Some Questions of International Laiv. them, being engaged in an unneutral service, is liable to confiscation.1 On the other hand the owners and captains of neutral mail steamers, by virtue of the nature of the trust imposed upon them, cannot be supposed to have knowledge of the contents of all the various communications entrusted to their charge. "In recent times usage2 has grown up of exempting packet-boats, not merely • 'The cargo is also confiscated in cases where the "owners are directly involved in the knowl edge and conduct of the guilty transaction." Lord Stowell in the case of the Atalanta, 6 Robin son, 460. 'During the Mexican War, British mailsteamers were permitted to pass in and out of Vera Cruz. During our Civil War the British Government demanded that the United States should adopt the rule that "all mail-bags, clearly certified as such, shall be exempt from seizure and violation." A few days later (October 31, 1862), the United States Government issued in structions to the effect that "public mails of any friendly or neutral Power, duly certified or authenticated as such," found on board captured vessels, "shall not be searched or opened, but be put» as speedily as may be convenient, on the way to their designated destination. This in struction, however, will not be deemed to protect simulated mails verified by forged certificates or counterfeited seals." See Dana's Wheaton, note 229, pp. 659-60. It is to be noted that these in structions merely relate to "public mails, duly authenticated." For the diplomatic correspon dence bearing on this subject, see Bernard, Neu trality, pp. 319-23. In 1870, France "insisted upon the condition that an agent of the neutral State should be in charge of the mail-bags and declare them to be free from noxious communications." Lawrence, p. 627. At the outbreak of the Span ish-American War in 1898. President McKinley declared that "the voyages of mail-steamers are not to be interfered with except on the clearest grounds of suspicion of a violation of law in re spect to contraband or blockade." (But the Spanish Government granted no such concession to neutrals.) A similar indulgence to neutrals was granted by Great Britain during the Boer War in South Africa. "On the other hand, many modern cases may be mentioned where no indulgence, or a very limited one, was given. For instance, in 1898, Spain did not duplicate the American concession, and in 1902, Great Britain and Germany would not allow neutral mail-steamers to pass through their blockade of Venezuelan ports, but stopped them instead, and, after overhauling their corres pondence and detaining what seemed noxious, sent the rest ashore in boats belonging to the blockading squadron." Lawrence, War and Neu trality, p. 191. It is. however, to be observed that this is a case of a blockade, and has no bearing on the subject of search on the high seas.
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fiom condemnation, but also from" visit, search, and capture." This immunity from search and capture has, however, been "granted by belligerents as a matter of grace and favor" rather than of law, and is by no means absolute or unlimited.3 In view of -the great variety in practice and the uncertainty of the rule, it is highly desirable that this matter of the right of belligerent search of mail-steamers be re ferred for discussion and settlement to an International Conference at the close of the war and that, in case of a dispute on this subject arising which cannot be settled through the ordinary channels of diplomacy, it be referred to The Hague Tribunal for an authoritative decision. In the case of. the Prinz Heinrich, it would appear that the Ger man Government was correct in claiming that the Russians had no right to remove mail bags in a mass from the steamer. The Prinz Heinrich was, however, subject to visit and search if there was reasonable ground "Lawrence, Principles, p. 627. Hall (p. 68if) is of the opinion that mail-steamers, "although at present secure from condemnation, are no more exempted than any other private ship from visit; nor docs their own innocence protect their noxious contents, so that their post-bags may be seized on account of dispatches believed to be within them." But he thinks that "the secrecy and regularity of postal communication is now so necessary to the intercourse of nations, and the interests affected by every detention of a mail are so great, that the practical enforcement of the belligerent right would soon become intol erable to neutrals. . . . At the same time, it is impossible to overlook the fact that no national guarantee of the innocence of the contents of a mail can really be afforded by a neutral Power." He concludes, "probably the best solution of the difficulty would be to concede immunity as a gen eral rule to mail-bags, upon a declaration in writ ing being made by the agent of the neutral Gov ernment on board that no dispatches are being carried by the enemy, but to permit a belligerent to examine the bag upon reasonable grounds of suspicion being specifically stated in writing." Taylor, the most recent American authority on Public International Law (§668, pp. 750-51), says: "The fact that the neutral carrier is permitted to convey certain classes of mail matter does not deprive the belligerent of the rieht to search his mail-bags in order to ascertain whether or no he is engaged in the transport of noxious dis patches."
