accuracy, or with satisfaction to itself. It is sufficient, that they relate to the public business of the enemy, be it great or small. . . . . . It is not to be said, therefore, that this or that letter is of small moment; the true criterion will be, Is it on the public business of the state, and passing between public persons for the public service? That is the question. - - - - - But if the papers so taken relate to public concerns, be they great or small, civil or military, the court will not split hairs, and consider their relative importance. . . . . .
“The circumstances of the present case, however, do not bring it within the range of these considerations, because it is not the case of despatches coming from any port of the enemy's territory, whose commerce and communications of every kind the other belligerent has a right to interrupt. They are despatches from persons who are in a peculiar manner the favorite objects of the protection of the law of nations, ambassadors, resident in a neutral country, for the purpose of preserving the relations of amity between that state and his own government. . . . . .
“It has been argued truly, that, whatever the necessities of the negotiation may be, a private merchant is under no obligation to be the carrier of the enemy's despatches to his own country. Certainly he is not: and one inconvenience, to which he may be held fairly subject, is that of having his vessel brought in for examination, and of the necessary detention and expense. He gives the captors an undeniable right to intercept and examine the nature and contents of the papers which he is carrying; for they may be papers of an injurious tendency, although not such, on any a priori presumption, as to subject the party who carries them to the penalty of confiscation, and by giving the captors the right of that inquiry, he must submit to all the inconvenience that may attend it. Ship and cargo restored on payment of captors' expense.”
It will be found, we think, from a careful examination of these opinions, that the general principle applicable to the case is, that the subject or citizen of the neutral nation may not do anything directly auxiliary to the warlike purposes of a belligerent, or, as it is expressed in other words, anything which has a direct tendency to promote his warlike operations; and that the transportation of agents whose business is to promote or facilitate any hostile operations, or of despatches which have, or may be presumed to have, a hostile character, is a rendition of aid to the belligerent which justifies the capture of the persons and despatches, and if done with knowledge, actual or constructive, is such a violation of neutrality as authorizes the capture and confiscation of the neutral vessel.
Speaking of the right of search, it has been said: “The only security that nothing is to be found inconsistent with amity and the law of nations is the right of personal visitation and search, to be exercised by those who have an interest in making it.” We have here another expression of the general principle which regulates neutral rights and duties. It is not merely that the neutral is not warranted in carrying this or that article, or this or that person. He is not to carry anything which is inconsistent with the amity which subsists between his nation and the belligerent, and which he should maintain toward the belligerent.
Having ascertained the principles which are applicable, we turn again to the facts of this case. Probably no one doubts that Messrs. Mason and Slidell were the public agents of the Confederate States, charged with all manner of duties of a belligerent character. But Great Britain may reasonably ask for some evidence of the fact, as a justification for their removal from the Trent. The proof will doubtless be found to be abundant, but our space permits only two or three suggestions. In the first place, there is the message of Mr. Davis, in which he states that they are commissioned, and speaks of them as “Ministers,” showing them to be public agents for the promotion of the interests of the revolutionary government. In the next place, there is a conclusive presumption that their agency was of a belligerent character, because the people of the Confederate States, being in rebellion, waging a civil war, and acknowledged only as a belligerent power, whatever is to be done for their success is necessarily of a belligerent character. The voyage of their agents to Europe was “directly auxiliary to the warlike purposes” of the Confederacy, and as hostile as if they had been officers or soldiers on their way to aid the enemy. An attempt merely to procure an acknowledgment of the independence of the Confederate States, while the United States are surrounding them with forces by land and sea, is of itself an act of hostility to the United States. The object could only be encouragement and aid in the prosecution of the war, as there is no practical independence. Similar remarks apply to the despatches. That such documents were on board is not now concealed. The failure of Captain Wilkes to find them has been a matter of exultation. Lieutenant Fairfax was not bound to search for them after the captain of the Trent refused to show his passenger list or to give any information. He might well suppose that they were then beyond reasonable search, perhaps concealed by some of the ladies connected with the agency, in what the Boston Post, speaking of the secret transmission of traitorous correspondence by Secession ladies in the vicinity of Washington, termed “the holy precincts of their nether garments.” The Confederate States had no minister, nor any consul, in Europe; but they had agents there actively attempting to procure an acknowledgment of their independence, and engaged in purchasing and transmitting munitions of war to the Southern ports. The despatches, then, must be presumed to relate to these subjects. The fact that the voyage of the neutral vessel was from one