Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 4, 1871

[From the London Times, January 11, 1871.]

Law report—Court of admiralty, January 10—Before the Right Hon. Sir. R.J. Phillimore—the International and cargo.

This was an application under the foreign enlistment act, 1870, which provides, among other things, that “if any person within Her Majesty’s dominions, without the license of Her Majesty, does any of the following acts—that is to say, builds or agrees to build * * any ship * * or issues or delivers any commission for any ship * * or equips any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign state at war with any friendly state, or dispatches, or causes to be dispatched, any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign state at war with any friendly state, such person shall be deemed to have committed an offense against this act, and * * the offender shall be punishable by fine and imprisonment, * * and the ship in respect of which any such offense is committed and her equipment shall be forfeited to Her Majesty.” The act also provides that the owner of the ship so detained may apply to the court of admiralty, which may release the ship with costs and damages. It appeared that on the 28th day of November last, the India-rubber, Gutta-percha, and Telegraphic Works Company, (limited,) by their manager, agreed with M. Steenackers as directeur général des télégraphes et des postes to furnish and lay submarine cables along various parts of the French coast, extending from Dunkerque to Verdon, near Bordeaux, and that the International, a vessel belonging to that company, was, accordingly, laden with cable and proper fittings, and while she was lying off the company’s works at Silvertown, and ready to start, she was, on the 21st of December last, arrested by order of the government. Various negotiations ensued with the government to obtain a release of the vessel, but without avail; and a motion to the court upon affidavits was now made on behalf of the company for a release of the vessel, with costs and damages.

The attorney general, (with him the solicitor general, the Queen’s advocate, and Mr. Archibald,) for the Crown, applied that the case might be postponed till Thursday to give the crown time to answer the affidavits of the other side, which had only been delivered on Saturday last.

Sir J. Karslake, Q. C., (with him Mr. T. Hughes, Q. C., Mr. Bindley, and Mr. Pritchard,) for the company, resisted the application, on the ground that, as the seizure was made on the 21st of last month, the advisers of the Crown must be well aware of the facts of the case, and ought to have been now prepared with affidavits. Delay was of the utmost consequence to the company, as they were under contract with the French government to lay the cable before the 31st instant.

Sir R. J. Phillimore was of opinion that it was extremely expedient that the matter should, as the statute requires, be decided with celerity and dispatch; still, he should be sorry to be too precipitate, as the question was one of the gravest importance. The application was the first of its kind that had been made to the court under the statute. His lordship then ordered that the affidavits should be filed by 1 o’clock this day, and that the motion should be heard on Thursday morning.

[From the London Times, January 13, 1871.]

Court of admiralty, January 12—Before the Right Hon. Sir. R.J. Phillimore—the International and cargo.

This was an application under the foreign enlistment act, 1870, which provides, among other things, that “if any person within Her Majesty’s dominions, without the license of Her Majesty, does any of the following acts—that is to say, builds or agrees to build * * * any ship * * * or issues or delivers any commission for any ship * * * or equips any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign state at war with any friendly state, or dispatches, or causes to be dispatched, any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign state at war [Page 425] with any friendly state, such person shall be deemed to have committed an offense against this act, and, * * * the offender shall be punishable by fine and imprisonment, * * * and the ship in respect of which any such offense is committed and her equipment shall be forfeited to Her Majesty.” By the interpretation clause of the act “military service shall include military telegraphy, and any other employment whatever in, or in connection with, any military operation.” The act also provides that the owner of the ship so detained may apply to the court of admiralty, which may release the ship with costs and damages. It appeared that on the 28th day of November last the India-rubber, Gutta-percha, and Telegraphic Works Company, (limited,) by their manager, agreed with M. Steenackers, as directeur général des télégraphes et des postes, to furnish and lay submarine cables along various parts of the French coast, extending from Dunkerque to Verdon, near Bordeaux, and that the International, a vessel belonging to that company, was accordingly laden with cable and proper fittings, and while she was lying off the company’s works at Silvertown, and ready to start, she was, on the 21st of December last, arrested by order of the government.

Various negotiations ensued with the government to obtain a release of the vessel, but without avail, and on Tuesday last the court was moved for a release of the vessel with costs and damages, when the further hearing was postponed till to-day, to enable the Crown to answer the affidavits of the applicants. The application for release was founded upon the affidavit of Mr. Gray, manager of the company, in which he stated, among other things, that the vessel was bought in July last, partially built, and afterward fitted for the company’s ordinary business of laying submarine cables; and that after she was delivered to the company she was used for laying for the British government a submarine cable between Jersey and England; that the present contract was made with M. Steenackers as a civil functionary, answering to our postmaster general, under whose direction all telegraphic and postal arrangements are conducted, whether for public or private purposes, except military telegraphy, which is provided for by the minister of war and naval telegraphy, which is under the minister for marine. Mr. Gray also stated his belief that the cables were to be used for ordinary public and private business, though, no doubt, messages would sometimes be sent by them relating to military matters. M. Sauvinet, the chief secretary of M. Steenackers, also made an affidavit corroborating Mr. Gray, and stating, also, that at the date of the contract the seat of the government was at Tours, and that there was no intention to remove it to Bordeaux; that the system of submarine cables provided for by the contract was designed to replace or add to the inland telegraphic communications broken by the war, and to keep the commercial port of Bordeaux in communication with England, America, and the north of France and Europe; that all the telegraphic communication between Europe and America is now carried on by means of the French Atlantic submarine cable bet ween Brest and America, and if the intended cables were laid they would afford another means of communication between England and Brest, and so with America, and that the submarine telegraph cable between France and Algeria has been laid by Englishmen by contract with M. Steenackers since the commencement of the war. On behalf of the Crown affidavits were filed by Mr. Clare, secretary to the submarine telegraph company, and Mr. Scudamore, secretary to the general post-office, stating the number of lines of telegraph between this country and France, the number of messages which can be transmitted in the course of the day, and their belief that the proposed cable would have little value for commercial purposes, and would not be wanted after the close of the war. A copy of the bulletin, dated the 10th of December, was also produced, by which the government was transferred from Tours to Bordeaux.

By the terms of the contract the cables were to be laid before the 31st instant, under a penalty of 44,000l; i. e., half the price mentioned in the contract.

Sir J. Karslake, Q. C., Mr. T. Hughes, Q. C., Mr. Findley, and Mr. Pritchard appeared for the company; and the attorney general, the solicitor general, the Queen’s advocate, and Mr. Archibald for the Crown.

The hearing of the application occupied the whole day, and his lordship reserved his decision, but stated that he would give judgment very shortly.

[From the London Times, January 18, 1871.]

The International and cargo—Court of admiralty, January 17—Before the Right Hon. Sir. R.J. Phillimore.

This was an application under the foreign enlistment act, 1870, on behalf of the India-rubber, Gutta-percha and Telegraphic Works Company, the owners of the International steam-vessel, for a release, with costs and damages, of the vessel, which was arrested in the river Thames by order of the government on the 21st of December last, particulars of which have already appeared.

[Page 426]

Sir J. Karslake, Q. C., Mr. T. Hughes, Q. C., Mr. Lindley, and Mr. Pritchard appeared for the company; the attorney general, the solicitor general, the queen’s advocate, and Mr. Archibald for the Crown.

The case was argued on the 12th instant, and the court now gave judgment.

Sir R. Phillimore: This is an application, under the 23d section of 33 and 34 Vic., cap. 90, by the India-rubber, Gutta-percha, and Telegraph Works Company, (limited,) the owners of the ship International and her cargo, for the release of that vessel and cargo, which have been and are now detained by the order of the secretary of state under the provisions of the same statute. This statute, passed during the last session, under which the authority of this court is now for the first time evoked, is in my judgment very important and very valuable; strengthening the hands of Her Majesty’s government, and enabling them to fulfill more easily than heretofore that particular class of international obligations which may arise out of the conduct of Her Majesty’s subjects toward belligerent foreign states with whom Her Majesty is at peace. It is the duty, I think, of the court, upon whom is devolved the application of this statute to particular cases, so to construe it as, on the one hand, to give, if possible, due and full execution to its main purpose; and, on the other, not to strain the provisions of it so as to fetter the private commerce of Her Majesty’s subjects beyond the express limits which the statute for the general interests of the public weal has prescribed. The statute provides, among other things, “that if any person within Her Majesty’s dominions dispatches, or causes or allows to be dispatched, any ship with intent or knowledge, or having reasonable cause to believe, that the same shall or will be employed in the military or naval service of any foreign state at war with any friendly state, such person shall be deemed to have committed an offense against this act.” Then certain penalties ensue to the person and to the ship. It is with the latter only that the court is now concerned. The act confers special powers on the secretary of state, (section 23,) which he may exercise in two ways. He may issue a warrant for the detention of a suspected vessel, and then simply detain such vessel, taking no further proceedings and leaving the owner to make his application for release to this court; or he may proceed to obtain the condemnation and forfeiture of the vessel to the Crown. The secretary of state, in this instance, has taken the former and milder course, and does not, I am informed by the attorney general, think it a case in which further or more serious steps should hereafter be taken. “Interest Reipublicœ,” it is said, that this vessel should suffer a temporary detention, or if released by order of this court, that such release should be accompanied by a special bond entered into by the owners of the vessel giving security against any belligerent or non-neutral use of the vessel or her cargo. But the vessel is not to be proceeded against for any second penalty. The owners of the International and her cargo, however, are applicants to this court, both for the immediate and unconditional release of the vessel and cargo and for the condemnation in costs and damages (a power conferred by the statute on this court) of the government. I must now draw attention to the facts of this case as they appear in the affidavits, and as they are connected with others which are matters of general notoriety. The vessel herself, it is admitted, independently of her peculiar cargo, is not, per se, in any way adapted for purposes of war. Mr. Gray (the manager of the company) swears that “the said company carries on, among other things, the business of the manufacture and laying of submarine cables,” and that “on or about the seventh day of July, 1870, the said company purchased the said ship, then partially built, and caused her to be specially fitted for the purpose of their ordinary business, of laying submarine cables as aforesaid.” She was purchased by her present owners, the India-rubber and Guttapercha Telegraph Works Company, on the 7th of July last year. At that time the terrible and devastating war which very soon afterward began to cover France with blood had not broken out. At the time of the purchase the ship was partially built, and was subsequently, as is shown by Mr. Gray, “specially fitted for the purpose of laying submarine cables.” The ship was delivered as completed to the company in the month of September, and was shortly afterward let by the company to Her Majesty’s government for the purpose of laying a submarine cable between England and Jersey, which task she successfully performed. On the 28th of November the company entered into a contract with the director general of telegraphic and postal service in France to furnish and lay down certain submarine cables. It will be important to notice precisely the principal features of the contract. On the 21st of December, while lying in the Thames with cable on board of the kind required for the fulfillment of the contract, she was seized by officers of the customs, and on the 27th was detained by a warrant from the secretary of state for foreign affairs. The contract to which I have referred was entered into between the company and the French government, represented by the director general of telegraphs and mails, subject, however, to subsequent sanction (article 12) by a decree of the government of national defense. According to the terms of the contract, the company were to lay down in the channel and in the ocean various electric submarine cables, intended to connect, 1. Dunkirk with Cherbourg; 2. The west coast of the peninsula of Cotentin, toward Carteret, with some point of the bay of St. Brieuc; 3. The peninsula of Quiberon with Belle Isle en Mer; [Page 427] 4. Belle Isle en Mer with Royan; 5. Royan with Verdun. The cable is described as being of two kinds—a submarine cable and a land or shore-end cable, “cable d’attérissement et celui de pleine mer” They were to be made in conformity with models produced in court. By the 15th article the French government “reserves the selection and designation of the line of direction of the cable, and the precise points of landing, which is to be made known to Mr. Matthew Gray before the vessel which is to lay it down leaves the port of London.” By the 3d article, “the first and fourth sections to be laid down” (that is, Dunkirk to Cherbourg and Belle Isle en Mer with Royan) “shall comprise at each of their extremities 20 kilometers of cable of the land model; the intermediate portions shall be composed of cable of the model for deep seas.” “The second, third, and fifth sections are to be constructed entirely of land-cable;” that is to say, (2,) “the west coast of the peninsula of Cotentin, toward Carteret, with some points of the bay of St. Brieuc;” (3,) “the peninsula of Quiberon with Belle Isle en Mer;” (5,) “Royan with Verdun.” The contract further provides (article 4) that “at the extremities of each section a length of 500 meters of land-cable shall be placed at the disposal of the French administration, over and above the submerged conductor to be placed underground beyond the sea, to the point of junction of the submarine and land line.” The whole sum to be paid to the company was not quite 90,000l., in five installments. The operation of laying down the several cables was to be completed by January 31, 1871. In case of non-fulfillment, the French government were to take possession of the conductor, the ownership of which was to be theirs after the payment of the first two installments.

It appears, therefore, that there was one undivided contract to lay down a series of cables, extending from Dunkirk to Verdun, at the mouth of the Garonne, with the exception of certain portions of land, a telegraphic communication over which would be necessary to complete the connexion between the two extremities mentioned. With this connexion the company had no concern, except in so far as 500 meters of land-cable, or, rather, of additional shore-end, were, under article 4, to be provided by them and placed at the disposal of the French government. It has appeared from the material portions of the contract to which I have adverted, as well as from the ordinary functions of the company, that prima facie, at least, this undertaking had not for its object any employment “in the military or naval service” of France. It was apparently a bona fide commercial undertaking between the subjects of Her Majesty and a government in friendly relations with her. And the attorney general was express and clear in his statement that no mala fides or deception of any kind was to be imputed to the company, but a violation of the law through ignorance. It was also admitted, as I fully expected it would be, by the attorney general that this statute in no way affects the previously existing international law as to contraband. I have not, therefore, to consider whether, as suggested by the Queen’s advocate, this vessel might have been seized by a Prussian cruiser as being employed in the service of France, or as carrying contraband of war of a novel kind, but falling under the old principle. The carrier of contraband may violate the proclamation of the neutral state of which he is a member, and deprive himself of the right to protection from her; but the punishment of his offense is by the general law of nations left to the belligerent, who has the right of capture. The offense is not cognizable by the municipal law of this country. It occurred to me during the argument that the only hearing of the law of contraband on the present case might arise from the analogies furnished by that law—namely, that as “circumstances arising out of a particular situation of the war, and condition of the parties engaged in it” (“The Jonge Margaretha,” 1 C. Rob., 193) might clothe an article ancipitis usus with the character of contraband, so it might he argued that the cargo of the International, innocent under ordinary circumstances, might, in those of the present war, bring the vessel within the category of a ship dispatched for employment in the military or naval service of France.

I shall bear this analogy in mind in considering the further arguments addressed to me by the law officers of the Crown, which I am about to notice. The counsel for the Crown have strongly contended that, considering all the circumstances of the case, those who dispatched the International and her cargo had, notwithstanding the language of the contract, “intent and knowledge,” or, at least, “reasonable cause to believe” that she would be employed in the military service of France. First, it is pointed out that the contract is with the French government; second, it is said that the state of France at the period of the date of the contract was such as to render it impossible to believe that the government could have contemplated laying a cable for commercial purposes mainly or alone; third, that the circumstance of the places to be united by the cable, especially Dunkirk, Cherbourg, and Bordeaux, through Verdun, was one fraught with suspicion, as affording the inception, at least, of means of communication between the main armies of France, the value of which could not be overestimated to the defenders of that country in her present position; fourth, it was especially pressed upon the court that the contract was entered into very shortly before the removal of the government to Bordeaux, and must have been intended to facilitate the communications of the government in its new seat with the rest of France. [Page 428] On behalf of the applicants it had been alleged that the telegraphic line is strictly civil and postal, and not military. That the statute has specifically provided that to furnish “military telegraphy” shall be considered an employment in the military service of the state to which it is furnished. That “military telegraphy” is, according to a recognized scientific definition, of a wholly different kind and character from ordinary civil postal telegraphy; and this fact was, indeed, not denied by the counsel for the Crown; but I must observe that to maintain that military and postal telegraphy are different in kind is one proposition, and to maintain that, therefore, postal telegraphy, though proved to be employed exclusively, or mainly, for military purposes, cannot be considered as being employed in the military service of the state, so as to fall within the purview of the statute, is another and very different proposition, to which I am not disposed to assent. The statute, by specifying military telegraphy, has not, in my opinion, excluded the possibility of showing that, in the particular circumstances of the case, postal telegraphy must be considered as the telegraphy employed in the military service of the State. The question is, whether there is evidence before me in the present case to prove that the real object of this postal telegraphy was and must have been known to be subserving in its main end and purpose the military service of France. The positive evidence is entirely in favor of the applicants. I do not say that such evidence is necessarily binding upon the court, or that the counter presumption may not be so strong as to render such testimony null. Lord Stowell somewhere says: “It is the idlest of all conceits that a court is bound by mere swearing.” The swearing must, of course, be credible; but the presumption must be very strong to overbear the testimony furnished in this case, by the affidavits both of the French and English witnesses, especially where no mala fides or want of candor is ascribed to the applicants.

The company is formed to furnish ordinary postal telegraphs. The contract with the French government is to furnish telegraphy of this kind only. No other kind is furnished. It is inapt per se for land telegraphs, much more for military telegraphy. It is credibly sworn, I think, that the applicants are no parties, directly or indirectly, to any intention or project of adapting this, so to speak, civil telegraphy to military purposes. No such adaptation is within the letter or spirit of their contract. The present circumstances of France are certainly such as to make the means of communication between her armies and her government of the utmost value to her. It is probable that this telegraphic line from Dunkirk to Verdun will be partially used for effecting, or endeavoring to effect, such communication. But neither does this appear to be the main object of the line, nor could it, without additions and adaptations with which this company has no concern, be made even partially to subserve this end. On the other hand, there is nothing incredible in the statement that commercial interests are largely concerned in the establishment of a postal telegraphic line between Dunkirk and Verdun, at the mouth of the Garonne, due regard being had to the great and increasing commercial importance of Bordeaux. It is, however, probable, as I have said, that the line may be occasionally used for military among other purposes but such a probability is not sufficient to divest the line of its primary and paramount commercial character, and to subject this company to the very severe penalty imposed by the statute.

After a careful consideration of the statute and of the facts of this case, I have arrived at the conclusion that the applicants have made out their claim to have this vessel released. They, it is admitted, have acted with candor and with good faith toward the government, and I do not think I ought to clog the release with the bond proposed by the attorney general, the conditions of which, I may observe, were only very generally hinted at, and which might not be easy to frame. Be this, however, as it may, I do not impose such a condition on the release which I decree. I am of opinion, however, that having regard to the peculiar circumstances of the case, which I need not repeat, Her Majesty’s government took a correct view of the grave obligations imposed upon them, and that there was “a reasonable and probable cause” for the detention of this ship and cargo, and for putting the applicants upon their defense. I therefore make no order as to costs or damages.

Notice of appeal from his lordship’s judgment to the judicial committee of the privy council was given both on behalf of the company and of the Crown.

[From the London Times of January 18, 1871.]

[Untitled]

It is an odd result of the accidental composition of our judicial system that questions of the most vital importance to the nation should be brought for determination before a judge whose court attracts, under ordinary circumstances, the most moderate degree of attention. We are, of course, a seafaring people. Were it not for our supremacy on the great deep, our position in the scale of nations would be very different from what it is. We rule the waves. “The charter of the land” assures us of this privilege, and in the darkest moments of national retrospect we still flatter ourselves, [Page 429] we hope with truth, that we could defy all assaults on our naval supremacy. And yet the judge of our admiralty court—we say it with all respect for the present occupant of that position—is, it must be acknowledged, very much a creature of accident. He fulfills the double duty of examining who is at fault in the case of collisions at sea and who is at fault in the case of an alleged infringement of the thirty-nine articles. Whether Sir Robert Phillimore is more at home in the one or the other class of subjects coming before him for determination is a matter which must not be too curiously investigated. Some of his predecessors were great in one direction, some in another. Lord Stowell was one of the executors of Dr. Johnson, yet it is currently believed that his judgments on admiralty cases were more valuable than his exercitations on ecclesiastical law. His decisions as the judge of the first prize court of the realm are invaluable; but his opinions on heresy are, perhaps, hardly so highly accounted now as they were in his own time. Sir Herbert Jenner Fust, on the other hand, if he descend to posterity at all, will be remembered as the judge who pronounced judgment in the great case of “Litchfield v. Another,” on the momentous question whether an altar-table could be made of stone as well as of wood, and who had the felicity of hearing and deciding in its first stages the issues in the cause of “Gorham vs. the Bishop of Exeter,” which, now that Dr. Phillpots and Mr. Gorham have both gone to their account, we may be permitted to say agitated public attention to an extent it did not deserve.

Sir Robert Phillimore yesterday gave judgment in the case of the “International.” We have no intention of questioning his decision. On the contrary, we accept it with great satisfaction. If we may be permitted to say so, we could not have advised any other conclusion than that at which the learned judge arrived. Yet it is remarkable that a question of such intricacy and of such international importance should have been relegated to the judge of a court of such comparative obscurity. If everything were submitted to tribunals constituted according to the intrinsic value of causes as they arise, we might expect that the lord chancellor, the lord chief justice, the chief of the common pleas, the chief baron, with, perhaps, the chancellor of the exchequer thrown in as an assessor, would have been called on to decide it. Imagine that the Alabama, instead of being suffered to escape, as unfortunately she was, had been apprehended and detained by the collector of customs at Liverpool, and that thereupon the Messrs. Laird had applied to the court of admiralty to have her restored to them. The whole wit and learning of the kingdom ought to have been cited to adjudicate upon the question. The matter of the “International” is no whit less intricate, and possibly no less momentous. What are the circumstances of the case? The India-rubber, Gutta-percha, and Telegraph Works Company entered, on the 28th of November last, into a contract with the director general of telegraphic and postal service in France to furnish and lay down certain submarine cables. Sir Robert Phillimore in his judgment recites some former transactions of the company in relation to the ship which was the subject of the contest before his court, but we cannot persuade ourselves that they had anything to do with the point before him for decision. In November the company contracted with the French director general of telegraphs to furnish and lay down electric submarine cables from Dunkirk to Cherbourg; again, from the west coast of the peninsula of Cotentin to a point in the hay of St. Brieuc; again, from Quiberon to Belle-isle-en-Mer, and again from Belle-isle-en-Mer, by two stages, to the mouth of the Garonne—that is to say, to the port of Bordeaux. The several sections thus contracted for, when supplemented by a piece of land-cable crossing the westernmost peninsula of France, would connect Dunkirk and the other chief ports of the coast, except Brest, with Bordeaux. Such was the contract between the company and the de facto Government of France. On the 21st of December the “International,” a ship of the company, being loaded with submarine cables for the purpose of fulfilling this contract, was seized in the Thames by the officers of the customs, and on the 27th was detained by warrant of the foreign secretary. The company at once applied to the court of admiralty to be released from the detention occasioned by this warrant, and Sir Robert Phillimore yesterday decided that the company had a right to the release; but the point involved in the application was, in his opinion, of such nicety and doubt that, though he decided in favor of the company, he refused to allow them the costs of their application, and left to the Crown and the company the burden of sustaining their several costs of procedure.

How did it come to pass, it will be asked, that there could have been any ease for detaining the International, with its cargo of telegraphic cables, to be laid around the west coast of France? The service to be thus rendered seems in itself sufficiently innocent, its military bearing too remote to be the subject of judicial observation. The answer to these questions strikingly illustrates the peculiarities of parliamentary government. The war between France and Germany broke out toward the end of the last session, and it was then remembered at the Foreign Office that our foreign enlistment act was very imperfect, and that a royal commission had recommended its amendment in several particulars. A bill was accordingly introduced in hot haste, and hurried through Parliament. It included much of perhaps doubtful policy; it omitted as [Page 430] much that might, perhaps, have been included. It left untouched the facility of exporting arms to a belligerent, but, according to the contention before Sir Robert Phillimore, it prohibited the supply of a telegraphic cable to a friendly government at war with another ally. In effect, the 8th section of the bill which thus became an act confiscated to the Crown any ship dispatched with intent or knowledge or under reasonable suspicion that the same “should be employed in the military or naval service of any foreign state at war with any friendly state.” This language is vague, but still it could scarcely be pretended that a ship sent from our shores with a cable to be laid between, for example, Havre and Bordeaux, was dispatched with an intent that it should be employed in the military or naval service of France; but the interpretation clause of the statute—a clause which generally passes sub silentio in Parliaments—declares that military service shall include military telegraphy; but the same clause defines “naval service” without any reference whatever to telegraphy. Under this interpretation clause the Foreign Office held that the International, being about to be dispatched with cables to be laid between Dunkirk and several points leading in a broken chain to the mouth of the Garonne, was sent on a mission of “military telegraphy,” and therefore on “military service,” and thus became forfeited to the Crown.

We have not been slack to admit the obligations of neutrality during the present war. If we have in any way been open to criticism, it is that we have gone before the requirements Of international law rather than lagged behind them; but the contention of the officers of the Crown in claiming the forfeiture of the International appears to over-pass all reasonable construction of the statute, as it certainly exceeds any argument that can be advanced on principle. As far as the law of nations is concerned, it could not be contended for a moment that the International was liable to capture as bearing a contraband cargo. If she was open to seizure at all, it must be under the statute. The question before Sir Robert Phillimore, therefore, was simply whether a contract with the French government to lay a cable between Dunkirk and Bordeaux—for we may omit the consideration of the fact that there were missing links in the complete connection—was a service of “military telegraphy.” We have little hesitation in answering that it was not. The cable when laid might be used, among other purposes, for the conveyance of orders directing the movements of the armies of France; but, admitting this, the service so rendered was no more military than the supply of writing-paper would have been. A means of communication, in itself perfectly innocent, would have been established, and its devotion to military purposes would have been ancillary to the transaction, and not the essence of it. No neutral power can be expected to extend its surveillance over its citizens to such an extent; and, indeed, could the doctrine be established, as was implied in the claim to arrest the International, there would be ground for the creation of a new neutral league to break up the servitude sought to be imposed by belligerents on their neighbors. Sir Robert Phillimore, after a careful examination of the facts, decided that the primary and paramount character of the undertaking was commercial, and that, therefore, the International was free from the penalty sought to be enforced; and if this conclusion be questioned, we may ask what possible contract could be made with the French government which would not be open to objection? Is it maintained that the fact of war between two nations imposes upon neutrals the duty of complete isolation from each, since no contract with either can possibly be conceived which is not for its benefit? Such a reductio ad absurdum seems a sufficient answer to a claim that was, perhaps, properly advanced in the court of admiralty, and certainly was properly rejected.