The French champion of neutral rights vindicates the immunity of despatches against English construction in pointed language.
“We must be permitted to protest against the pretension set up by the Americans of considering the transportation of despatches as an act of contraband, and consequently of maintaining that the stopping of the Trent is justified by the fact that there were found on board despatches of the Confederate Government. This pretension, which has always been maintained by England, and which even at the present day is still avowed by its journals, is wholly contrary to all the principles of International Law.”[97]
But Continental testimony is not uniform. So considerable an authority as Heffter recognizes the liability of a neutral vessel for “voluntarily forwarding despatches to or for a belligerent.”[98] This is on general grounds, independent of treaty or national usage.
Even if the ship were liable, so that Captain Wilkes would have been justified in bringing the Trent into port for adjudication, it does not follow that the two Rebels could be summarily seized and taken therefrom. Here again we are brought to that American principle which condemns the pretension of seizing even enemies on board a neutral vessel, unless they are soldiers in actual service, and has constantly cried out against the desecration of our decks by British officers seizing our peaceful sailors under claim of allegiance to the British crown.
There is yet another question which remains. Assuming that despatches are contraband, would their presence on board a neutral ship, sailing between two neutral ports, render the voyage illegal? The mail steamer was sailing between Havana, a port of Spain, and St. Thomas, a port of Denmark. Here again, if we bow to English precedent, the answer is prompt. The British oracle has spoken. In a well-considered judgment, Sir William Scott declares that despatches taken on board a neutral ship, sailing from a neutral country and bound for another neutral country, are contraband,—but that, where there is reason to believe the master ignorant of their character, “it is not a case in which the property is to be confiscated, although in this, as in every other instance in which the enemy’s despatches are found on board a vessel, he has justly subjected himself to all the inconveniences of seizure and detention, and to all the expenses of those judicial inquiries which they have occasioned.”[99] Such is the Law of Nations according to Great Britain.
Even if this rule had not been positively repudiated by the United States, it is so inconsistent with reason, and, in the present condition of maritime commerce, so utterly impracticable, that it can find little favor. If a neutral voyage between two neutral ports is rendered illegal on this account, then the postal facilities of the world, and the costly enterprises by which they are conducted, are exposed to interruptions under which they must at times be crushed, to the infinite detriment of universal commerce. If the rule is applicable in one sea, it is applicable in all seas, and there is no part of the ocean which may not be vexed by its enforcement. It would reach to the Mediterranean and to the distant China seas as easily as to the Bahama Channel, and be equally imperative in the chops of the British Channel. Not only the stately mail steamers traversing the ocean would be subject to detention and possible confiscation, but the same penalties must attach to the daily packets between Dover and Calais. The simple statement of such a consequence, following directly from the British rule, throws instant doubt over it, which the eloquent judgment of Sir William Scott cannot remove.
Here again our way is clear. American principle and practice have settled this question also. Wheaton commences his statement of the Law of Contraband by saying, “The general freedom of neutral commerce with the respective belligerent powers is subject to some exceptions. Among these is the trade with the enemy in certain articles called contraband of war.”[100] It will be perceived that the trade must be with the enemy, not with the neutral. And here the author followed the suggestions of reason and the voice of American treaties. In the celebrated treaty with Great Britain negotiated by John Jay in 1794, after an enumeration of contraband articles, it is expressly said, “And all the above articles are hereby declared to be just objects of confiscation, whenever they are attempted to be carried to an enemy.”[101] Of course, when on the way to neutrals, they are free. And the early treaties negotiated by Benjamin Franklin and John Adams are in similar spirit; and in precisely the same sense is the treaty with Prussia in 1828, which in its twelfth article revives the thirteenth article of our treaty with that same power in 1799, by which contraband is declared to be detainable only when carried to an enemy. Even if this rule were of doubtful authority with regard to articles of acknowledged contraband, it is positive with regard to despatches, which, as we have already seen, are among “merchandises and things” declared free; with regard to which our early treaties secured the greatest latitude. Nothing can be broader than the words in the treaty of 1778 with France:—
“So that they may be transported and carried in the freest manner by the subjects of both confederates, even to places belonging to an enemy, such towns or places being only excepted as are at that time besieged, blocked up, or invested.”[102]
But the provision in the treaty with the Netherlands of 1782 is equally broad:—