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 2 1 Hershey, "Essentials," etc., pp. 280, etc. Upton, "Law of Nations Affecting Commerce," pp. 360, 361. such enemy persons and despatches on board as she is allowed to carry, but whom a belligerent believes it to be necessary in the interest of self-preservation to seize. Since necessity in the interest of self-preservation is, according to international law, an excuse for an illegal act, a belligerent may seize such persons and despatches, provided that such seizure is not merely desirable but absolutely necessary in the interest of self-preservation, as, for instance, in the case where an ambassador of the enemy on board a neutral vessel is on the way to submit to a neutral a draught treaty of alliance injurious to the other belligerent.' This, of course, is an exigency which was not existing in the Trent affair. 197. The Opening to Neutrals of a Trade Closed in Peace. -Under a commentary on Article 46 of the declaration of London, previously mentioned, the accompanying report says that "it was proposed to treat as an enemy merchant vessel a neutral vessel making, at the time, and with the sanction of the enemy government, a voyage which she has only been permitted to make subsequent to the outbreak of hostilities or during the two preceding months. This rule would be enforced notably upon neutral merchant vessels admitted by a belligerent to a service reserved in time of peace to the national merchant marine of that belligerent, for instance, to the coasting trade. Several delegations formally rejected this proposal, so that the question thus raised remains an open one."2 The American delegation was one of those who formally rejected this proposition, which was a revival of the well-known rule of the war of 1756, by which Great Britain claimed the right to treat neutral vessels as enemy ships when they engaged in a colonial or other trade in time of war denied them in time of peace. Such a rule, if adopted, would have applied to our coasting trade, with its extension to the Hawaiian Islands and the Philippines, and to the "cabotage" of the French. The 1 Oppenheim, 2d ed., vol. II, p. 532. matter is left open now to such practice as the individual states should follow until it may be decided by an international prize-court. The matter was formally presented by the British delegation in a memorandum upon the subject. The German delegation presented a memorandum which contained an assertion that "a ship flying a neutral flag can, nevertheless, be treated as an enemy ship, if she is making at the time and with the sanction of the enemy government a voyage which she has only been permitted to make subsequently to the outbreak of hostilities or during the two preceding months." Practically France, Russia, and Holland sided with the United States in opposition to this proposition, which was upheld by a minority only of the conference. The advocacy of the rule of the war of 1756 has been revived of late by such modern English writers as Oppenheim, Higgins, Manning, and Phillimore, and originally by such early authorities as Sir William Scott, Mr. James Stephen, and seconded by some American authorities such as Chancellor Kent, Justice Story, General Halleck, and Admiral Mahan. On the other hand, Wharton, citing Lyman's "Diplomacy of the United States," says that: "To permit one belligerent to shut out neutrals from a commerce not being in contraband of war or in evasion of blockade would impose upon neutrality burdens so intolerable as to make war on its part preferable to peace." Hall, an English authority, says: "The arguments which may be urged on behalf of the right of neutrals to seize every occasion of extending their general commerce do not seem susceptible of a ready answer. Neutrals are in no way privy to the reasons which may actuate a belligerent in throwing open a trade which he has previously been unwilling to share with them. They can be no more bound to inquire into his objects in offering it to them than they are bound to ask what it is proposed to do with the guns which are bought in their markets. The merchandise which they carry is in itself innocent or is rendered so by being put into their ships; in the case of the coasting trade they take it to ports into which they can carry like merchandise brought from a neutral harbor, and the obstructing belligerent is unable to justify his prohibition by any military strength which it confers upon him."1 Higgins, in discussing the case in favor of the rule, closes with these remarks: "Every assistance given to a belligerent by neutral merchant ships tends to the lengthening of war, the increased suffering of the combatants and the civilian population, and the greater dislocation of the trade of the world. It is surely in accordance with the general principles of justice and equity and a logical deduction from admitted principles of the duties as a generally accepted international legal doctrine."2 198. Rescue of Shipwrecked Belligerents by Neutral Vessels.-The most pertinent article concerning this subject beyond the references made to hospital ships is Article 9 of The Hague convention of 1907 for the adaptation of the principles of the Geneva convention of 1906 to maritime war. reads as follows: It "Belligerents may appeal to the charity of the commanders of neutral merchantmen, yachts, or boats to take on board and tend the sick and wounded. "Vessels responding to this appeal, as also the vessels which have of their own accord rescued wounded, sick, or shipwrecked men, shall enjoy special protection and certain immunities. In no case can they be captured for having such persons on board; but, subject to any undertaking that may have been given to them, they may remain liable to capture for any violations of neutrality they may have committed."3 Article 12, which supplements the above rather vague article, reads as follows: 1 Hall, 6th ed., pp. 634, 635. * Higgins, "War and the Private Citizen," p. 192. 'Higgins, "Peace Conferences," Convention X, p. 367. "Any war-ship belonging to a belligerent may demand the surrender of the wounded, sick, or shipwrecked who are on board military hospital ships, hospital ships belonging to relief societies or to private individuals, merchant ships, yachts, and boats, whatever the nationality of such vessels." This touches what is known as the Deerhound affair of June 19, 1864, which occurred during the American Civil War. Briefly, it may be stated as follows: Captain Semmes and some of the crew of the Alabama, after her fight with the Kearsarge off Cherbourg where she was sunk in combat, were picked up by request by the British yacht Deerhound, the owner of which claimed for the rescued the inviolability of the neutral flag, and, while dropping out of range of the Kearsarge, refused to surrender the shipwrecked and rescued belligerents on board, in which action they were sustained by the British Government. The proposition above quoted in Article 12 was originally proposed by then Captain Mahan as an American delegate to The Hague conference of 1899 but not adopted. Of this matter Higgins, an English writer, says: "The solution of the difficulty provided by this article is, however, one which may be justified by practical considerations. Among those on board a hospital or merchant ship may be found the 'brain' of one of the belligerent navies, and military necessity might be appealed to as a justification for his removal. A belligerent would take the risk of complications with the neutral power. Moreover, the neutral captain might, from unforeseen circumstances, be unable to land the sick, wounded, or shipwrecked at a neutral port where they would be interned."1 The British delegation upon this article made the reservation that "His Majesty's Government understands Article 12 to apply only to the case of combatants rescued during or after a naval engagement in which they have taken part." The case of the rescue of the officers and crew of the Russian 1 Higgins, "Peace Conferences," p. 389. |