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THE



NORTH AMERICAN

i EPUIHJO f.MJRMY,

R E Y I E W.



VOL. XCV.



Tros Tyriusque mihi nullo discrimine agetur.



BOSTON:

CROSBY AND NICHOLS,

117 WASHINGTON STREET.

1862.



Entered according to Act of Congress, in the year 1862, by

CROSBY AND NICHOLS,
in the Clerk's Office of the District Court of the District of Massachusetts.



UNIVERSITY PRESS:

WELCH, BIGELOW, AND COMPANY,
CAMBRIDGE.




NORTH AMERICAN REVIEW.

No. CXCYI.



JULY, 1862.



ART. I. 1. Correspondence relative to the Case of Messrs.
Mason and Slidell. Pub. Doc.

2. Papers relating to Foreign Affairs, accompanying the Pres
ident's Message to Congress at the Opening of its Session
in December, 1861. Pub. Doc.

3. Speech of SENATOR SUMNER, delivered in the Senate, Janu
ary 9, 1862. Washington, D. C. : Scammell & Co.

4. The Trent Affair. The remaining 1 Despatches. Boston
Daily Journal, January, 1862.

5. Additional Despatches on the Trent Case. Boston Daily
Journal, February 12, 1862.

6. Opinion of M. D'HAUTEFEUILLE. New York Times, Janu
ary 4, 1862.

THE affair of the Trent is settled so far as immediate re
sults are involved. Messrs. Mason and Slidell have been
delivered up to Lord Lyons, and have reached their destina
tion by the way of St. Thomas and Southampton. There has
been no war with Great Britain, no humiliating surrender, no
apology, no ovation, nor any great manifestations of rejoicing
among the people of England. The most unkind cut of all
is the declaration of the London Times that Great Britain
would have done as much for two negroes ; as she might have
done with much more propriety if the United States had
made a seizure on board the Trent of that description.

In the mean time no principles of international law have

VOL. xcv. NO. 196. 1



INTERNATIONAL LAW. [July,

been settled in relation to the rights of belligerents and neu
trals. The demand is couched in the most general terms,
ignoring all the particular circumstances upon which the seiz
ure was made, and which were supposed by Captain Wilkes to
justify it. t It is acceded to with a substantial declaration that
the act was justifiable but for the neglect to bring the vessel
in for adjudication : and tlie surrender is made on account
of this omission, or because the United States long ago con
tended for certain doctrines in relation to neutral rights,
which Great Britain strenuously resisted, but which she is
supposed to sustain by this demand ; it does not appear to be
quite certain upon which ground it is placed. At the same
time it is declared, that, if the safety of the Union required the
detention of the captured persons, it would be the right and
duty of the government to detain them ; but the effectual
check and waning proportions of the existing insurrection, as
well as the comparative unimportance of the captured persons
themselves, happily forbid a resort to that defence.

Earl Russell replies to this, that the neglect to send in the
Trent was by no means the sole ground of the demand ; he
does not admit that Great Britain has abandoned any of her
ancient doctrines, and he informs Mr. Seward " that Great
Britain could not have submitted to the perpetration of that
wrong, however flourishing might have been the insurrection
in the South, and however important the persons captured
might have been."

How far this assertion of the Secretary of State may be
considered as an admission that Great Britain was justifiable
or excusable in her claim of a right to impress her seamen
when found on board of our vessels, a claim which it was
attempted to sustain by the plea of necessity, and which, how
ever shaken, has never been formally abandoned ; and a fur
ther admission that the adoption of the act of McNab, in
invading our territory and burning the steamer Caroline,
(which also it was attempted to justify by this same necessity,
and which has never been atoned for,) has a like justification
or excuse ; and how far, on the other hand, Earl Russell's reply,
that Great Britain would not have admitted the safety of the
Union to be an excuse for the capture and detention, however



1862.] INTERNATIONAL LAW. 3

flourishing might have been the insurrection in the South,
may be regarded as a concession on his part that Great
Britain was entirely wrong when she alleged necessity as a
plea for impressment in the one case, and for the violation of
neutral territory and the burning of the steamer in the other,
are matters which remain for diplomatic discussion whenever
some new transaction shall require it.

As the diplomatic correspondence has been of no avail to
settle any principles of international law, but has rather left
confusion worse confounded, we propose to follow the discus
sion of those principles somewhat further. Neither the cor
respondence nor subsequent reflection upon the subject has at
all shaken our confidence in the opinions which we expressed
in the article in our number for January, upon " The Foreign
and Domestic Relations of the United States."

For the right understanding of the subject, we inquire, in
the first place, what is to be understood by international law,
and from what sources is it derived.

International law has been defined by Mr. Wildman to be
" the customary law which determines the rights and regu
lates the intercourse of independent states in peace and war."
Sir William Scott (3 Rob. Ad. Reports, 326) remarks, that it
was a law " made up of a good deal of complex reasoning,
though derived from very simple rules, and altogether com
posing a pretty artificial system." The British government
have said that it is " founded upon justice, equity, conven
ience, and the reason of the thing, and confirmed by long
usage." See 1 Phill. Int. Law, [15] 55. Dr. Phillimore
states that

"Analogy has great influence in the decision of international as well
as municipal tribunals ; that is to say, the application of the principle
of a rule which has been adopted in certain former cases to govern
others yet undetermined." 1 Int. Law, [35] 68.

The sources of international law, as set forth by the very
learned jurist last cited, are the Divine law natural and re
vealed, reason, and the consent of nations. He says :

"The obligations of natural and revealed law exist independently
of the consent of men or nations, and although the latter acknowledge



4 INTERNATIONAL LAW. [July,

no superior upon earth, they nevertheless owe obedience to the laws
which they have agreed to prescribe to themselves, as the rules of their

intercourse in peace and war This consent is expressed in

two ways: 1. It is openly expressed by being embodied in positive
conventions or treaties. 2. It is tacitly expressed by long usage, prac
tice, custom." Ibid., [37] 69.

Speaking of the repositories and evidences of the consent
of nations, the same author enumerates history, the contents
of treaties, proclamations or manifestoes issued by the gov
ernments of states to the subjects of them upon the breaking
out of war ; and he says of the latter, " These public docu
ments furnish, at all events, decisive evidence against any
state which afterwards departs from the principles which it
has thus deliberately and solemnly invoked." (Ibid., [50]
78.) He adduces the decisions of prize courts, and of the tri
bunals of international law, as an evidence of the consent of
nations, and in that connection takes occasion to refer to the
judgments of Lord Stowell (Sir William Scott), and to the
strong commendations bestowed upon them by Chancellor
Kent and Dr. Story, quoting the language of the latter as
follows :

" How few have read with becoming reverence and zeal the decis
ions of that splendid jurist, the ornament, I will not say, of his own
age or country, but of all ages and all countries ; the intrepid supporter
equally of belligerent and neutral rights ; the pure and spotless magis
trate of nations, who has administered the dictates of universal juris
prudence with so much dignity and discretion in the prize and instance
courts of England! Need I pronounce the name of Sir William
Scott?" Ibid., [57] 82.

The author adds, also, the concurrent testimony of great
writers upon international jurisprudence as another evidence
of the consent of nations, for which he cites Wheaton on In
ternational Law.

From this examination of the general character, sources,
and evidence of international law, it is quite apparent that in
many instances the rules which must determine the rights,
and which should govern the intercourse, of two nations, may
be applicable to those nations alone, while in other cases the
rights may be dependent upon principles of a more enlarged



1862.] INTERNATIONAL LAW. 5

application, and the intercourse be regulated by usages which
have the evidence of a much more general consent.

It hardly needs an argument to show that the questions aris
ing in this case of the Trent are to be considered and deter
mined as questions wholly between the United States and
Great Britain, and upon the principles and usages which have
been promulgated, sanctioned, acknowledged, and claimed as
suitable and proper principles to determine the rights and to
regulate the intercourse of those two nations ; and not, mainly,
by any principles which are of general authority and applica
tion throughout Christendom.

Clearly the questions at issue cannot be determined by any
principles of natural or revealed law. The rights of war, and
the proper mode of carrying on a war, so far as coercion by
force, gunpowder, shot, and shell are concerned, are generally
regulated (if regulated) by the usages of mankind, rather
than by natural or revealed religion, or even by treaty stipula
tions. This must almost necessarily be the case, each occa
sion for hostilities depending upon the peculiar circumstances
attending the offence which gives rise to them, and the modes
by which the hostilities may be rendered most effective. The
general object of offensive warfare is to do injury to the ene
my, and thereby compel him to submit to what is required of
him.

Even the general laws of war may not suffice to determine
the rights of the belligerent and of the neutral in this case,
because the general principles regulating war do not reach the
special circumstances of the case, as one arising between the
United States and Great Britain. Not that there is any treaty
stipulation between the two countries which determines their
respective rights in reference to this matter. No treaty stipu
lation exists. Great Britain expressly refused to accede to
certain principles which the United States desired to incorpo
rate into a treaty, and which, if incorporated, might have had
an essential bearing upon some of the questions involved in
this case.

For this very reason, however, no treaty stipulation between
the United States and any other nation can be regarded as
governing this case, or even as having a legitimate bearing on
1*



INTERNATIONAL LAW.

the questions arising in it. Mr. Sumner, in the speech the
title of which we have placed at the head of this article, has,
with a great, and for the purposes of this case useless dili
gence, made a collection of the varying expressions of our
treaty stipulations with other powers. But the most which
these treaties can serve to show is, either that the principles of
international law in relation to the subject-matter were un
settled, and that the parties to the treaty desired to have them
made certain, in accordance with what they deemed to be the
true principle ; or that by the rules of law, as generally re
ceived, the right or usage was otherwise than as settled by the
treaty stipulation, and that the parties to the treaty were de
sirous of having the matter placed upon a different, and, as
they deemed it, a better basis. In either view, the treaties
furnish no argument whatever against the positions assumed
by Captain Wilkes. On the latter supposition, the treaties, so
far from furnishing an argument against his proceedings,
would, as between the United States and Great Britain, fur
nish very conclusive evidence in his favor.

So in relation to the intervention of France, and other pow
ers of Europe, by the expression of their hopes that the Unit
ed States would accede to the demand of Great Britain ; and
in reference also to M. Thouvenel's suggestion, that the seiz
ure was erroneous, and that the United States would be in the
wrong if they insisted upon holding the prisoners. The inter
vention was valuable as an evidence of courtesy and friendly
relations between those powers and the United States, shown
by the expression of their desire that we should not enter into
a conflict with Great Britain in which they could not sustain
our right on their principles. But unless it may be shown
that their principles are those upon which Great Britain has
acted toward the United States, or at least that they are the
principles which at the time were the governing principles as
between the United States and Great Britain, those interven
tions and representations can have no tendency to show the
right or the wrong, as between the parties to the matter at
issue.

This is made especially apparent by the despatch from M.
Thouvenel to M. Mercier, which was read to Mr. Secretary



1862.] INTERNATIONAL LAW. 7

Seward, in which M. Thouvenel argues the question upon the
rules of law as they are held by France, and upon the stipula
tions of the treaties between the United States and France ;
whereas the principles maintained by France in relation to
neutral rights are not acknowledged by Great Britain, and the
United States have no treaty with her of the same character,
in this respect, as they have with France.

So, again, in relation to the writings of foreign publicists.
Although undoubtedly such writings are evidence of the prin
ciples of international law, the evidence may be limited to the
usages and customs of some nations, and not of others. Such
writings cannot avail as evidence in this case, unless they rec
ognize the principles asserted by Great Britain, and assented
to or acquiesced in by the United States. This is particularly
true of M. Hautefeuille, who has made himself somewhat im
pertinently busy in reference not so much to the principles
which govern the case, as in denunciation and vituperation of
the United States. He disagrees with Wheaton, and rejects
entirely the authority of Lord Stowell, whose character as a
jurist has not only received, as we have seen, very strong
commendation in this country, but the most of whose decis
ions were regarded as authoritative expositions of the rights
of belligerents against neutrals long before M. Hautefeuille
was even heard of here. It is certainly something more
than modest assurance when M. Hautefeuille, ignoring the
authority of a judge who has decreed the confiscation of mil
lions, perhaps, of American property, for violation of neutral
ity, and to whose decrees and judgments the sufferers and
the government submitted, if not without a murmur, at least
without a resort to arms for that cause, ignoring also the
fact that American publicists had lauded his great learning
and eminent character, recognized his authority, and promul
gated his principles as the governing, if not the best, princi
ples of international law, presumes to denounce the pro
ceedings of Captain Wilkes, and to censure the United States
because they have not conducted in relation to an English
vessel according to his standard in regard to neutral rights.

It is perhaps not necessary to our present purpose, but we
take occasion to say, that, upon any open question, not settled



8 INTERNATIONAL LAW. [July,

by agreement or consent between the two nations, but upon
which each has maintained an opinion adverse to that of the
other, either has the right, at any time, to act upon the prin
ciple contended for by the other, and thus to express an as
sent to it, if there has not previously been something to show
a withdrawal. This is the usual mode by which assent is
given by implication, and in relation to such subjects it is
sufficient if the assent is expressed when the occasion arises
for it.

We proceed to inquire into certain principles of interna
tional law as held by Great Britain, and as recognized by the
United States, their judicial tribunals and jurists, which may
apply directly, or by analogy, to the case of the Trent.

The convenience or necessity of a belligerent has sometimes
led to the violation of neutral territory, as in the case of the
burning of the steamer Caroline within the limits of the State
of New York ; and the power of the belligerent has occasion
ally been sufficient to resist a claim for redress. In other
words, the party committing the wrong, in the language
which the London Times lately applied to Great Britain, has
" fought it through," instead of doing justice. But such a
course does not settle the principles which are applicable to
future cases.

The main difficulties in determining the rights of the bel
ligerent and the neutral have arisen in relation to the vessels
of the latter navigating the open sea, which is the highway
of all nations. It has been asserted by some, that a vessel on
the ocean is to be regarded as a part of the territory of the
government to which she belongs ; but this position cannot be
maintained, either in the nature of the thing, or according to
the received rules of law. If there is any similarity between
the two, it is only of a limited character. The term territory
is sometimes applied to a vessel with the meaning merely
that she is under the jurisdiction and laws of the nation to
which she belongs, but with no intention to assert an immu
nity from search and seizure of the ship for violation of neu
trality. Such was evidently the use of the term by Mr. Web
ster in his negotiation with Lord Ashburton. The belligerent
and the neutral are alike entitled to pass and repass upon the



1862.] INTERNATIONAL LAW. 9

ocean, and there is no territory there. The belligerent has
the right to carry on his hostilities against his enemy wher
ever he can find him on the high seas, and the neutral char
acter of a vessel there cannot be known except upon inquiry,
for which purpose visit is allowed ; whereas neutral terri
tory manifests itself, is known, and is to be respected with
out visit, search, or inquiry, except upon evidence of a vio
lation of neutrality.

In an article on the affair of the Trent, in the February
number of the London Law Magazine and Law Review, the
tone and temper of which are in marked contrast with the
frothy and malignant issues of Blackwood, the Edinburgh, the
North British, and even of the Christian Observer,* it is
stated that, in a paper upon the subject read by Mr. C. Clark
before the Juridical Society, he maintained as a first propo
sition, " that a ship is, as a rule, part of the soil of the coun
try to which it belongs." In a subsequent part of the paper
he said that the rule that each nation claims jurisdiction over
its own vessels at sea depends on the principle that every
vessel is part of the state to which it belongs ; and he adds :
" This principle I am prepared to maintain, and must do so,
for it will become of much importance in a future stage of
this discussion." But he certainly does not succeed in ob
viating the objections of Mr. Manning to that doctrine, in his
Commentaries on the Law of Nations, which Mr. Clark cites
and attempts to controvert ; and assuredly it is no more ne
cessary, in order to substantiate a claim to jurisdiction over



* The January number of the Obsei-ver betrays its ignorance of American affairs
by speaking of "Lord Lyons, the British Ambassador at New York," and airs its
vocabulary by a liberal utterance about " preposterous arrogance," " ridiculous pride,"
"national vanity," "arrogance and bluster," " contemptuous disregard of the rights
of other nations," &c., &c., and cloaks all this vituperation of the United States un
der a sanctimonious assumption of the right of Christian rebuke.

Commenting on the affair of the Trent, the Observer speaks of "a display of vio
lence towards Miss Slidell, which might have, and probably would have, terminated
in bloodshed, but for the heroic conduct of the English commander, who threw him
self between her and the bayonets of the marines." Qucere, on which side was the
danger of bloodshed ? If Commander Williams's story about Miss Slidell's conduct
toward Lieutenant Fairfax were entitled to any credence, it would seem that the
danger was on the part of the marines, and that they must have presented their bay
onets (if presented) in self-defence.



10 INTERNATIONAL LAW.

a vessel at sea, to maintain that it is part of the soil, or even
a part of the state claiming jurisdiction, than it is necessary,
in order to show a title to a carriage running upon the high
way, and a right to govern its motions, to show that the car
riage is part of the real estate of the claimant.

Mr. Manning says : " Now, no nation has jurisdiction over
the territory of another nation. But as soon as a merchant-
ship comes into the harbor of a state to which she does not be
long, she becomes subject to the jurisdiction of this latter state.
This shows that a merchant-ship cannot be considered part of
the territory of her state ; for if she possesses this character
at any time, she must possess it at all times." (p. 210.) This
alone would seem to be conclusive of the argument, without
reference to the other cogent reasons offered by Mr. Manning
in support of his objection to the doctrine. How is it that the
character of the ship in this respect can change upon her en
trance into the port of another nation, so that the part of the
soil, or part of the state, which she constituted, has become de
tached from the state to which she belongs, but is annexed
again the moment she gets out of the port ? If the right of
jurisdiction proves the ship to be part of the soil or state, it
would seem to show that, upon entering the port of another
nation, she had become part of the soil or state there. The
proposition, therefore, proves too much. Mr. Clark admits
that his rule is subject to certain exceptions, but in fact it
is all exceptions. There is no particular in which the vessel
can, with any just reason, be regarded as part of the territory.
The proposition is, at best, but a mere fiction, for the purpose
of asserting a jurisdiction over the ship while on the high seas,
and a very unnecessary fiction for that purpose.*

* In a recent debate in the House of Commons on a resolution offered by Mr.
Horsfall, " That the present state of International Maritime Law, as affecting the
rights of belligerents and neutrals, is ill-defined and unsatisfactory, and calls for the
early attention of Her Majesty's government," Lord Palmerston said : " We have
lately maintained, at the risk of war, that a merchant-ship at sea is a part of our
territory, that that territory cannot be violated with impunity, that, therefore, indi
viduals cannot be taken out of a merchantman belonging to a neutral country. The same
principle may be said to apply to goods as well as men, and if it be granted, as we
do grant, that a belligerent has no right to take out of a neutral ship persons who are ene
mies, so also it follows that the neutral must always be respected, and in the case
even of enemy's property on board ought not to be violated." If this is what



1862.] INTERNATIONAL LAW. 11

There has been much less difference of opinion respecting
the rights of belligerents, as against each other, than has ex
isted in relation to their rights, as their warlike operations
may affect, directly or indirectly, those nations which, having
no interest in the contest, not only desire to remain neutral,
but to avail themselves of all the advantages of trade and
commercial intercourse to which, but for the hostilities, they
would be entitled with each of the belligerents.

The neutral nationality of a vessel being established, there
is still no assurance of the observance of the actual neutrality
which is incumbent on those who control the ship. The
" greedy merchants who care not how things go, provided
they can satisfy their thirst of gain," pay little regard to proc
lamations of strict neutrality, so long as large profits attend a
violation of it by the transportation of contraband goods, and