The Sun.
London, England, 1862-01-28 00:00:00

plained ; and it is impossible that men, or despatches,
which do not come within that principle, can in this sence
be contraband. The penalty of knowingly carrying con-
traband of war is, as Mr. Seward states, nothing less than
the confiscation oF the ship; but it is impossible that this
penalty can Le incurred when the neutral has done no more
than employ means usual among nations for maintaining
his own proper relations with one of the belligerents. It is
of the very essence of the definition of contraband that the
articles should have a hostile, and not a neutral, destina-
tion. " Goods," says Lord Stowell,t going to a neutral
port, cannot come under the description of contraband, all
goods going there being equally lawful. The rule respect-
ing contraband," he adds, "as I have always understood
it, is that articles must be taken in delicto, in the actual
Prosecution of a voyage to an enemy's port." On what
just principle can it be contended that a hostile destination
is less necessary, or a neutral destination less noxious, for
constituting a contraband character in the case of public
agents or despatches, than in the case of arms and ammu-
nition?

Mr. Seward seeks to support his conclusion on this point
by a reference to the well-nown dictum of Sir Wm. Scott
in the case of the Caroline, that "you may stop the Ambas-
sador of your eneny on his passage; "$ and to another dic-
tum of the same judge, in the case of the Orozembo, that
civil funcionaries, if sent for a purpose intimately con-
nected with the hostile operations,"¢ may fall under the
sa
same rule with persons whose employment is directly mili-
tary. These quotations are, as it seems to her Majesty's Go-
vernment, irrelevant. The words of Sir W. Scott are, in
both cases, applied by Mr. Seward in a sense different from
that in which they were used. Sir W. Scott does not say
that an Ambassador, sent from a belligerent to a neutral
State, may be stopped as contraband while on his passage
on board a neutral vessel belonging to that or any other
neutral State ; nor that, if he be not contraband, the other
belligerent would have any right to stop him on such a voy-
age. The sole object which Sir Wm. Scott had in view was
to explain the extent and limits of the doctrine of the in-
violability of Ambassadors, in virtu?, of that character ; for
he says :
" The limits that are assigned to the operations of war
against them, by Vattel and other writers upon these sub-
jects, are, that you may exercise your right of war against
them wherever the character of hostility exists. You may
stop the Ambassador of your enemy on his passage, but
when he has arrived, and has taken upon nim the func-
tions of his cffice, and has been admitted in his representa-
tive character, he becomes a sort of middle-man, entitled to
peculiar privileges, as set apart for the yrotection of the
relations of amity and peace, in maintaining which all
nations are in some degree interested."
There is certainly nothing in this passage from which an
inference can be drawn so totally opposed to the general
general tenor of the whole judgment, as that an Ambassa-
dor proceeding to the country to which he is sent, and on
board a neutral vessel belonging to that country, can be
stopped on the ground that the conveyance of such an
Ambasiador is a breach of neutrality, which it must be if
he be contraband of war. Sir W. Scott is here expressing
not his own opinion merely, but the doctrine which he con-
siders to have been laid down by writers of authority upon
the evbject. No writer of authority has over suggested that
an Ambassador proceeding to a neutral State on board one
of its merchant ships iseentraband of war. The only writer
named by Sir William Scott is Vattel,* whose words are
these : " On peut encore attaquer et arreter ses gens" (i.. ,
gens de l'ennemi) " partout od on a la libert4 d'exercer des
acfes d'hostiliti. Non seulement done on peut justement
refurer le passage anx Ministres qu'un ennemi envoye
d'autrea Souverains ; on les errete meme, s'ils entrepren-
nent de passer secratement et sans permission dans les lieux
dont on est maitre."

And he adds as an example the seizure of a French Am.
bassador, when passing through the dominions of Hanover
during war between England and France, by the King of
England, who was also Sovereign of Hanover.

The rule, therefore, to be collected Ltom these authorities
is, that you may stop an enemy's Ambassador in any place of
which you are yourself the master, or in any other place
where you have a right to exercise acts of hostility. Your
own territory, or ships of your own country, are places of
which you are yourself the master. The enemy's territory
or the enemy's ships are places in which you have a right
to exercise acts of hostility. Neutral vessels, guilty of no
violation of the laws of neutrality, are places where you have
no right to exercise acts of hostility.

It would be an inversion of the doctrine that Ambassa-
dors have peculiar privileges to argue that they are less
protected than other men, The right conclusion is that an
Ambassador sent to a neutral Power is inviolable on the
high seas, as well as in neutral waters, while under the
protection of the neutral flag.
The other dictum of Sir William Scott, in the case of the
Orozembo. is even less pertinent to the present question.
That related to the case of a neutral ship which, upon the
effect of the evidence given on the trial, was held by the
Court to have been engaged as an enemy's transport, to
convey the enemy's military officers, and some of his civil
officers whose duties were intimately connected with mili-
tary operations, from the enemy's country to one of the
enemy's colonies, which was about to be the theatre of those
operations, the whole being done under colour of a simu-
lated neutral destination. But as long as a neutral Govern-
ment, within whose territories no military operations are
carried on, adheres to its profession of neutrality, the duties
of civil officers on a mission to that Government and within
its territory cannot possibly bo " connected with" any
"military operations" in the sense in which those words
were used by Sir William Scott, as, indeed, is rendered
quite clear by the passages already cited from his ownjudg-
ment in the case of the Caroline.
• Vatel, lib. iv., chap. 7, sec. 85.
In connection with this part of the subject it is necessary
to notice a remarkable passage in Mr. Seward's note, in
which he says, "I assume, in the present case, what, as I
read British authorities, is regarded by Great Britain her-
selfas true maritime law, that the circumstance that the Trent
was proceeding from a neutral porf to another neutral port
does not modify the right of the belligerent capture." If
indeed the immediate and ostensible voyage of the Trent
had been to a neutral port, but her ultimate and real desti-
nation to some port of the enemy, her Majesty's Govern-
ment might have been better able to understand the refe•
rence to Bri,ish atuthorities contained in this passage. It
is undoubteely the law as loid down by British authorities,
that if the real destination of the vessel be hostile (that is,
to the enemy or the enemy's country), it cannot be covered
and rendered innocent by a fictitious destination fo o neu-
tral port. But if the real terminus of the voyage be bone
fide in a neutral territory, no English, nor, indeed, as her
Majesty's Gavernment believe, any American authority
can be found which has ever given countenance to the doc-
trine that either men or despatches can be subject during
ouch a voyage, and on board such a neutral vessel, to bel-
ligerent capture as contraband of war, Her Majesty's Go-
vernment regard such g doctrine as wholly• irreconcileable
with the true principles of maritime law ; and certainly
with those principles as they have been understood in the
Courts of this country.

It is to be further observed that packets engaged in the
postal service, and keeping up the regular and periodical
communications between the different countries of Europe
and America, and other parts of the world, though in the
absence of treaty stipulations they may not be exempted
from visit and search in time of war, nor from the penalties
of any violation of neutrality, if proved to have been know-
ingly committed, are still, when sailing in the ordinary and
innocent course of their legitimate employment, which con-
sists in the conveyance of mails and passengers, entitled to
peculiar favour and protection from all Governments in
whose • service they are engaged. To detain, disturb, or
interfere with them, without the very gravest cause, would
be an act of a most noxious and injurious chaaacter, not
only to a vast number and variety of individual and pri•
vate interests, but to the public interests of neutral and
friendly Governments.

It has been necessary to dwell upon these points in some
detail, because they involve principles of the highest im-
portance, and because if Mr. Seward's arguments were
acted upon as sound, the most injurious consequences
might follow.

For instance, in the present war, according to Mr,
Seward's doctrine, any packet ship carrying a Confederate
agent from Dover to Calais, or from Calais to Dover, might
be captured and carried to New York. In case of a war
between Austria and Italy, the conveyance of an Italian
Minister or agent might cause the capture of a neutral
packet plying between Malta and Marseilles, or between
Malta and Gibraltar, the condemnation of the ship at Trieste,
and the confinement of the Minister or agent in an Austrian
prison. So in the late war between Great Britain and
France on the one hand, and Russia on the other, a Russian
Minister going from Hamburg to Washington, in an Ame-
rican ship, might have been brought to Portsmouth, the
ship might have been condemned, and the Minister sent to
the Tower of London. So also a Confederate vessel of war
might capture a Cunard steamer on its way from Halifax
les
to Liverpool, on the ground of its carrying despatches from
Mr. Seward to Mr. Adams. rinaip asserted
In view, therefore, of the erroneous P
by Mr. Seward, and the consequences they
involve, her
the yture of an
Majesty': Government think it neeicessary to declare that
they would not acquiesce in y British
merchant ship in circumstances similar to those of the
Trent, and thai the fact of its being brought before a Prize
Court, though it would alter the character, would not dimi-
nwihshichthe
wouldgravity,thereby the be submitted.
of the offense against the law of nations
Having disposed of the question whether the persons
named and their supposed despatches were contraband al
war, I am relieved from the necessity of discussing the
other questions raised by Mr. Seward, namely, whether
y a right to stop and search the
and their supposed d
assuming that he possessed it, was ex-
' Trent Capt . Wilkesort
h e
she had
personsil
espatces ;
whether
himri in a lawful and proper manner ; and
whethereriestehd by t
right,
erhtheah had a right to capture the persons found on
board.

The fifth question put by Mr. Seward, namely, whether
Captain Wilkes exercised the alleged right of capture in the
manner allowed and recognised by the law of nations, is re-
solved by Mr. Seward himself in the negative.

The Imina, 3 Chr. Rob., 167.
':The Caroline; 6 Chr. Rob., 468.
It The Orozembo; 6 Chr. Rob., 434.