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 THE 
 
 HIGHWAY OF THE SEAS. 
 
 
 
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THE 
 
 HIGHWAY OF THE SEAS 
 
 IN TIME OF WAR. 
 
 BY HENRY W. LORD, M.A. 
 
 BARRISTER AT LAW, 
 FELLOW OP TRINITY COLLEGE, CAMBRIDGE. 
 
 
 "In war, passion and hatred, and seeming necessity and the fancied 
 interest of the moment, are apt to determine the actions of combatants ; 
 and powerful belligerents, relying on their might, oftentimes set at 
 defiance the best-established rules of war." — Sir W. Molesworth's Speech 
 in the House of Commons, July ith, 1854. 
 
 Cambribge : 
 MACMILLAN AND CO. 
 
 AND 23, HENRIETTA STREET, COVENT GARDEN, 
 
 ^ottbon. 
 1862. 
 
 
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 LONDON : 
 PRINTED BT R. CLAY, SON, AND TAYLOR. 
 
PREFACE. 
 
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 Since the following pages were written, intelligence 
 has arrived in this country of the tardy surrender of 
 Messrs. Mason and Slidell. This act of the Govern- 
 ment of the Federal States takes away all necessity 
 for immediate action, or even for immediate delibera- 
 tion on the part of Great Britain. It is, however, not 
 improbable that persons on both sides of the Atlantic 
 may be found ready to see in this event an instance 
 rather of the tyranny of overbearing force than of the 
 triumph of the unalterable principles of Law and 
 Justice. It becomes, therefore, all the mo e important 
 — and this especially, when, by the light of the official 
 correspondence on the subject, and of the comments 
 which have since appeared in the public journals of 
 the Federal States, we contemplate the possibility of 
 future complications arising which may involve many 
 of the same points under circumstances more favour- 
 
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 able to the suppression of neutral rights — to have it 
 clearly shown that in respect, as well of the general 
 principle of the right of seizure, as of the mode in 
 which that right was in this particular case exercised, 
 the act of Captain Wilkes has been from first to last 
 an unwarrantable violation of that independence of 
 non-belligerent vessels, which in the interest of neu- 
 tral nations, no less than in vindication of her own 
 honour, Great Britain was morally bound to assert 
 and to maintain by those means, which the Law of 
 Nations sanctions when the principles of that law 
 have been set deliberately at defiance. 
 
 HENRY W. LORD. 
 
 1, Tanfield Court, Temple, 
 January \Qth, 1862. 
 
THE H.GHWAY OF THE SEAS. 
 
 It is in the nature of things that questions of 
 International Law can seldom or never be, at tlie 
 same time, publicly and temperately discussed. 
 Tlie judgment of a nation is as liable as that of 
 individuals to be warped by prejudice, or seduced 
 by self-interest, or distracted by passion — is, in- 
 deed, more so, inasmuch as, when matters, whicli 
 call for a people's judgment, are stirring, any ques- 
 tioning of motives is assumed to involve a luke- 
 warm patriotism, and doubt appears disloyalty ill 
 disguised. So comes it that, in times of popular 
 excitement, difficulties, which practical experience 
 and theoretic speculation have equally failed to 
 overcome, are readily solved, or more readily dis- 
 regarded, by impetuous ignorance or wilful mis- 
 representation ; and the mind, deliberately impatient 
 of argument, becomes unconsciously impatient of 
 justice. 
 
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THE IITOAWAY OF THK SEAS. 
 
 I low far soever these remarks may he appro- 
 priate to the state of feeling which, if the reports 
 and articles in public journals afford any fair 
 criterion of national sentiment, does certainly 
 prevail at the present time upon the further side of 
 the Atlantic, the manner, in which, ever since the 
 first ebullition of a perhaps hasty, but still a 
 pardonable indignation subsided, this unfortunate 
 complication of our relations with the Federal 
 States of North America, has been generally dis- 
 cussed in England, at least justifies me in thinking 
 that there are very many among us who are ready 
 to welcome any attempt to collect and give con- 
 sistency to the various principles and theories 
 affecting that portion of international law which 
 bears upon the case of the Trent; to sift and 
 scrutinize the instances in past history wliich are 
 alleged to be specially applicable to the points in 
 dispute, and by such means as dispassionately as 
 we can, having at heart the interest and the honour 
 of our country, to ascertain whether the people of 
 the Federal States have been too hasty in justifying, 
 or we too hasty in condemning, the conduct of the 
 commander of the San Jacinto, This attempt I 
 now propose to make, and I will proceed at once to 
 give a short statement of the facts of the case, so 
 far as they are material to the end at which I aim. 
 
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 so 
 
 TlIK HIGHWAY or THE SEAS. 
 
 omitting all mere matter of aggravation, an(l pre- 
 mising that, as no oflieial papers ho.v.3 as yet been 
 made public, and I derive my aceount exclusively 
 from the various organs of the press, 1 shall not 
 take as granted any part of the dctuils essential for 
 my purpose that is at all likely to be disputed. 
 
 On the 7th of ISoveraber, 18G1, the 7Vc;j^, a Statemoat 
 steam-packet, carrying her Majesty's mails in the of the ''ftst;. 
 charge of an officer in her Majesty's service, 
 sailed, according to previous advertisement, on one 
 of the periodic voyages as an ordinary mail steamer 
 from the Havannah, a Spanish settlement, to tiie 
 island of St. Thomas, which is an appanage of the 
 Danish Crown, with the purpose of meeting at the 
 latter place, in the ordinary course of transit, the 
 West India Mail steamer bound for Southampton. 
 
 On board the Trent were JMessrs. Vinson and 
 Slidell, each accompanied by some members of liis 
 family, and a private secretary ; for all these per- 
 sons the usual fare had been paid, and their berths 
 secured beforehand as ordinary passengers to 
 England. These two gentlemen were known to 
 hold a position of considerable influence and trust 
 as members of tlie States seceding from the Ame- 
 rican Union ; they had run the blockade from 
 Charlestown to the Havannah, and were supi)oscd 
 to be in the possession of despatches, and cliargcd 
 
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THE HIGHWAY OF THE SEAS. 
 
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 with an important mission, and probably were 
 accredited Commissioners from the de facto Govern- 
 ment of those seceding States to the Courts of the 
 Tuilleries and St. James's respectively. 
 
 On the morning of the 8th November, the 
 Trent, while, according to the report in the Timea 
 of November the 28th, in the narrow passage of the 
 old Bahama Channel, was hailed and brought to 
 by the San Jacinto^ a ship of war in the service 
 of the Federal States of America, and there was 
 boarded by an officer of that vessel, who proceeded 
 to remove Messrs. Mason and Slidell, and their 
 secretaries, as prisoners of war, from the Trent 
 to the San Jacinto^ against the protest of the 
 captain of the Trent ^ and the officer in charge 
 of the mails, who stated that they yielded to 
 superior force only ; and after the persons re- 
 moved had appealed to the British flag for pro- 
 tection. The Trent was then allowed to continue 
 on her course without them. 
 
 Such are the facts. Upon the question, if any 
 such arise, as to the neutrality of the waters in 
 which the sei; ire took place, I do not propose 
 to say anything; it has not, so far as I *am 
 aware, been raised in the controversy, and as it 
 would obviously, if it could be raised, affi^rd so 
 easy and so speedy a solution of the whole 
 
THE HIGHWAY OF THE SEAS. 5 
 
 matter, it may be fairly assumed that it does 
 not arise at all. 
 
 Before, however, endeavouring to ascertain t\eT.imitsof 
 
 . , . . " liifflit of 
 
 rules of international law applicable to tins Visitation 
 
 state of facts, it is important — and by nothing seanh." 
 more than the turn which most discussions upon 
 this subject have hitherto generally taken, is that 
 importance made manifest — to start with the 
 assertion of that which, though never, indeed, 
 denied, has been continually lost sight of, namely, 
 that the lawfulness of the seizure of these persons 
 depends entirely upon the limits within which 
 the Riglit of Visitation and Search may be pro- 
 perly exercised. There are distinguished writers Haute- 
 on international law (and of all living the one limitation, 
 perhaps the most distinguished, M. Hautefeuille, 
 is among them), who maintain that the right of 
 search as distinguished from that of visitation 
 is altogether unjustifiable, and who limit the 
 belligerent right to that of being satisfied, by 
 the inspection of the official papers of the neutral 
 vessel, that the latter is of the nation whose 
 flag it bears; and, in the sole case of its desti- 
 nation being a hostile port, that the privilege 
 of its neutrality has not been forfeited by the 
 conveyance of contraband cargo, or the design 
 to commit a breach of blockade : this theory, how- 
 
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 6 THE HIGHWAY OF THE SEAS. 
 
 e^'er, is certainly one which is not so generally 
 adopted, as to be entitled to rank among the 
 nniversally acknowledged principles of the Law 
 ^ of Nations ; and the right of search, even when 
 the papers are in every particular genuine and 
 satisfactory, must he admitted to exist in practice 
 and to be sanctioned by prevailing usage. 
 But there are limits, beyond which the most 
 strenuous advocate of the belligerent right of 
 search has never ventured to claim for it an 
 extension. Search may be made for enemy's 
 property ; for articles contraband of war ; or 
 for men in the land and naval service of 
 (;iaim of the enemy. Throughout the great dispute be- 
 impress- twecn Great Britain and the United States, 
 incidental upon the alleged right of the former to impress 
 seareV ^ seamen on board American merchant ships (of 
 the analogy to which in the present case so 
 much has been so groundlessly asserted,) the 
 contention was confined exclusively to the at- 
 tempt to show that the right, which Great 
 Britain maintained, of reclaiming those who 
 owed allegiance to her as subjects, wheresoever 
 found, was a necessary incident to the right of 
 search as such. This the United States denied; 
 but in no instance was it ever suggested by 
 either party that enemy s subjects, other than 
 

 THE HIGHWAY OF THE SEAS. 
 
 those actua / engaged in their land or naval 
 service, could possibly come within the limits 
 of that right. 
 
 The truth of this statement an examination of 
 contemporaneous documents will abundantly esta- 
 blish. 
 
 During nearly the whole of the French revolu- 
 tionary war, Great Britain asserted and exercised 
 a right of searching private vessels, belonging to 
 subjects of neutral states, for the purpose of re- 
 claiming deserters and other i rsons liable to be 
 impressed into her naval or military service : this 
 claim was from the first strenuously resisted by the 
 United States, and was ultimately the cause of the 
 war between those countries in 1812, in which, as 
 Mr. Lawrence, the learned editor of Dr. Wheaton's 
 " Elements of International Law," has observed,* 
 all the claims of the latter against the former were 
 merged : since that time, to use the words of the 
 same writer, " The disregard by England and 
 France of all international rights, from the rupture 
 consequent on the peace of Amieng to the end of the 
 general European war in 1815, by order and de- 
 crees professedly retaliatory of each other, and 
 which sacrificed all neutral powers to their con- 
 flicting belligerent pretensions, have been disavowed 
 * Wheat. Int. Law, 6th ed. p. 537, n. 
 
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8 
 
 THE HIGHWAY OP THE SEAS. 
 
 
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 1 Pi'iiu;e 
 
 
 
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 * Declara- 
 
 
 1 li'ju, 1312. 
 
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 by both as constituting precedents for the future 
 conduct of nations." This acknowledgment of 
 itself suggests one answer, were the cases in other 
 respects at all parallel; but it is most manifest 
 that the claim of Great Britain, whether justifiable 
 or not, was founded solely upon the allegiance 
 owed by the subject as such to the crown, and 
 upon the consequent obligation to render military 
 service when required. That this is so, appears 
 throughout the history both of the disputes which 
 terminated in the war of 1812, and of the 
 subsequent negotiations between Mr. Kush, Mr. 
 Gallatin, and other representatives of the United 
 States, and the British ministers, with the view 
 of getting rid of that cause of complaint. The 
 Prince Kegent, in his declaration of 1812, uses 
 the following language : * " His Koyal High- 
 ness can never admit that in the exercise of the 
 undoubted, and hitherto undisputed right of 
 searching neutral merchant vessels in time of war, 
 the impressment of British seaman, when found 
 therein, can be deemed any violation of a neutral 
 Hag; neither can he admit that the taking such 
 seamen from on board such vessels can be con- 
 sidered by any neutral state as a hostile measure, 
 or a justifiable cause of w^ar. There is no right 
 • Annual Register, 1813, p. 2. 
 
THE HIGHWAY OF THE SEAS. 9 
 
 more clearly established tlian the right wliicli a 
 
 sovereign lias to the allegiance of his subjects, 
 
 more especially in a time of war." 
 
 Mr. Kush, the American Envoy Extraordinary Mr. IJnsii, 
 
 Aiiioriean 
 
 at the Court of London from 18] 7 to 1825, Envoy, on 
 in a conversation with Lord Castlereagh, to search, 
 which I shall have to refer again for another 
 purpose, seeks to confine the right within bounds 
 more narrow than those which I have conceded. 
 " The United States,"* he says, '* never denied to 
 Great Britain the right of search. They allege, 
 liowever, that this means search for enemy's pro- 
 perty or articles contraband of war, not search for 
 men." 
 
 In a subsequent passage, however, relating 
 another interview with Lord Castlereagh, he 
 adopts the more accurate limitation. 
 
 " He remarked*!* that we gave our ships a cha- 
 racter of inviolability that Great Britain did not ; 
 that we considered them as a part of our soil, 
 clothing them with like immunities. I said that 
 we did consider them as thus inviolable, so far as 
 to afford protection to our seamen, but that we had 
 never sought to exempt them from search for right- 
 ful purposes — namely, for enemy's property, articles 
 
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 * Residence at the Court of London, p. 160. t fd. 253. 
 
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10 
 
 THE HIGHWAY OF THE SEAS. 
 
 
 it 
 
 contraband of war, or men in tlie land or naval 
 service of the enemy. This constituted the utmost 
 limit of the belligerent claim as we understood the 
 law of nations." 
 rrcsitlent To these quotations I will add but one other, 
 ^Message, derived from a source which gives it an especial 
 
 1813 
 
 force on such a question. President Madison, in 
 his message for the year 1813, uses the following 
 words :* — 
 
 " The British Cabinet must also be sensible that 
 with respect to the important question of impress- 
 ment, a searcli for or seizure of British persons 
 or property on board neutral vessels on the high 
 seas, is not a belligerent right derived from the 
 law of nations, and it is obvious that no visit, or 
 search, or u' 3 of force for any purpose on board 
 the vessel of one independent power on the liigh 
 seas, can in war or peace be sanctioned by the 
 laws or authority of another power." 
 
 1 have been thus particular in citing these 
 authorities upon a point which might appear 
 beyond all doubt, because they are equally valu- 
 able for another purpose. They do indeed show 
 that it was as subjects, and subjects only, that 
 Great Britain sought to seize men on board of 
 American vessels ; but more than this, they show 
 * Ann. Eeg. 1813, p. 406. 
 
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THE HIGHWAY OF THE SEA8. 
 
 that then, and from the first, the United States 
 persistently refused to recognise any right in a 
 belligerent to search for its own subjects on a 
 neutral vessel. 
 
 The principle upon which the exercise of this 
 right was claimed, as incidental to the right of 
 search, may not at first be clear. There occurs, 
 liowever, in a work to which I have already had 
 occasion to refer upon another point, a passage 
 which furnishes the true explanation of the grounds, 
 on which this claim was based. 
 
 Mr. Rush devotes several pages of his " Eesi- 
 dence at the Court of London " to a " general 
 account " of the question of impressment, the 
 settlement of which was one of the most promi- 
 nent of the subjects which were entrusted to him 
 in the negotiations then pending between the 
 United States and Great Britain. 
 
 The case made by the latter Power he puts 
 thus : * " She complains that she is aggrieved by 
 the number of her seamen who get into the mer- 
 chant service of the United States, through our 
 navigation laws, and other causes. This takes 
 from her, she alleges, the right arm of her defence. 
 Without her navy, her existence, no less than her 
 glory, might be endangered. It is, therefore, vital 
 
 P. 164 
 
 11 
 
 
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12 
 
 THE IILIIIWAY OF THE SEAS. 
 
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 The main 
 <]uestionB. 
 
 to both, that when loar comes, she should reclaim 
 her seamen from the vessels of a nation where 
 they are so frequently found." The British Govern- 
 ment then appears to have reasoned thus : the 
 right of search depends on the principle, that a 
 neutral may not do that which results in a benefit 
 to one belligerent at the expense of the other: 
 Great Britain has by her own laws the right in 
 time of war to obtain, by impressment, the ser- 
 vices of her native merchant seamen on board of 
 her men of war : the employment of them on board 
 of neutral merchant ships is such a benefit to the 
 enemy, by depriving her, their mother country, of 
 those services, as to justify her under the belligerent 
 right of search in reclaiming them as her subjects 
 to their allegiance. The value of that reason- 
 ing need not be here considered ; but it does 
 explain what might seem obscure, and at once 
 takes from the iuutances of impressment even 
 the appearance of an analogy to the present 
 case. 
 
 Thus much by way of clearing the ground : 
 the main questions, those upon the answers to 
 which the whole difficulty hinges, are the three 
 following. 
 
 Isi,. What was the character of the vessel from 
 which these persons were removed ? 
 
.11 
 
 THE IIIGinVAY OF TIIK SEAS. 1'^ 
 
 2nd. What was tlie character of the persons 
 who were so removed ? 
 
 3rd. Arc the characters filled by those persons, 
 
 and the vessel respectively, such as justify the 
 
 seizure by the San Jacinto, according to the 
 
 received jn-inciples of international law ? 
 
 Upon the answers to the first of these questions Character 
 ^ . of the 
 
 there is now little or no doubt entertained in any Trent. 
 
 quarter. The Trent was a neutral vessel sailing 
 between neutral ports : there is no suggestion, and 
 there could not be room for any, of fictitious 
 papers, or of colourable destination (as in the case 
 of the Orozcmho) ; * at the time of the seizure, that 
 vessel was engaged in the regular postal service, 
 carrying the mails to join at 8. Thomas the home- 
 ward-bound mail steamer. Whether this is such a 
 duty as, upon general principles of international 
 law, should give to the vessel which performs it 
 any privileges of exemption from visitation and 
 search similar, if not analogous, to that universally 
 accorded to neutral ships of war, is a question 
 which I propose to consider under the third of the 
 above heads ; on the other hand, I wish at once to 
 repudiate any idea of claiming that or any such 
 privilege as derived from the fact of her Majesty's 
 mails so called, being on board the vessel, and 
 
 * 6 Eob. Eep. 430. 
 
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11 
 
 THE HIGHWAY OF THE SEAS. 
 
 
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 under the charge of the admiralty agent, an officer 
 in her Majesty's navy ; the fact is not without its 
 value, as showing that all was being done in the 
 due and regular performance of an ordinary em- 
 ployment with perfect bona fides, without fraud or 
 concealment ; but I cannot for one moment grant 
 that a vessel the property of private individuals, 
 as this was, and used by them for purely com- 
 mercial purposes, could acquire, by contracting 
 with Government to convey at stated times a few 
 mail bags and the person in cliarge of them, the 
 rights and exemptions enjoyed by ships of war and 
 other vessels, the property of the State, or em- 
 ployed for the time exclusively upon State pur- 
 poses, any more than I can conceive that a Queen's 
 messenger in travelling on a State errand, by his 
 mere presence as a passenger on board a mail 
 packet, would impart to that packet a character 
 exempting it from the jurisdiction of a foreign 
 port, in which it might be coaling, or repairing, or 
 otherwise temporarily delayed. 
 Arjrnment The character of the vessel then is ascertained 
 as to"nou-^ ^^ ^® *^^* ^^ ^ neutral packet, sailing periodically 
 obligjitioa ijetween neutral ports under contract with Govern- 
 
 01 pri- ^ 
 
 vatomer- nient for the postal service; this character of 
 chants to ^ 
 
 carry, dis- itself answers an argument in favour of a rifi-lit 
 
 tinguished. 
 
 to seize, founded on the 
 
 folio wine: 
 
 o 
 
 passage 
 
THE HIOHWAY OF THE SEAS. 
 
 from the judgment in the Caroline.* "It has 
 been argued truly," says Sir William Scott, "that 
 whatever the necessities of the negotiation may 
 be, a private merchant is under no obligation to 
 be the carrier of the enemy's despatches to liis 
 own Government. Certainly he is not, and one 
 inconvenience to which he may be held fairly 
 subject is, that of having his vessel brought in 
 for examination, and of the necessary detention 
 and expense. He gives the captors an undeniable 
 right to intercept and examine the nature and 
 contents of the papers which he is carrying ; for 
 they may be papers of an injurious tendency, 
 although not such on any a priori presumption 
 as to subject the party who carries them to the 
 })enalty of confiscation ; and by giving the captors 
 the right of that inquiry he must submit to all 
 the inconveniences that may attend it." It is 
 said that a right to seize despatclies, thougli 
 the vessel be not confiscated, is liere distinctly 
 recognised ; but in the first place, " intercept " 
 is by no means equivalent to " appropriate," and 
 when followed by the words, '' and examined," 
 obviously must mean " detained on the passage," 
 for the purpose, namely, of examination, and no 
 more : and next, the answer, of which I have 
 
 * 6 Rob. Eep. 4G9. 
 
 15 
 
 ti 
 
 . I 
 
 / f 
 
 1-1 
 
 Ti 
 
 
 
 i : 
 
k; 
 
 Tin: IIUillWAV OF Tin: .SKAS. 
 
 I( 
 
 ,) ' 
 
 1 
 
 Character 
 of persons 
 seized. 
 
 spoken, is contained in the fact that the 7>c>?Y, as a 
 public mail packet, was under tlie very ohligation 
 under which the private merchant was not. 
 
 Now, with reference to the character of the 
 persons, there appears in the outset an obstacle, 
 the cause of which has, to my mind, been far 
 iJcmoval too lightly treated. The act of the officers of 
 informal, the Sail Jacinto in removing the persons of ^lessrs. 
 Mason and Slidell from the Troit, leaving that 
 vessel to pursue her voyage unmolested by 
 further interruption, has been by many regarded 
 as a mere neglect of due formality, an irregular 
 proceeding which may be waived if the substance 
 of the complaint be subsequently established — 
 some have been at pains to express a lofty pity 
 for those who are ready to rely upon a so called 
 technical objection, founded on the non-fulfilment 
 of strict legal requirements in an unessential pre- 
 liminary ; and American writers have gone so 
 far as to claim credit for considerate leniency 
 and courteousness in not taking the whole vessel 
 into port for condemnation. What might have bo-en 
 the result of such a course is a apecuiauon in 
 which it would be unprofitable to indulge; one 
 obviojo result of the neglect to follow the rules, 
 wliicli the <i0'':'*v of nations has approved as 
 requiite to Ihe due exercise of a right, trenching 
 
 I 
 
 f 
 
Tin: iiKiiiwAv or tin: skas 
 
 '-") 
 
 as 
 
 ig 
 
 J'o scrioufsly upon the iiuli^pendence of neutral 
 ])Owers, is that the very i'.K't ot* these gentlemen 
 being in any sense churged with the performance 
 of a public service, except so far as their own 
 a(buission is said to have gone, rests upon the in- 
 secun! foundation of general re])ort; and whether 
 thrv be, duly accredited commissioners, or simply 
 private agents invested with a (juasi-diplomatie 
 character, is a matter which is, even at this 
 period, not properly ascertained. But a more 
 serious consequence than this, and one which 
 goes to the root of the whole transaction, I prefer 
 to notice in. the words of one who little antici- 
 pated when he used them, how forcibly in half 
 a century they would still be found to apply 
 between the same parties with this difference, 
 that the parties had exchanged positions. 
 
 Mr. Kush, the American envoy, whose language 
 I have before had occasion to adopt, while urging 
 strongly upon Lord Castlereagh the injustice of the 
 system of impressment then exercised by British 
 men-of-war upon sailors ou board of American 
 merchant ships, put the case thus : — * 
 
 *' A British trigate in time of war, meets an 
 American merchant vessel at sea, boards her, and 
 under terror of her guns, takes out one of her 
 * Kosiiini ill rouri, ol' London, p. loS. 
 
 .1 I 
 I 
 
 /] 
 
 I ; 
 
 y 
 
 ; I 
 
 I 
 
 'I 
 
 ■i^?fU*fWBfc-a^ 
 
18 
 
 Tin: II Kill WAV (»K THK SKAS. 
 
 
 crew. The boarding lieutenant asserts, and let it 
 be admitted, believes the man to be a Briton. By 
 this proceeding, the rules, observed in deciding 
 upon any other fact when individuals or national 
 rights are at stake, are overlooked. The lieutenant 
 is accuser and judge. He decides upon his view 
 instantly. The impressed man is forced into the 
 frigate's boat and the case ends. No appeal 
 follows. There is no trial of any kind. More 
 important still, there is no remedy, should it appear 
 that a Avrong has been committed. Different is 
 the mode of proceeding if an American merchant 
 vessel be stopped and examined at sea under 
 circumstances subjecting her to suspicion as prize 
 of war. In the latter case, the boarding otticer 
 sends the vessel into port under accusation. Facts 
 are inquired into judicially. Both parties are 
 heard. Both have ample opportunities of bringing 
 forward proofs. Should the tribunal decide that 
 no lawful cause of seizui'e existed, the vessel is 
 restored, the captors are answerable in damages, 
 and there are adequate modes of making them 
 pay. If, on the other hand, the Qnan seized be in 
 fact no Briton, the most he can ever hope for is to 
 be released. . . . Should the order for his discharge 
 be obtained, where is his action for damages ? where 
 is his remedy for loss of liberty? He has none.' 
 
 ) ! 
 
Tin: in en WAY <»f thi: skas. 
 
 No comment, no attempt at iUiistration on my 
 part is needed to sliow liow wholly within the 
 principles of tliese words lies the selt-constituted 
 tribmial in the present case. 
 
 Surely, then, it is no unimportant omission of a 
 mere formality, the consequences of which have so 
 marked a resemblance to those which are treated 
 as proofs of an unjustifiable oppression. 
 
 The uncertainty in which this matter is thus 
 left compels me to consider the character of these 
 persons from two points of view; as having, 
 or not having, any special privileges and protec- 
 tion, which might appertain to them as ambas- 
 sadors or envoys ; but which would not do so, did 
 they rather hold t^^e semi-official position of secret 
 emissaries ; first, however, should be ascertained 
 the grounds upon which, whether they be ac- 
 credited commissioners or not, the Federal States 
 claim in any event to make themselves masters 
 of their persons. 
 
 This they appear to do in three ways :— 
 
 1. As subjects. 
 
 2. As contraband of war. 
 
 3. As enemies simply. 
 1 am not, indeed, aware of any distinct claim 
 
 having been put forwar<l wliich recognises tlic 
 difierent nature of the right asserted in the secumi 
 
 V 2 
 
 19 
 
 Claim of 
 right to 
 seize 
 persons 
 threefold. 
 
 S\ 
 
 'I 
 t 'i 
 
 ■'J 
 
 ■ 1 
 
 1 < 
 
 * I i 
 
 if 
 
 1 t 
 
 . I 5 
 
 E't'l 
 
 ;*iiia^Mriiiw«iO*'-7 
 
 - •.i(Jifeie?s=|fi:,3;'-J»Ei-*- s--»*^»^in 
 
20 
 
 THE IIKiHWAV OF THE HEX^. 
 
 I 
 
 I 
 
 Ab sub- 
 jects. 
 
 and in tlie third case ; it will, however, simplify th 
 investigation if this division be adopted. 
 
 1. The claim to seize tliese gentlemen as subjects 
 depends on a twofold consideration ; first, are they 
 subjects liable to be taken by a belligerent from a 
 neutral vessel, assuming such a belligerent right 
 to exi.st? and second, does such a right exist? 
 
 Put in this form, the claim is ou the face of it 
 reduced to a dilemma ; for, as there is no doubt 
 that it is only by ^ irtue of a state of belligerency, 
 so to speak, existing, tliat any sucli right, be it of 
 visitation and search, or, as England claimed before 
 the war of 1812, cf impressment, is claimed at 
 all, and as the essential element for a state of 
 belligerency is expressed by the homely saying, 
 *' it takes two to make a quarrel," it follows that, 
 the Southern States being at this time the onl} 
 people with which the Northern States had any 
 quarrel, members of the Southern States are either 
 subjects, and if so, not belligerents, in which case 
 no belligerency, and therefore no right even of 
 visitation, exists, or they are not subjects, and 
 then cadit qiicestio. 
 Rebels are But, indeed, as to tlie right of neutral nations to 
 
 111* 
 
 gerents. treat provinces in the position of these Southern 
 States, whether they 1)e called rebcllinci' or se- 
 ceding, as belligerents to the same extent as if 
 
THE HIGHWAY OF THE SKAS. 
 
 2J 
 
 they were independent nations, there is not the 
 
 shadow of a doubt. Dr. AVlieaton, tlie weight of 
 
 whose opinion the States of North America would 
 
 naturally be tlie last to undervalue, exp^v^ssly lays 
 
 it down, in a passage, the marginal note to which 
 
 runs thus, " Parties to civil war entitled to rights 
 
 of war against eacli other," tliat ^' If the foreign 
 
 State professes neiitmlity, it is bound to allow 
 
 impartially to both belligerent parties the free 
 
 exercise of those rights which war gives to public 
 
 enemies against each other : such as the right of 
 
 blockade and of capturing contraband and enemy's 
 
 property. But the exercise of those rights on the 
 
 part of the revolting colony or province against 
 
 the metropolitan country, may be modified by the 
 
 obligation of treaties previously existing between 
 
 that country and foreign states." * And in his 
 
 reports of cases decided in the Supreme Court. 
 
 the same principle is continually recognised.f Readiness 
 
 And not only so, but in times very recent, a readi- states to 
 
 ness to adopt this principle has been evinced by Hungarian 
 
 the Government of the United States itself, to a '■®^®'^- 
 
 degree which elicited grave remonstrance on the 
 
 part of one European State, and was not imitated 
 
 * Wheaton's Int. Law, p, 32. 
 i United States v. Palmer, Wheat. Rep. 3, 610. The Divine 
 Pastora, Id. 21, 63. The Niceatra Signora de la Caridad, 
 
 Id 5011. 
 
 I . 
 
 \-'l 
 
 - J 
 
 . t 
 
 i 
 
 i 1 
 1 i 
 
 I! 
 
 \l 
 
 ill 
 
 t : 
 
 I!' 
 
 '^•*-',SM?*«^^.^9A■J' 
 
 -'■■i-"(»#taiit«S*NiiW»»BSiiV«' 
 
i)«) 
 
 Argument 
 from acts 
 of Great 
 Britain. 
 
 THE HIGHWAY OF THE SEAS. 
 
 by any other. In the year 1849, the people of 
 Hungary, under Kossutli, had offered certainly 
 not more resistance to the Emperor of Austria 
 than the Seceding States have done to the Federal 
 States, yet the then Government of the United 
 States thought it consistent with the strictest 
 neutrality to authorize an agent to declare their 
 willingness to recognise the new State, in the event 
 of its ability to sustain itself; and a prominent 
 place in the President's message, and a lengthened 
 correspondence with the Austrian Minister, were 
 deemed not unworthily bestowed upon the subject 
 of their justification.* 
 
 Before leaving this part of the matter, I feel 
 bound to notice one form of defence in the nature 
 of that which lawyers technically term an estoppel, 
 which, although promiscuously applied to ail parts 
 of this case in a manner which speaks more for 
 honesty of purpose than for clearness of judgment 
 in those of our own country who have used it, 
 applies, if at all, only to this part which I am now 
 considering. It has been continually urged that, 
 right or wrong, Great Britain may not complain of 
 the act of the San Jacinto, for she has been noto- 
 riously delinquent in the very same circumstances. 
 
 * Webster's Works, vi. p. 488-506. 
 6tU edit, by Lawrence, p. 36, w. a. 
 
 See Wheat. Int. Law, 
 
 • tlasi^v 
 
THE iiirniwAY or the seas. 
 
 23 
 
 It is no part of my present purpose to question the 
 moral of this reasoning ; were I to do so, I should 
 find the language of an American judge in a case 
 of great importance* more impressive and more 
 appropriate than any I could use of my own ; but, 
 inasmuch as the objection seems to appeal to our 
 sense of honour and fairness, I prefer to deal at 
 once with the assertions upon which the argument 
 is founded, and to deny the existence of one single 
 instance of alleged aggressions on the part of 
 Great Britain at all parallel in its circumstances to 
 the present one. Of the cases specially cited to 
 prove this charge, those of Laurens, the deputed 
 Minister to Holland from the United States, of 
 Lucien Buonaparte, and of the two nephews of 
 Washington, the first has been conclusively dis- Case of 
 posed of by the proof that the Mercury, on 
 board of which Mr. Laurens was found, was 
 not a neutral but a belligerent.f The applica- 
 
 * The Nereide, 9 Cranch Rep. p. 388. ** There is a principle 
 of reciprocity known to courts administering international hiw, 
 but I trust it is a reciprocity of benevolence, and that the angry 
 passions which produce revenge and retaliation will never exert 
 their influence on the administration of justice. Dismal would 
 be the state of the world, and melancholy the ofhce of a judge, if 
 all the evils which the perfidy and injustice of power inflict on 
 individual man, were to be reflected from the tribunals which 
 profess peace and good will towards all mankind." 
 
 + Holmes's Annals of America, 2, 319. Belsham's Hist. Gt. 
 Britain, 7, 53. Adolph. Hist. Eng. 3, 221. 
 
 1 
 
 I ; 
 

 * ; 
 
 H 
 
 ■ .'." 
 
 ^^11 
 
 24 
 
 Case of 
 Lncien 
 Buona- 
 parte. 
 
 THK HfdinVAY UF THi: SKAS. 
 
 bility of the second upon any ground 1 liave 
 not yet been able to discover. Lucien Buona- 
 parte embarked at Leghorn on board an American 
 vessel, to sail to Cagiiari. On his arrival at 
 that place he demanded of the British resident 
 Minister protection and permission to proceed 
 unmolested to America. The second portion of 
 this demand our Minister was unauthorised to 
 accede to, and consequently desired him to pro- 
 ceed under convoy to Mrdta and wait for further 
 orders, which when they came were for his 
 transfer to Great Britain.* Throughout the whole 
 transaction he appears to have been a consenting 
 party, if not positively desirous of being taken 
 to Eno'land. 
 
 These two cases should properly have been 
 discussed under the third head, they being cases 
 of claim to seize the persons of enemies simply, if 
 at all in point ; but as they, equally with the third 
 case which I have noticed (that of the nephews 
 of Washington), and which is acknowledged to 
 have been a mere mistake,! have been treated as 
 parallel instances, though having, except in the 
 last case — one of impressment — not even the sem- 
 blance of a grievance ; I thought it better to clear 
 
 * Annual Eeg. 1810, p. 264. 
 
 t Manning's Com. S75. Jefferson's Mem. iv. 190-5. 
 
 /^ 
 
 Mit* m'm» I HiU aghti I 
 
Tiir. irioiiWAY or thk skas. 
 
 2', 
 
 the Avay of them also before entering on the real 
 matter in dispute. 
 
 But it is said these persons were liable to be ^s contra- 
 
 ^ band of 
 
 seized on board of a neutral vessel as contraband war. 
 of war. Here, again, we are met by tlie obstacle 
 to which I before alluded — the absence of mate- 
 rials for forming a correct opinion upon the real 
 
 nature of their mission and authority. Assuming, bassador 
 
 . , " , . T coutra- 
 
 however, that thev are snown either to be invested baud. 
 
 witli the character of accredited commissioners, or 
 envoys, which may be taken to be equivalent to 
 that of ambassadors, or to be " persons sent out on 
 the public service at the public expense," it still 
 remains to be considered whether, upon either sup- 
 position, they were, under the circumstances of 
 the case, contraband within the meaning of that 
 term as applied to persons by writers on inter- 
 national law: I say as a]»plied to persons, for it 
 must be remembered that, in strictness, contraband 
 is a term limited to articles, such as munitions of 
 war in all, and other merchandise in some, cases, 
 the property of neutral owners, being conveyed to 
 belligerents on neutral vessels ; such articles the 
 other belligerent is allowed to seize, upon the 
 principle that the furnishing them to an enemy is, 
 in effect, to aiibrd him direct assistance in main- 
 taining the war, to the detriment of his adversary. 
 
 'K- 
 
 I ■ i 
 
 ,! 
 
 it^ 
 
 11 
 
 i1«S«ilfW««»<i!a«Maa. ««««»««,',-: 
 
2r, 
 
 TUH 11 Hi II WAY OK TIIK SKAS. 
 
 rv 
 
 :! 
 
 f » 
 
 II' 
 
 HI 
 
 ;; I 
 
 ^'1 
 
 sacrc. 
 
 Tlie act, however, of conveying persons in bigh 
 stiition and trust among tlic enemy, if it be not 
 justifiable on the general principles of international 
 law, is a far more serious violation of that law 
 than the mere conveyance of a few tons of salt- 
 petre or a few stands of arms ; and this is recog- 
 nised ly the difference of the penalty enforced on 
 the ntutral, wldch in the former case extends only 
 to the eonfiseation of the contraband articles, but 
 in the other case embraces tlie ship as well. 
 Stopping? Now so far as the privilege of ambassadors is 
 sudor on concerned, I have little doubt that no one would 
 u^ ])d^- i,.^yg dreamed of calling it into question, but for an 
 unfortunate phrase in the judgment of Sir William 
 Scott, in the case of the Caroline. The peculiar 
 sacredness of the persons of ambassadors, the 
 extraordinary protection and immunities which 
 they enjoy, and the immense importance to the 
 interest of tlie world tliat this should be so, are too 
 familiar to the most superficial student of the law^ 
 of nations to admit of a doubt that, on general 
 principles, if any subject of one belligerent state 
 can, under any circumstances, be privileged from 
 capture by the other, one who is proceeding on 
 board a neutral vessel to fulfil the duties of 
 ambassador in a neutral country, is secure. What, 
 then, is the meaning of this remark of the distin- 
 
 lll' 
 
 h 
 
THE II 10 11 WAY OK THE SKAS. 
 
 guislied judge wliom T have mentioned : " You 
 may stop the ambassador of your enemy on bis 
 passage?" The whole paragrapli is as follows : — 
 " 1 have before said, that persons discharging 
 the functions of Embassadors arc, in a peculiar 
 manner, objects of the protection and favour of 
 the h • of nations. The limits that are assigned 
 to the operations of law against them, by Vattel, 
 and otlic. writers upon tliose subjects, are, that 
 you may exercise your right of war against them 
 wherever the character of hostility exists ; you 
 may stop the Embassador of your enemy on his 
 passage, but when he has arrived, and has taken 
 upon himself tiie functions of his office, and has 
 been admitted in his representative character, he 
 becomes a sort of middle man, entitled to peculiar 
 privileges, as set apart for the protection of the 
 relations of amity and peace, in maintaining which 
 all nations are, in some degree, interested. It has 
 been argued, that he retahis his national character 
 unmixed, and that even his residence is considered 
 as a residence in his own country ; but that is a 
 fiction of law invented for his further protection 
 only, and as such a fiction, it is not to be extended 
 beyond the reasoning on which it depends. It 
 was intended as a privilege ; and I am not aware 
 of any instance in which it has been urged to his 
 
 27 
 
 
 I £ 
 
 ^M 
 
 
 p 
 
28 
 
 Tin: umriwAY (tK tiik si: as. 
 
 
 : I 
 
 Vattel 
 cited. 
 
 disadvantage. (Jould it be said that lie would, on 
 that pi'ineiplc, be subject to any of the ilglits of 
 war in a neutral territory ? Certainly not ; he is 
 there for the purpose of carrying on the communi- 
 cations of peace and amity ; for the interest of his 
 own country primarily, but, at the same time, for 
 the fm-therance and protection of the interests 
 which the neutral country also has in the conti- 
 nuance of those relations."^'- 
 
 In the first place be it observed that this asser- 
 tion is in no way necessary for the decision of the 
 point in the Ciise, which was the lawfulness of 
 conveying despatches on board a neutral vessel 
 from an ambassador of a belligerent in r-. neutral 
 state to the belligerent country, but merely by 
 way of illustrating the general proposition which 
 immediately precedes and must b*' taken to 
 qualify it. " You may exercise your right of war 
 against them (ambassadors) wherever the character 
 of hostility exists." This is a very essential limi- 
 tation, the existence of a character of hostility, 
 and a neutral mail-packet sailing between neutral 
 ports does not, one would think, afford a state of 
 things conducive to the development of such a 
 character. 
 
 But Secondly, the learned judge does not profess 
 ' G Kob. Kep. -.67, 8. 
 
 
 1 
 
THE II in H WAV Ob' TIIK SKAS. 
 
 20 
 
 to originate this princi])l(', but merely to .idopl 
 and apply tlie opinions of Vattel, whom he ex- 
 pressly mentions, and <tf other publieists. Now on 
 reference to tlie only passage of that writer which 
 at all bears out tlie statement cited, the whole 
 difficulty is cleared away. lie writes: — '• ( )n 
 pent encore attacpur et arrek'r ses gens, ])artout oil 
 on a la libt^'rte dcxerecrdcs aetes d'hostilite. ISun 
 seulement done on pout justement refuser le pas- 
 sage aux ministres (pi'un ennemi envoie Ix d'autres 
 souverains : on les arrete nieme s'ils entreprennent 
 de passer secretement et sans permission dans l(;s 
 lieux donl on est niaitre ; " * and then, by way of 
 illustration, follows the well-known case of the 
 Marechal de Belle Isle, who on his road as am- 
 bassador from Paris to Berlin was arrested in a 
 village of Hanover, the sovereign of which, being 
 also King of England, was then at war with 
 Frince ; so that at the time of his arrest he was 
 actually within the enemy's territory, and therefore 
 the character of hostility existed ; or, in Yattel's 
 own words : " He was in that position where the 
 enemy had a right to use hostile measures against 
 him." Moreover it must be observed that the 
 entire bearing of the subsequent remarks is to 
 anticipate in favour of the ambassador an objection 
 ' N'aticl, Droits rl.;s .uciis, iv. 7, 8."/. 
 
 '^ 
 
 i 
 
 I 
 
 ! 
 
 i 
 
 i : . 
 
'M) 
 
 III'. iiKJiiWAV ov rni: si.as. 
 
 r 
 
 i 
 Vf 
 
 l« 
 
 iif 
 
 II 
 
 wliich might be Uxkv.n on tlic groiiiul ot this uxtrii 
 tcrritorisd privilege in respect of his rehition, not 
 with the belligcren*^, but witli tlie neutral power 
 within the limits ot' whose terrltoriul jurisdiction 
 lie otherwise would necessjirily be. The })rivileges 
 whicli arise upon liis arrival in the neutral country, 
 and upon his assumpJ;ion ot* the functions of his 
 office, are ])urely immunities from the jurisdiction 
 of that country, and it by no means follows, that 
 because necessarily that immunity cannot arise 
 until his arrival, therefore his " inchoate character " 
 is not sufficient, at all events when actually on 
 board a vessel of the country to which he is pro- 
 ceeding, to protect him from capture by a belligerent. 
 Alirieuce of If, however, Messrs. yiidell and JMason nuiy not 
 to Ihow^ " claim the protection accorded to ambassadors as 
 
 chaiiwter '^^^^^' ^^^^^* ^^ *^^^^'® ^^ '^'^^'^^ ^^''^^ ^^'^^ ^'^^^ within 
 the other category which I have mentioned, as 
 
 persons sent out on the public service at the 
 public expense? what is there to show that they 
 are not travelling at their own expense, and pos- 
 sessed of no official character, but intending to act 
 as private persons though on public affiurs ; much 
 as was done bv the numerous emissaries of the 
 French Government during the revolutionary wars, 
 ■whose private correspondence,* though often most 
 
 ' Sec The L'uroliiM!, 6 lIol». licp. 4ii9. 
 
 
THi: HK.IIWAV n| I III; SKA.^. 
 
 I 
 
 dctrimerital to the public iiitcnjst.s ot* this country, 
 could never l)o distuited into the likeness of a 
 public despatch, so as in any sense to assimilate 
 contraband of war V 
 
 *' The substance of the thin^-," says 8ir W. 
 Scott, in the case of tlie Frfruf/s/ti/t* wliere the 
 vessel was let out for the transport of mariners, 
 belligerent subjeels, " is whether tlicy are vessscis 
 h;red by the agents of the (Jovernmeikt for tlie 
 ])ur|)Ose of conveying sohliers or stores in tlie, 
 service of the State. * * "^ It would be a 
 very different case if a vessel a})))eared to be car- 
 rying only a few individual invalided soldiers 
 or discharged seamen, taken on board by chance 
 and at their own charge. * * * * It is asked, 
 will yon lay down u principle that may be carried 
 to the length of ])reventing a military officer, in 
 the service of the enemy, from finding his way 
 home in a neutral vessel to Europe? If he was 
 merely going as an ordinary passenger, as other 
 passengers do, and at his own expense, the ques- 
 tion would present itself in a very different form. 
 Neither this court nor any other British tribunal 
 had ever laid down the principle to that extent." 
 
 Assuming, however, that these persons are shown Aiv public 
 to be " employed on the public service at the public iiai)ie to 
 
 " 6 Rob. Kcp. 4>J0. 
 
 seizure. 
 
32 
 
 THK IIKillWAV OK THE SKAS. 
 
 tJiv 
 
 it 
 
 ,[ 
 
 u 
 
 ? 'n 
 
 expense," are tliey, therefore, liable to arrest? The 
 phrase I have adopted from tlie judgment of Sir 
 W. Scott in tlie case of the Orozembo* as the most 
 compreliensive form in wliich. so far as I am aware, 
 the principle contended for is enunciated. The 
 whole passage is as follows : — 
 
 " In tliis instance tlie military persons are three, 
 and there are besides two other persons who were 
 going to be employed in civil capacities in the 
 Government of Batavia. Whetlier the principle 
 would apply to them alone I do not feel it necessary 
 to determine. I am not aware of any case in 
 wliicli that question has been agitated, but it 
 appears to me, on principle, to be but reasonable 
 that, Avhenever it is of sufficient importance to tlie 
 enemy that such persons should be sent out on the 
 public service, Ctt the public expense, it should 
 aiford great ground of forfeiture against the vessel, 
 that may be let out for a purpose so intimately 
 connected with the hostile operations." 
 
 The whole gist of this is to be discovered in the 
 
 last sentence, " a purpose so intimately connected 
 
 with hostile operations." Of such a purpose what 
 
 Privilege, evidence is there ? In the absence of that evidence, 
 
 neutral the remarks of the same learned judge in another 
 
 couniiy. Q.^^^Q^ t],^t of the CaroUne.;\ have so obvious an 
 
 ' <i Koi). IJpp. l;il. 
 
 ♦ 6 Hob. Koj). 4f.)') 7, 
 
THE HIGHWAY OF THE SEAS. 
 
 38 
 
 application that th3 introduction of them requires 
 no apology. 
 
 " The neutral country has a right to preserve 
 its relations with the enemy, and you are not at 
 liberty to conclude that any communication be- 
 tween them can partake in any degree of the 
 nature of hostility against you. The enemy may 
 liave his hostile projects to be attempted with the 
 neutral State, but your reliance is on the integrity 
 of that neutral State, that it will not favour nor 
 participate in such designs, but, as far as its own 
 councils and actions are concerned, will oppose 
 them. And if there should be private reason to 
 suppose that this confidence in the good faith of 
 the neutral State has a doubtful foundation, that 
 is matter for the caution of the Government, to be 
 counteracted by just measures of preventive policy." 
 
 If such a purpose were shown, there would still 
 remain the exemption which the peculiar nature of 
 the vessel, and the character and termini of the 
 voyage, afford, a matter on which I shall have 
 something to say presently. 
 
 Before quitting this part of my subject, it is Analogy of 
 requisite to notice one mode of discussing it, the '^^'^''''*^''^'^- 
 reasoning in wliich is concentrated in an epithet. 
 These persons have been, with a boldness of 
 imagery worthy of a more poetic theme, termed 
 
 D 
 
 I 
 
 I i 
 
;u 
 
 THE HIGHWAY OF THE SEAS. 
 
 ■i .H 
 
 l)«spat( 
 to lieu' 
 Crovoru- 
 inont. 
 
 h 
 al 
 
 . i 
 
 " living despatches," and, a preliminary difficulty 
 tlius easily got rid of, the matter has been treated 
 as one purely of despatches. Were this allowable, 
 I still have no doubt that the exemption, to which 
 I last alluded, would apply with even greater force 
 to them. But the simple answer is that tliey are 
 not despatches. The law of nations, equally 
 with common sense, recognizes a valid distinc- 
 tion between documents, which lie open to the 
 eye, conveying a meaning on the face of them, 
 or at least decipherable when the key is acquired, 
 and the mind of man, to which there is no key 
 but itself; and will not, in a case like this, where 
 the actual despatches, if any ever existed or still 
 exist, at all events are not to be found with the 
 captors of their bearers, sanction such an insult 
 to that principle of justice, which is the essence 
 of all law, as first to assume the contents of a 
 document, and then to impute a knowledge of 
 them for the purpose of founding on it a sentence 
 of condemnation. 
 
 Beyond all this it must never be forgotten that 
 we may assume these despatches, living and 
 lifeless alike, to liave been on their passage to 
 a neutral power for the sole purpose of putting 
 their Government in communication with that of 
 the neutral State. Now the right of the neutral 
 
I 
 
 THE HIGinVAY OF THE SEAS. 
 
 State to maintain communication with the bellige- 
 rents ivS unquestionable.* Suppose, then, the neutral 
 State, for the purpose of receiving a communication 
 from one of the belligerents, to have contracted 
 with one of its own subjects, whose private vessel 
 was, as it might of course be without any violation 
 of neutrality, in a belligerent port, for the transmis- 
 sion by his vessel of such communication ; is the 
 position tenable that that vessel while on the high 
 seas is liable to be seized and confiscated for carry- 
 ing contraband of war, by reason of the other bel- 
 ligerent finding that despatch on board ? Is it the 
 more so, because the despatch is entrusted to a 
 subject of the belligerent for special custody and 
 safe delivery ? To this it may be replied, " No ; 
 but the despatch and its bearer may be taken." 
 But on what ground ? — clearly not as contraband, 
 for that, in the case of persons or despatches, 
 involves necessarily confiscation of the whole ship,t 
 and neither compulsion } nor ignorance § gives 
 any excuse. It must then be on the ground that 
 they are enemy's goods and enemy's subjects ; 
 and this brings me to the third ground which 
 1 before mentioned, for J apprehend tluit the case 
 
 .;o 
 
 I i 
 i 
 
 • Atalanta, 6 Rob. 440 ,; Caroline, C I'ob. 40(3. 
 
 f Wbeaton, Int. Law, 5(32. X Carolina, 4 Kob. licp. 25G. 
 
 § Orozerabo, Hob. Rep. 430. 
 
 d2 
 
3f? 
 
 THE IIiailWAY OF THE SEAS. 
 
 i"n 
 
 A.- flio 
 ciicmic 
 
 of .1 mnil -packet is certainly a stronger one in 
 favour of the immunity of such a communication 
 and itH guardian, than that of a vessel under a 
 S])e(ial contract to perform one particular service. 
 
 Now although tlie principle of " free ships free 
 ,:;oods " has at last been recognised by Great 
 Britain under the Treaty of Paris, 1856, yet the 
 United States, having refused to become parties 
 to tliat, and not being bound, by any other treaty 
 witli Great Britain to recognise that principle, are 
 undoubtedly warranted in any dispute with that 
 State in insisting upon what they have hitherto 
 witliout exception striven to abolish — tlie belli- 
 gerent's right to seize enemy's goods on board 
 a neutral vessel. But waiving the question whether 
 a despatch to a neutral power could by any possi- 
 bility be brought within the meaning of the 
 rule of international law, which makes goods 
 of enemies — articles, that is, of an appreciable 
 commercial value — liable to seizure, no amount of 
 figures of speech can suffice to get rid of that 
 radical distinction of things and persons which the 
 rules of international law admit and adopt to its 
 fullest extent, and I fear that the theory of the " em- 
 bodiment of despatches," must be reserved by its 
 gallant and ingenious author for further develop- 
 ment in a Pythagorean millennium. The question is 
 
 K, 
 
 I^Sk. 
 
I 
 
 
 THE HIGHWAY OF THE SEAS. '>7 
 
 thus reduced to tlic simple one of the riglit to seize 
 individual subjects of the belligerent as such on 
 board a neutral vessel ; for if they be regarded as 
 more than mere subjects, as subjects charged with 
 some public office, they become at once assimilated 
 to that class in the nature of contraband, to wliich 
 I have, in my former remarks, endeavoured to 
 show that they do not belong. 
 
 It is obvious that at this point the whole Territo- 
 question of what has been called the territoriality merchant 
 of neutral vessels is at once opened. For the argu- ^ "^^' 
 ments by which the principle, that the flag covers 
 the goods, has been upheld as being in favour 
 of unrestricted commercial enterprize, have at 
 best but a modified application to the case ot 
 the persons of enemies : while it should seem at 
 first sight to follow a fortiori, that if enemies' 
 goods on neutral bottoms are liable to seizure, 
 the persons of enemies : the transport^ of whom 
 may occasion far more harm to the belligerent 
 and far more benefit to his adversary, should be 
 so likewise. That, however, this is not so, will, 
 I believe, appear as well from a study of the 
 theory, as from an investigation of the practice 
 of the right of visitation and search, upon 
 which alone any interference with a neutral vessel 
 is founded. 
 
 
 1 1 
 
;i-. 
 
 THE HIGHWAY OF THK SEAS. 
 
 ft 
 
 If 
 
 I 
 
 II 
 
 1; 
 
 Oii:j^in of 
 scarclj, 
 
 That it is a serious interference witli the inde- 
 pendence of the neutral tliere can be no doubt; 
 oil iir^uTrui ^^^^^ *^^^ right of such an interference, whether 
 justifiable on grounds of expediency or necessity, 
 or not, had its origin in the might of the bel- 
 ligerent, and its permanence in the weakness of 
 tlic neutral, is to be expected and is historically 
 the fact ; the continual reappearance of armed 
 neutralities, from time to time upon the stage of 
 history, suffices to show how much of the rights of 
 belligerents has sprung up from a succession of 
 ineffectual protest, ineffectual resistance, and in- 
 effectual acquiescence. And so it is that Br. 
 Wheaton,"^* after a very short paragraph upon 
 tlie general principle of the belligerent's right to 
 seize enemy's goods on neutral bottoms, proceeds, 
 with something like a sensation of relief, to 
 observe that, however that may be, usage and 
 custom have settled that right beyond dispute. 
 To that statement I give an unqualified assent; 
 but I say that usage and custom have not 
 sanctioned the seizure of individual subjects of 
 a belligerent; that what they have sanctioned 
 is the treating the conveyance of any portion 
 of the aiilitary or naval forces of the enemy ii 
 and for his actual service, as a direct act of par- 
 
 * Int. Law, 504. 
 
 ii!u' 
 
THE llIGinVAY OF THE 8KAS. 
 
 ;)0 
 
 
 ticipation in hostility, and, because sneh, as 
 contraband, and entailing as a necessary con- 
 sequence the confiscation of the vessel and cargo ; 
 and that the true explanation of this is to be 
 derived from the consideration that the seizure, 
 as well of goods as of men on board a neutral 
 vessel, is in its inception a violation of neutral 
 territory in its strictest sense ; that such violation 
 has in the case of goods grown into a right, 
 because it has been necessarily of far more frequent 
 occurrence — is in effect, if I may borrow an illus- 
 tration froi">" another branch of law, in the nature 
 of an easement — a lawful interference, that is, with 
 the full enjoyment by anotlier of that which is 
 his own property ; in no way alteri:^.g the quality 
 of that property, though affecting the measure of 
 its value. 
 
 It must never be forgotten that the exercise of this Treaties 
 right is limited in three ways ; * the vessel search- ncutr.-ii 
 ed must be a neutral private ship ; the vessel search.^ 
 searching, a lawfully commissioned cruiser ; the 
 place of search, the high seas : and it has been well 
 observedf that the treaties, and they are many, which 
 expressly submit neutral merchant ships to search, 
 do not expressly exclude neutral ships of war. 
 
 • Wheaton, Int. Law, 589. The Maria, 1 Rob. 340. 
 f Hautefeuille, Droits de» Nations Neutree, 3, 466. 
 
40 
 
 i l; 
 
 Neutral 
 ship 
 neutral 
 territory 
 for mu- 
 nicipal 
 purposes. 
 
 THE HIGHWAY OF THE SEAS. 
 
 lliis sliowj two thin£»-s: one, that the search 
 of neutral merchant ships was considered ii<- sub- 
 ject to be secured by special stipulation between 
 the contracting parties ; the other, that it was 
 deemed needless to exempt ships of war, inasmuch 
 as no claim of right to search them had ever been 
 as a principle set up : whence it appears, not that 
 ships of war were exempt by a sort of courtesy to 
 the neutral sovereign ; but that merchant ships 
 were made liable by a species of encroachment on 
 neutral rights. It is clear also that in order to 
 justify search, certain conditions of place and 
 character must co-exist ; such limitations all tend 
 to show that there is some absolute and positive 
 privilege or status which is a quality of the vessel 
 searched; and which the co-existence of the re- 
 quired conditions at most suspends, but does not 
 destroy. What is this but the territoriality to 
 which I have above referred ? It is admitted that 
 a private merchant ship is neutral territory for 
 all purposes of the municipal law of the State to 
 which it belongs. " Every merchant vessel," says 
 Wheaton,* " on those (the high seas) was right- 
 fully considered as part of the territory to which 
 it belonged. The entry, therefore, into such ves- 
 sel by a belligerent power, was an act of force, and 
 * Wheaton, Int. Law, 162, cf. 604. 
 
THE HIGHWAY OF THE SEAS. 
 
 41 
 
 was prima facie a wrong, a trespass wliicli could 
 be justified only when ..one for some purpose 
 allowed to form a sufficient justification by the 
 law of nations." 
 
 But it is said, when the neutral merchant ship Neutral 
 is within the limits of the territorial jurisdiction witbin 
 of a foreign State, the jurisdiction of the sove- jurisdii- 
 reign of the neutral is wholly excluded* *^*^"' 
 
 In the first place, however, this is a rale by no 
 means universally, or to its full extent, adopted ; 
 and next, were it so, it is insufficient to sustain 
 the view in support of which it is brought forward. 
 It is true that in all relations between the persons 
 on board the neutral ship and the subjects of the 
 foreign State, within the jurisdiction of which that 
 vessel is for the time, the law of the foreign State 
 is paramount. But it is asserted by M. Haute- 
 feuillef as a general principle, and in that asser- 
 tion the maritime jurisprudence of France un- 
 doubtedly supports him, that in every matter, 
 civil or criminal, in which those on board the 
 neutral vessel alone are concerned, the sovereign 
 of the neutral still has the sole jurisdiction ; the 
 laws of the neutral nation are the only laws ob- 
 served or enforced ; a birth or a death happp.ning 
 
 l\ 
 
 * Wheaton, Int. Law, 233. 
 
 t Droits dea Nat. Neut. 2, pp. 5-46. 
 
42 
 
 '\i 
 
 
 }' 
 
 
 Hi 
 
 It 
 
 m 
 
 I, 
 
 f 
 
 I 
 
 \ 
 
 % 
 
 lilE IIKJIIWAV OV Tin: SEAN 
 
 on board, the puni.shmcnt of crimes, or the en- 
 forcement of rer^uhations, such events are inva- 
 riably held to be governed by the law of the 
 neutral State ; and this, in the instance of crimes 
 committed by one of the crew or passengers of 
 the neutral ship against another, prevails so com- 
 pletely, and in such a marked degree, that when 
 several vessels of the same nation are together 
 within the jurisdiction of a foreign power, and a 
 crime is committed on board of one of them, 
 whether ship of war or merchantman, the officer 
 of highest rank in the service of the State, or if 
 there be no ship of war, the consul, and in his 
 absence, even the master of the merchantman, 
 exercises an authority, limited, indeed, it may be, 
 by the laws of his own country, but wholly exclu- 
 sive of the jurisdiction of that power within whose 
 territory he is said to be. 
 
 If this be so, surely in a matter in which the 
 prerogative of sovereignty is so nearly touched, 
 it is the more reasonable course to hold that the 
 neutral ship of war remains thus independent of 
 the foreign State, though wholly within the strictest 
 limits of its ter:.Itorial ji^risdiction, by virtue of a 
 quality inherent in the vessel itself, and not by 
 the mere courtesy of nations, rather thar. to 
 assume that the neutral merchant ship becomes 
 
 '^ 
 
Tin: iiKjiiiWAV or the si:as. 
 
 k'l 
 
 in all icBpects subject to the foreign jurisclietion 
 from the moment of entering foreign waters, and 
 to deduce, as a necessary conscfiuenee from that 
 assumption, that ships cannot have territoriality 
 predicated of them : and if, by way of crucial 
 experiment, the case be put of a subject of the 
 foreign State taking refuge on board a neutral 
 ship in a foreign port, the simple answer is 
 that by his coming on board, a relation between 
 the ship and the shore is at once established ; 
 and that, therefore, this instance forms no ex- 
 ception and is not in point. While to the 
 argument, founded on the principle of a very 
 important decision * in the American courts, 
 that all exemption from territorial jurisdiction 
 is derived from the consent of the foreign sove- 
 reign, which consent in the ease of ships of 
 war is to be implied, it may be replied that such 
 consent is required to be implied for the mere 
 purpose of entering the territorial limits of the 
 foreign state, and that to assume that such implied 
 consent draws with it the implied condition that 
 the consenting state shall have jurisdiction over 
 the entering vessel if it be a merchant ship, but 
 not if it be a man-of-war, is really to beg the 
 whole question upon a very complicated hypothesis. 
 * Schooner Exchange v. McFadder, 7 Cranch, 117. 
 
 ii 
 
41. 
 
 THE IITfJIIWAY OF THE SEAS. 
 
 V 
 
 li 
 
 i' 
 
 r: ' 
 
 I 
 
 (' 
 
 Neutral But for the sake of argument let it be granted 
 
 Hliip on 
 
 bi^'ll Hoas. tiiat the juri.sdietion of tlie foreign power over the 
 
 neutral within its own territorial limits is eomplete 
 for .all purposes, what would this show but that the 
 territorial quality of the neutral ship ceases in the 
 presence, so to speak, of a more potent territoriality 
 of the State, Avithin the actual territorial limits of 
 which it is stationed for the time ? When, however, 
 the neutral is on the high seas, where no sovereign 
 ha? jurisdiction save that exercised by each over 
 his own vessels, a familiar maxim would seem to 
 be applicable, that, when the reason ceases, the rule 
 ceases too, and the neutral resumes the territo- 
 riality which had been suspended : otherwise this 
 anOixialy among others would foHow, that, a sove- 
 reign jurisdiction being essentially co-extensive 
 with the territorial limits of the sovereignty, and no 
 part of the ocean being within the jurisdiction or 
 sovereignty of any, all vessels sail lawlessly upon 
 the high seas, assuming territoriality only within 
 three miles of land, and changing it with each new 
 country visited ; and that merchant ship's papers, 
 and cruiser's commissions are alike equally super- 
 fluous and invalid. 
 
 From the above consideration it appears that the 
 seizure, whether of goods or men, upon a neutral 
 «hip in the exercise of the belligerent's right of 
 
 % 
 
 ':^M. 
 
Tin: nirniwAY of the seas. 
 
 4") 
 
 scarcli is in its inception a direct violation of 
 neutral territory, allowable only where the sanction 
 of continued usage has grafted it hy way of excep- 
 tion upon the general principle pervading inter- 
 national law. The exception I admit has become a 
 large one ; so large, that as I have before observed, 
 even Great Britain has at last, by tlie treaty of 
 Paris, l<sr>r), consented to waive it in favour of the 
 protection of the flag extending to all it covers, 
 enemy's goods as well as neutral; but this does 
 but afford another reason for denying the existence 
 of a further exception extending to the persons of 
 enemy's subjects, until it be established as incon- 
 testably as that of seizing enemy's goods has been. 
 And I may further observe on the autiiority of 
 M. Ilautefeuille, from whose most valuable work TioatioB 
 on the rights of neutral :,ations I freely confess passengers 
 myself to have derived much material, both for military, 
 illustration and for argument upon this portion of ^'^'^" ^^"^ 
 the question, that every treaty* which adopts the 
 principle of '^ free ship free goods," contains also a 
 clause exempting passengers from being seized, 
 unless soldiers or sailors (" gens de guerre,") actu- 
 ally in the enemy's service ; this clause, that 
 author goes on to say, does not occur under the 
 head of contraband of war, but under that which 
 * Droits dcs Nat. N. % 459, n. 2. 
 
 seizure. 
 
40 
 
 THE HIGHWAY OF THE SEAS. 
 
 ^';! 
 
 I 
 
 recognises (" consacre") the rights of the neutral 
 flag. And its effect is clearly this, — not, as might 
 be argued by one who applies to the interpretation 
 of treaties the severe rules of strict legal formulae, 
 to show that, but for this clause, private persons 
 might be seized on neutral ships, — but that, when 
 tliat principle is adopted, the belligerent will be 
 content merely to remove persons in the military 
 or naval service of the enemy, whose presence, 
 but for this, would render the whole ship liable to 
 confiscation. 
 Despatches I have now discussed at the risk, it may be, of 
 mail- prolixity, the character of the persons seized by 
 pac ;er. ^j^^ ^^^^ Jacinto and of the vessel from which they 
 were taken ; and in so doing, have, from the nature 
 of the subject, been led to ascertain what are those 
 principles of international law, wliich afford the 
 rule whereby we may arrive at a correct conclusion 
 upon the merits of the matter in dispute. I have 
 not thought it advisable to incumber these remarks 
 with further comment upon the hypothetical case 
 of there being on board this mail -packet despatches, 
 properly so called, transmitted in the ordinary 
 course of the postal service for delivery. The 
 great inconvenience and injury to the interest of 
 commerce, which would arise from the exercise of 
 a right to visit and search sucli a vessel, to open 
 
 / 
 
/ 
 
 THE HIGHWAY OF THE SEAS. 
 
 the mail bags and examine tlieir contents on mere 
 suspicion, and from tlie leaving it to the discretion 
 of the boarding officer to say what do and what do 
 not amount to " official communications of official 
 persons on the affairs of the Government," * are 
 manifest ; yet far more inconvenient and injurious 
 would be the only alternative to that discretion, 
 were the exercise of such a right permitted, and 
 the vessel had in every case to be taken to the 
 nearest port for adjudication. But I have before 
 sufficiently protested against tliis question being 
 treated as being in any sense one of despatches, 
 and to those who desire to carry further their in- 
 vestigation of the privilege of m.ail-packets, I can 
 do no better service, than refer them to the pages 
 of M. Hautefeuille's work for an elaborate and ex- 
 haustive examination of the subject.^!* 
 
 The sole remaining point for consideration is Voyage 
 the effiict of the particular nature of the voyage neutral 
 in this case upon the liability of the persons seized ^^^^ ^' 
 to be so treated. I will here assume the strongest 
 case possible under the circumstances to be con- 
 clusively made out against Messrs. Mason and 
 Slidell; I will suppose it proved that they were 
 agents employed by the Confederate States on a 
 
 * The Caroline, 6 Eob. 465. 
 
 + Droits (les Nat. N. 2, 4(52, cf acq. 
 
48 
 
 «'3ii 
 
 ■'■: I 
 I - 
 
 I: 
 
 ^if 
 
 r 
 
 ! I 
 
 THE HIGHWAY OF THE SEAS. 
 
 higlily important public mission ; but destitute of 
 any special character such as should invjst them 
 with ambassadorial privileges of any kind. I 
 will farther admit, for the sake of strengthening 
 the case against them, that the decisions with 
 reference to despatches govern this so far as 
 making it immaterial whether it be the port from 
 which the vessel starts or that of its destination 
 that is hostile; but after all this I can find no 
 case, no dictum even, where the carrying either of 
 despatches or of soldiers between two neutral 
 ports has been considered an act of contraband ; 
 (and, as I have before shown, it must be that, or it 
 is nothing, to support the exercise of the right of 
 search) or in any way construable into a deviation 
 from the strict impartiality which a neutral is 
 bound to observe towards both belligerents. Sir 
 W. Scott, in one of his celebrated judgments,* 
 referring to the case of the Trende Sostre, in which 
 " the same fact {i.e. that of the legality of convey- 
 ing despatches between the belligerent mother- 
 country and a colony) cp.me incidentally before 
 this court," says, " the question of law was avoided, 
 as was that of contraband, by the circumstance 
 that before the seizure, the Cape of Good Hope, 
 to which port the vessel was going, had ceased to 
 * Atalanta, Rob. 6, 440. 
 
THE HIGHWAY OF THK SEAS. 
 
 41) 
 
 course. 
 
 be a colony of the enemy, and liad become an 
 English settlement." 
 
 That the question of contraband was thereby 
 avoided is the result of one of tlie first elements of 
 the law relating to that subject, namely, that a 
 contraband article must be taken in delicto on a 
 voyage to an enemy's port:* and tlie statement 
 that " the question of law " was tliereby avoided, 
 sliows tiiis at all events, that the learned judge 
 at that time still continued to consider the terminys 
 ad quern a material fact in such a question. 
 
 Aj?- in considering the effect which the nature ^>i»l'n-'^'v 
 r, ., ^ n ^ means ot 
 
 01 tlxo /oyage and of the vessel may have, wlien inter- 
 regarded in conjunction with the character of tJie 
 persons seized, upon the right to seize them, it is 
 important to observe that Sir W. Scott, in the case 
 of the Atalanta, expressly rests his decision upon the 
 mode of communication then prevailing. " How," 
 lie asks, " is the intercourse between the colony 
 and tlie mother country kept up in time of peace ? 
 By ships of war or packets in the service of the 
 State." And from that answer he proceeds to 
 deduce the importance of neutrals abstaining from 
 relieving belligerents from the burden and risk of 
 maintaining this intercourse in time of war. 
 Clearly, principles based on sucli a state of fact? 
 * Wlicr.ton, Tnt. Liti-, o^if^, 
 E 
 
50 
 
 THE HIGHWAY OF THE SEAS. 
 
 il 
 
 ■f ' 
 
 can have no binding force in a case where the 
 neutral has all along been engaged, in time of peace 
 as well as of war, in maintaining that intercourse, 
 as part of the jx'dinary postal service, with which 
 it had charged itself in the general interests of 
 society and commerce. 
 
 Now it may well be that all despatches passing 
 between a mother country and her colonies should 
 be subject to confiscation, and should even render 
 the conveying vessel liable to that penalty, and in 
 all the cases where despatches have been held to 
 be contraband, they have been communications of 
 that nature ; but as is said in the often cited case 
 of the Caroline, "Another distinction arises from 
 the character of the person who is employed in 
 the correspondence. He is not an executive officer 
 of the Government acting simply in the conduct 
 of its own affairs within its own territory, but an 
 ambassador resident in a neutral State, for the 
 purpose of supporting an amicable relation with it." 
 
 It seems strange that these persons are to be 
 considered liable to seizure by virtue of their 
 sustaining the novel part of "an embodiment of 
 despatches," while, had their disembodied oiiginals 
 been sent to them to undergo the preliminary 
 process of assimilation, these would have been 
 secure upon their passage. 
 
THE HIGHWAY OF THE SEAS. 
 
 51 
 
 It may be said that, by admitting the cases of ^^sentiai 
 despatches to apply by analogy, I admit what is port be 
 conclusive against me ; and an argument, which when deb- 
 I have met with in a recent publication upon this Beized. 
 subject, may be used, to the effect that, inasmuch 
 as it has been determined that the fact of either 
 one of the termini of the voyage being neutral is 
 immaterial, it follows that the fact of both being so 
 makes as little a distinction. "If then," it has 
 been argued, " neither the commencement nor the 
 destined end of a voyage can separately protect 
 against detention, it would be hard to show that 
 the two combined have that force." I must con- 
 fess that I cannot appreciate the difficulty of 
 showing it. In other language, that process of 
 reasoning amounts to this : that because either one 
 of two causes taken separately does not produce 
 a certain result, therefore both taken together 
 cannot. It may be true that they do not, but the 
 logical sequence is at least not evident. 
 
 In support, however, of the view that despatches 
 conveyed in a neutral ship are not protected when 
 both ports are neutral, the case of the Rapid* has 
 been cited, and the argument to which I have 
 above alluded is clenched by a sentence from the 
 judgment of Lord Stowell in that case, where, 
 
 " Edwards, Rep. 228. 
 E 2 
 

 
 
 
 1 
 
 Tin: iiir.nwAY of tiik .si:as. 
 
 s|;vjuking- of the caution with whicli the master 
 Hhoiild receive public despatches, aft.r rcirarkiug 
 on the case of the letters being brought to him in 
 a hostile port, ad^'^^-ssed to residents in a hostile 
 country, he says ; On the other hand, when the 
 commencement of the voyage is in a neutral 
 country, and it is to terminate at a neutral port, 
 or, as in this instance, at a port to which, though 
 not neutral, an open trade is allowed, in such 
 a case there is less to excite his vigilance, and 
 therefore it nuiy be proper to make some allowance 
 for any imposition which may be practised on 
 him." Now the despatches in that case were 
 " papers from a person who seemed to be invested 
 with something of a public character," an agent of 
 a belligerent resident in a neutral country, and 
 were sent thence by him to a belligerent minister 
 in the belligerent country, under cover of a commu- 
 nication to a commercial house at the open hostile 
 port: and it further appears from the report to 
 have been a matter of doubt in the first instance 
 whether the alleged destination was not, in fact, 
 a colourable one, to conceal the design of making 
 for a hostile port which was blockaded at the time. 
 And because the Court thus considered that 
 although the ship was not forfeited, still the captain 
 had himself to thank for the inconvenience of de- 
 
v m 
 
 THE HIGHWAY OF THE SEA8. 
 
 tention, and the expense of legal proceedings, the 
 iTifercnce is to be drawn that the despatches in 
 the case put might be lawfully seized and retained 
 by the captors ! I cannot think that so important 
 a principle as that contended for can be considered 
 to be established by so purely incidental a remark 
 as that in the text, and, at all events, I am entitled 
 to assume that the remark was made with refer- 
 ence to the circumstances of the particular case. 
 It is not upon such dicta that the great system 
 of international law has been erected, nor by 
 such will the general principles on which it rests 
 be shaken. 
 
 But indeed all the cases of despatches have been 
 cases of communications passing between the bel- 
 ligerent Government and its officer, not from a 
 belligerent to a nearrai State, as this case, 
 assuming it to be one of mere despatches, un- 
 doubtedly was. " The true criterion* will be. Is it 
 on the public business of the State and passing 
 between public persons fijr tlie public service?" 
 And when, as here, all these conditions are not 
 fulfilled, the rule of those cases has no appli- 
 cation. 
 
 I have now arrived at a point where it becomes The 
 necessary to notice the case of the Ilendric andauTAlida. 
 The Caroline, 6 Rob. 4(Jo. 
 
 0»> 
 
 w 
 
 11 
 
r^.i 
 
 r'l 
 
 I 
 
 ^ 
 
 ) If 
 
 
 54 
 
 THE lliailWAY OF THE SEAS. 
 
 Altda,* which has been recently made familiar to 
 the public through the columns of the daily 
 journals. It was a case of a Dutch ship at the 
 time of our first American war, 1777, sailing from 
 Amsterdam to St. Eustatia, a Dutch settlement, 
 laden with powder and guns, and five military 
 officers, going avowedly to serve in the provincial 
 army and holding commissions from a rebel com- 
 missioner. It was argued in that case that the 
 destination of the ship was merely colourable, and 
 that she was really destined for New England, i 
 hostile quarter. And upon that point, Sir G. 
 Hay, in his judgment, says, "If it was clear that 
 she were going to New England, touching at St. 
 Eustatia, that would never do. All ships 'rading 
 there are confiscable." It must be inferred that 
 New England was then blockaded ; but if it were 
 not so, the remark is in-esistible that a judge who 
 lays down a rule so eminently opposed to the 
 interest of neutrals as that contained in the last 
 sentence, would not have given them the benefit 
 of the doubt upon tlie other point, if any had 
 existed in his mind. The judgment then continues ; 
 '* It would be too high for any such court as this 
 to assert that the Dutch may not carry in their 
 own ships, to their own colonies and settlements, 
 Marriott's Adm. Decisions, 139. 
 
 
f 
 
 THE HIGHWAY OF THE SEAS. 
 
 everything they please, whether arms or ammu- 
 nition, or any other species of mercliandise, pro- 
 vided they did it with the permission of their own 
 laws, and if they act contrary to them I am no 
 judge of the laws of Holland." It appears from 
 •)ther sources that the persons of the officers were 
 not detained as prisoners of war. 
 
 I have abstained hitherto from citing this, lest 
 I might appear, by relying overmuch upon it, to 
 entertain or sanction the thought that this impor- 
 tant question could be set at rest for ever by an 
 appeal to the authority of one isolated judgment 
 of a British tribunal, pronounced nearly a century 
 ago, however parallel the circumstances and how- 
 ever unimpeachable the decision. On the other 
 hand, I am equally far from wishing to undervalue 
 the bearing of that case, as showing that so long 
 ago as the year 1777, the mere fact of its not 
 being clear that the voyage was not to a neutral 
 port, was, in the opinion of the judge who then 
 presided in the Court of Admiralty, a sufficient 
 ground for him to hold, against the interests of his 
 own-— the belligerent— country, that the vessel 
 conveying arms and ammunition, and persons 
 acknowledged to hold commissions from the enemy, 
 —and that enemy a rebel province, — was not, in 
 doing so, guilty of a violation of the duties of its 
 
 55 
 
 m 
 
56 
 
 r 
 
 THK IIKIHWAY OF THE Sl.AS. 
 
 neutrality. The case, I must observe, is not very 
 satisfactorily reported, and far more room is 
 accorded to the somewhat declamatory arguments 
 of counsel, than to the judgment of the Court. 
 ]^e that as it may, I am content, having, as I hope, 
 sufficiently in the preceding pages established 
 without its aid the propriety of the principle there 
 recognized, to use it for the purpose of justifying 
 the arguments which I have adduced, and for 
 which I could not devise a more appropriate 
 conclusion. 
 
 If I shall have succeeded in assuring my readers 
 that the universal feeling of alarm and indignation 
 which the " affair of the Trent^^ has excited, has 
 not been unfounded or exaggerated, my purpose 
 will have been accomplished. The importance of 
 the case is no less than this; that this country 
 cannot pass it over, or rest satisfied with anything 
 short of the most ample redress, without forming 
 a precedent fatal to the supremacy of that system 
 of law by which nations have bound themselves, 
 fatal also to the character of this country, as the 
 protector of all those who are entitled by law to 
 the asylum of her flag. 
 
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