ing the belligerent. It cannot be called a hostile or military expedition under the neutrality laws of the United States, for instance, because it lacks the organization of one and is unarmed and not bound to operate against a state hostile to the individuals on board. It is, however, transport service for the benefit of a belligerent. Whether it would be considered a lawful prize by a hostile belligerent, if the passengers were exclusively reservists and the vessel chartered by an agent of the belligerent government, carrying the men for embodiment in the army of that country is probable. The interpretation of the accompanying letter to the declaration of London might lead us to hold the negative, though that letter apparently considers the matter from the point of a regular steamer carrying other passengers than reservists and bound for its usual destination. The transmission of intelligence in the interest of the enemy on a voyage specially undertaken for the purpose would be treated in the same way as the carriage of passengers embodied in his armed force, says the accompanying report. (See Appendix IV.) In commenting upon this Oppenheim says: "The declaration of London does not mention the case of enemy despatches embodying intelligence found on board such a neutral vessel as may not herself be captured for such carriage. For instance: in the case of a mail-steamer pursuing her ordinary course and carrying a despatch of the enemy not in her mail-bags but separately, the vessel may not, according to Article 45, be seized. In this and similar cases may despatches be seized without the seizure of the vessel? It has been pointed out above that in a case of necessity, self-preservation would justify a belligerent in temporarily detaining such a liner for the purpose of preventing the intelligence from reaching the enemy. This certainly fits the case of a vessel transmitting oral intelligence. But if a vessel carried despatches, the necessity of detaining her ceases through the seizure of the despatches themselves. The question as to whether, in such cases, the despatches may be seized without seizure of the vessel ought, therefore, in analogy with Article 47 of the declaration of London, to be answered in the affirmative."1 If the vessel has, as it is supposed in the two cases of Article 45, performed but a single service, no taint remains and she is not liable to capture after the completion of her single voyage. In case, from a want of knowledge, the capture of the vessel would not be valid, the persons on board who belong to the armed forces of the enemy may, nevertheless, be made prisoners of war by the belligerent. If the vessels in these cases are condemned for unneutral services, the goods belonging to the owner are also liable to condemnation.2 "Art. 46. A neutral vessel is liable to condemnation and, in a general way, to the same treatment as would be applicable to her if she were an enemy merchant vessel "(1) If she takes a direct part in the hostilities. (2) If she is under the orders or control of an agent placed on board by the enemy government. "(3) If she is in the exclusive employment of the enemy gov ernment. "(4) If she is exclusively engaged at the time either in the transport of enemy troops or in the transmission of intelligence in the interest of the enemy. "In the cases covered by the present article, goods belonging to the owner of the vessel are likewise liable to condemnation." "The cases here contemplated are more serious than those in Article 45 and justify a severer treatment of the vessel. "First case. The vessel takes a direct part in the hostilities. This may take different forms. It is needless to say that in an armed conflict, the vessel takes all the risks incident thereto... 3 1 Oppenheim, 2d ed., vol. II, pp. 531, 532. * See accompanying letter to declaration of London, Appendix IV. 'See case of Kowshing, Stockton, "Manual," etc., pp. 261-3. Second case. The vessel is under the orders or control of an agent placed on board by the enemy government. His presence marks the relation in which she stands to the enemy. Third case. The whole vessel is chartered by the enemy government and is, therefore, entirely at its disposal; it can use her for different purposes more or less directly connected with the war during its existence, notably as a transport or auxiliary vessel such as the position of colliers which accompany a belligerent fleet. ... "Fourth case. The vessel is at the time exclusively devoted to the carriage of enemy's troops or to the transmission of intelligence in the enemy's interest. So long as such service lasts, the vessel is liable to capture, even if, at the moment when an enemy cruiser searches her, she is engaged neither in the transport of troops nor in the transmission of intelligence."1 "Art. 47. Any individual embodied in the armed forces of the enemy who is found on board a neutral merchant vessel may be made a prisoner of war, even though there be no ground for the capture of the vessel." Since the formulating of the declaration of London two cases have occurred under this head. In January, 1912, during the Turko-Italian War the Italian gunboat Volturno, after having overhauled in the Red Sea the British steamer Africa going from Hadeida to Aden, took off and made prisoners of war Colonel Riza Bey and eleven other Turkish officers. Although the declaration of London is not yet ratified by Great Britain, that power did not protest against the seizure.2 The Manouba, a French steamer in the same war, plying between Marseilles and Tunis, was stopped in the same month by an Italian torpedo-boat destroyer, Agordat, in the Mediterranean, taken by her into Cagliari, and there twenty-nine 1 Accompanying letter, declaration of London, Appendix IV. Turkish passengers, suspected of belonging to the Turkish army, were finally delivered to the Italian authorities. It was agreed between the two governments to refer the case to The Hague tribunal, which was done, and the tribunal on May 6, 1913, decided that the Italian naval authorities had sufficient reason to believe that the Ottoman subjects on board, or at least some of them, were enlisted men in the enemy's army, and hence they had the right to compel the surrender of these passengers to them.1 196. Case of the "Trent."-The case of the Trent approaches the conditions under the last article, though the character of the persons taken off was not military. The circumstances were as follows: The Trent, an English mail-steamer making passage from Havana to St. Thomas, W. I., was stopped at sea by the U. S. S. San Jacinto, under the command of Captain Wilkes, and Messrs. Mason and Slidell, on their way as Confederate commissioners to France and England with their suite, were taken on board the San Jacinto and then transferred to Fort Warren, in Boston Harbor. The Trent was then allowed to proceed on her voyage. Captain Wilkes reported that he had taken off these officials as contraband, as they were the embodiment of contraband despatches. Great Britain demanded their surrender upon the grounds that they were civilians taken out of a neutral ship on the high seas engaged in an innocent voyage from one neutral port to another. These persons were surrendered to Great Britain on the grounds that they were contraband of war, but that they could not be properly separated from the ship, which should have been captured and brought into port for trial by a prize-court. On the whole it can be summed up: 1. That the commissioners could not be considered as con1 A. J. I. L., vol. VII, no. 3, pp. 634, etc. traband of war, being neither military in their character nor engaged or embodied in the military service. 2. The fact that the port of origin and port of destination were both neutral was a presumption of the innocence of the vessel and her passengers. 3. From the discussions arising from this affair, it seems to be the consensus of opinion of authorities that "neutral states have a right to the use of the high seas for diplomatic communication with either belligerent as well as with each other ... and that the diplomatic agent of an enemy state cannot be taken from a neutral vessel or on neutral territory."1 Captain Wilkes had the undoubted right to visit and search the Trent. If resistance to search had been made under present ruling the Trent would have been legally liable to capture. Furthermore, persons engaged in unneutral service or embodied in the military service of the enemy can be considered as analogous to contraband, as we have seen, and can be either taken out of the ship or under certain circumstances taken with the vessel for adjudication and condemnation. It is interesting in this connection to relate the case of Henry Laurens, who was sent during our Revolutionary War upon a mission to Holland, with the authority of Congress, to secure the recognition of the independence of the revolted colonies and obtain a loan of money. He was seized on board of a Dutch packet, a neutral vessel, bound to a neutral port in Holland, he was conveyed as a prisoner, eventually, to the Tower in London, under a charge of treason, until the surrender at Yorktown, when he was exchanged for Cornwallis.2 Oppenheim makes the following statement, which is of an exceptional character. "Quite different," he says, "from the case of seizure of such enemy persons and despatches as a vessel cannot carry without exposing itself to punishment is the case where a vessel has 1 Hershey, "Essentials," etc., pp. 280, etc. Upton, "Law of Nations Affecting Commerce," pp. 360, 361. |