to escape from one of two alternatives. Either she violated a long line of solemn in ternational compacts by sending commis sioned warships through the Bosporos and the Dardanelles in the guise of merchant men, or she violated one of the most cardi nal principles of International Law by per mitting or authorizing merchant vessels to exercise the strictly belligerent right of search on the high seas. If the Pctcrburg was a lawfully commissioned warship, she had a perfect right to visit and search the Malacca on the Red Sea. This being the case, if it is true that the Captain of the lat ter vessel refused to show the manifest of his cargo upon being requested to do so, the Captain of the Pctcrburg was fully justified in assuming that she carried contraband, in seizing her as a prize of war, and in bring ing her through the Suez Canal1 on his way to a Russian port. If, on the other hand, as seems more probable,3 the Pctcrburg was not s. lawfully commissioned warship, the Caplain of the Malacca had a perfect right to re fuse to show his manifest to the Captain oí what might, technically speaking, be re garded as a piratical vessel. In any case, 'The fact that the Suez Canal is neutralized by an international treaty does not. as some have supposed, prevent its use by belligerents for the transportation of their prizes. See Articles IV and VI of the treaty, which is printed in Hol land's Studies in International L<ni', pp. aSgf. 2It is difficult to see how and where the Peterburg obtained her commission. She is said to have passed through the Straits as a merchant man on July ", to have entered the Suez Canal on July 9, and was busy holding up neutral ves sels on July it or 12. If she did not have a bona tide commission, it is difficult to avoid the conclu sion that from a purely technical point of view, she was guilty of an act of piracy when she cap tured the Malacca. The Official Messenger of St. Petersburg stated on August 2, 1904, that the Pcterburg and Smolensk had received a special commission; the term of which had expired by August 2. In that case they were undoubtedly warships, but as such they had no right to pass through the Straits. It has been suggested that she was a privateer, but privateering was abolished by the Declaration of Paris in 1856. to which Russia was a party, and it is not alleged that she possessed letters of marque.
whether the Pcterburg was a lawfully com missioned warship or not, if, as claimed by him, the Captain of the Malacca did not .re fuse to show his manifest and if the British Government stores on board the MaJacca were misaken for contraband, then the seiz ure, was a serious mistake and a blunder for which the Russian Government owed ample amends and reparation to all concerned.3 Another important question raised by these seizures is whether the right of search applies to mail-steamers and whether mail sacks may be regarded as contraband. The law on this subject is by no means as clear as could be wished. The best rule is prob ably that laid down in the United States Naval War Code prepared by Capt. Stockton of the United States Navy and issued by the Secretary of the Navy on June 27, 1900. "A neutral vessel carrying hostile dispatches, when sailing as a dispatch vessel practically in the service of the enemy, is liable to seiz ure. Mail steamers under neutral flags carrying such dispatches in the regular and customary manner, either as a part of their mail in their mail bags, or separately as a matter of accommodation and without spec ial arrangement or remuneration, are not liable to seizure and should not be detained, except upon clear grounds of suspicion of a violation of the laws of war with respect to contraband, blockade, or unneutral ser vice, in which case the mail bags must be forwarded with seals unbroken."* Hostile dispatches, military orders, and the like (excepting diplomatic communica tions, which are privileged)5 are, of course, subject to capture, and the vessel carrying 'The real facts will probably never be fully known, both because the dispute was largely a political one and settled on grounds of policy, and because the examination of the cargo of the Malacca was a mere matter of form. 'Article 20 of Stockton's Code, p. 406 of Wil son and Tucker's International Loïc. "See Lord Stowell's decision in the case of the Caroline, 6 Robinson, 464.
