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THE SEIZURE

OF THE

SOUTHERN COMMISSIONERS,

CONSIDEREI» WtTlf RKKEUENCK TO

INTERNATIONAL LAW,

AND

TO TIIR QUESTION OF

WAR OR PEACE.

PHILIP ANSTIE SMITH, M.A.,LL.B.,

BARRISTER-AT-LAW.

LONDON :

JAMES lilDGWAY, 169, PICCADILLY.

1862.

A large part of this pamphlet had been printed
before the writer was aware of the publication of
others on the same occasion, by authors who
have evidently studied the subject with care, and
discussed it with ability. But, while some leading
cases and topics have been mentioned in every instance,
independent inquiries cannot but vary in some parts of
their paths, and the merits of the question are not
likely to receive too careful or full consideration.
This contribution to the discussion is therefore left to
take its place among others, if it shall be thought to
deserve it.

THE SEIZURE

OF THE

SOUTHEEN COMIISSIONERS,

CONSIDERED WITH REFERENCE TO

Jnt^i|imtwnal 3nw, ^t.

The subject of these pages requires very
few prefatory words, since it has for some
weeks occupied the attention of the country,
and been so frequently mentioned that its
supposed facts have become generally known ;
while the very great importance of its possible
consequences has contributed to awaken
public interest and stamp the particulars
more strongly on the mind. In such
circumstances, the following very concise
statement of the occurrence in questics; will
serve to introduce a discussion of some points
of international law which it involves.

Two Commissioners from the American
Southern Confederacy were passengers on
board a British Mail Steamship. This was
stopped by an armed vessel in the service of
the Federal Government, and the Commis-
sioners were taken from on board as prisoners
by the compulsion of superior force.

Several questions arise out of this trans-
action, which may he classified, as they relate^
on the one hand, to the supposed liahility of
the Commissioners to detention in some
regular mode, or, on the other, to the mode
in which their detention has heen actually
effected. The latter of these topics shall
he noticed first :—

Is, then, the forcible seizure of the Com-
missioners from on board a neutral vessel
defensible by international law ?

The writer is not aware of any decision
relating expressly to the removal of goods
or persons, liable to seizure, from the neutral
ship on which they are found. The difficulty
of finding an instance in point indicates, at
any rate, the infrequency of such occur-
rences.

In the absence of any known judicial
statement of the law relating to such an act,
it may be remarked —

Mrst — That the general rule of maritime
capture requires captured vessels to be taken
into port, in order to a trial of the case be-
fore some competent tribunal. — " Regularly
a captor is bound by the law of his own
country, conforming to the general law of
nations, to bring in for adjudication, in order

that it may be ascertained whether it be
enemy's property, and that mistakes may not
be committed by captors in the eager pursuit
of gain, by which injustice may bo done to
neutral subjects, and national quarrels pro-
duced with the foreign states to which they
belong."* If the captor " neglects to apply
to any tribunal, he would be guilty of a great
misdemeanour," says Sir William Scott in
another case.f And elsewhere the rule is
thus given, with some account of the occa-
sion for it : — " In later times, an additional
formality has been required — that of a sen-
tence of condemnation, in a competent court,
decreeing the capture to have been rightly
made, jure belli ; it not being thought fit, in
civilised society, that property of this sort
should be converted without the sentence
of a competent court, pronouncing it to have
been seized as the property of an enemy, and
to be now become jure belli the property
of the captor. The purposes of justice re-
quire, that such exercises of war should be
placed under public inspection ; and there-
fore the mere deductio infra prcesidia has
not been deemed sufficient."! The authority

* Judgment of Sir W. Scott. The Felicity, 2 Dodson, 385.

t The Huldah, 3 Robinson, 238.

X Sir W. Scott, The Henrick and Maria. 4 Robinson, 55.

]}.

of Chancellor Kent may also be cited : —
** When a prize is taken at sea, it must be
brought, with due care, into some convenie. '
port, for adjudication by a competent court,
though, strictly speaking, as between the
belligerent parties, the title passes, and is
vested when the capture is complete ; and
that was formerly held to be complete and
perfect when the battle was over, and the
spes recuperandi was gone."*

The rule above mentioned has, indeed, ex-
ceptions ; for " if a king*s ship, bound on the
public service, makes a capture in her course,
such a vessel cannot depart from her instruc-
tions, but must proceed upon her original des-
tination. That would be a case of necessity,
arising out of the public service, for which
states must make allowance reciprocally.***!'
And if a man-of-war belonging to a belli-
gerent government be by very urgent occa-
sions of the public service prevented from
bringing a captured vessel to any port what-
ever for adjudication, then, if the vessel
taken be hostile, it is said that she may
lawfully be destroyed. But in connexion
with this statement the peculiar rights of

♦ Rentes Coiuraeiitarics, Vol. 1, 101.

t Sic W. bcott, Tlie Anna. 5 Robinson, 385.

ii.

neutral, as distinguishod from hostile, ships
arc strongly expressed. " If impossible to
bring in, their next duty is to destroy
enemy's property. Where doubtful whether
enemy's property, and impossible to bring in,
no such obliiration arises, and the safe and
proper course is to dismiss. Where it is
neutral, the act of destruction cannot be
justified to the neutral owner, by the gravest
importance of such an act to the public
service of the captor's own state ; to the
neutral it can only be justified, under any
such circumstances, by a full restitution in
value. These are rules so clear in principle
and established in practice, that they require
neither reasoning nor precedent to illustrate
or support them."* The general duty, in
cases of maritime capture, to bring in for
adjudication, has been discussed in some of
the previous remarks in connection origi-
nally with cases where the vessels captured
have been hostile, jind those remarks are,
therefore, not addrefiseJ to the specific case
of captures consequent on the right of search
of neutral vessels. But—

Secondljj —In the mention made by some
writers on international law of the right of

* Sir W. Scott, The Felicity. 1 Doclson, 386.

search itsolf, the duty of bringing in for ad-
judication is noticed. The authority of
Chancellor Kent and of Mr, Wheaton shall
be cited here. The former says that —
" If, upon making the search, the vessel be
found employed in contraband trade, or in
carrying enemy's property, or troops, or des-
patches, she is liable to be taken and brought
in for adjudication before a prize court."*
The latter has the following words : —
" If the seizure were made in time of war,
the adjudication must necessarily take place,
according to the well known law and usage
of nations, in the prize court of the country
of the captor, who is responsible to his own
government, whose commission he bears, for
bis acts under that commission ; and that
government again is responsible over to
the neutral state, whose subjects may com-
plain of the injury by them sustained.^f At
another place there is the following passage :
" If a vessel sailing under the neutral flag
is boarded and examined by a belligerent
armed and commissioned cruiser, and the
result of the examination establishes her

* Kent's Com., Vol. 1, 153.

t Wheaton's Enquiry into the validity of the British claim
to a right of visitation and search of American vessels suspected
to be engaged in the African Slave Trade, p. 138 (Ed. 1858).

•neutrality in the judgment of the hoarding
officer, or his superior commander, she is of
coqirse released, and suffered to pursue her
voyage. But if, on the other hand, their
prima facie judgment he, that the ship or
<cargo is in reality enemy's property, or that
the latter is contrahand of war, or that the
proprietor or master have been guilty of
some unneutral act, hy which the property
ds rendered liable to confiscation, the vessel
is, of course, ■detained, and sent in for trial
in tbe competent prize court of the captor's
country.*** A little after, he says, " We
repeat, if the seizure had been made in time
of war, the captured vessel must be carried
into port for adjudication before the compe-
tent prize court of the captor*s country .'*f

It may be objected that, in the whole of
the arguments founded on the authorities
before cited, it has been tacitly assumed that
no judicial investigation before a proper
tribunal will really take place. That the
fact of the removal of the Commissioners

* lb., pp. 155-6.

t Wheaton'fl Enquiry, p. 156. It is fair to mention, in reference
to these passages, that they occur in a very able ex parte argu-
ment ; and that the author would be naturally disposed, with
reference to it, to enforce the view contained in those passages.
Still they come stamped with the authority belonging to Mr.
Wheaton's knowledge of the subject.

t ,'

from the Trent is no proof that regular pro-
ceedings, with a view to adjudication, will
not be instituted, and that, perhaps, they
may have been already instituted.

In reply, it may be said, first and chiefly,
that at present there is not proof or indication
that this has been, or will be, done. And it
may be said further, that a proper degree of
promptitude is required in taking such steps.*
It may be added that the course pursued in
this instance is objectionable, as removing
the evidence of the other persons on board
the Trent. An inquiry, in order to be of
use, should be one in which all necessary
witnesses might be forthcoming. If it be
answered that there is no substantial doubt
as to the official character of the Commis-
sioners, even this (if the fact were assumed
to be so), though it might affect materially
the importance of evidence, would not make
a judicial inquiry unnecessary; for, as will
be seen, the international law on the subject
turns in great part on the inferences to be
drawn from that official character, and is of
a kind not to be determined by naval officers.

The very nature of the right of search
requires particular correctness in its exercise.

* The " Zee Star," 4 Rob,, 7 1 . The " Madonna del Burso, ib. 171."

l»

The right itself is well established, and
resistance to it would, be unlawful ;* but it
is " a right of force, though of lawful force,*'
and therefore one in which the rules direct-
ing it should not be open to arbitrary exten-
sion or variation. It may be supposed (and
it may be the fact) that the owners of the
neutral vessel have really suffered less in-
convenience and loss than if the vessel, as
well as the Commissioners, had been taken
into port for regular examination of the
seizure; but this would not establish the
correctness of the course which was pursued,
or justify it if incorrect.

Thus, then, it appears that the general
rule with respect to maritime captures,
requires that ships, when taken, should be
brought to some port, and that the lawful-
ness of the seizure should be established
before a competent tribunal ; and this rule
is expressly mentioned as applicable to cap-
tures consequent on search of neutral vessels.
If there is no express prohibition of the
removal from a neutral ship of persons
claimed as liable to seizure, neither is there,
to the writer's knowledge, any instance where
the act has been judicially sanctioned, or

* See especially the case of " The Maria," 1 Rob., 340.

even where it has heen macfe the suibject of
a trial. And the right of search, being a
right of some hardship (though of necessary
hardship) towards neutrals, is one whiich
should not be arbitrarily modified in it»
exercise. In the present instance, it does not
appear that any legal proceedings have been
instituted ; and such a seizuve,^if aUowed^to
stand on the mere strength of the origkial
capture, would tend to constitute n&val
officers judges of international rights^ and to
expose unarmed yessels to risks and injuries,
the seribus importance of which scarcely
needs comment.

The questions considered hit^herto relate
to the manner in which the arrest and
detention of the commissioners have been
effected. But, if all exceptions to irregu*
Ibrity of procedure be laid aside, what are
the doctrines of international law as to the
further question of UabiUty to seizure f

Were the Commissioners, in a neutral
ship, liable to arrest and detention' at all f

According to the English decisions^ per^
sons connected iasome way with the military
or naval service of the enemy appear to^ be
the only persons so liable. And incidental
references in an account given by Mr.

Wheaton of the judgment in an American
case (with which no other case, so far as the
writer knows, is in conflict) confirm this
view. "It was," he says, "stated in the
judgment of the court, that it had heen
solemnly adjudged in the British prize
courts, that heing engaged in the transport
service of the enemy, or in the conveyance
of military persons in his employment, or
the carrying of despatches, are acts of hos-
tility, which subject the property to confisca-
tion. ♦ #*♦♦#♦♦ The principle of
these determinations was asserted to be, that
the party must be deemed to place himself
in the service of the enemy state, and to
assist in the warding off the pressure of the
war, or in favouring its offensive projects."*
In one important case before Sir William
Scott, he states that the principle " that the
carrying military persons to the colony of an
enemy, who are there to take on them the
exercise of their military functions, will lead
to condemnation,"! was that on which he
determined the case. The same judgment
contains, in an earlier part, a passage which,

* Reference to the case of '* The Commercen," in Wlieaton's
Elements of International Law, VoL II., p. 221. (Ed. 183G.)
t « The Orozembo," 6 Rob., 436.

at first sight, may seem tu have a contrary
tendency, as throwing out an opinion that
even the act of carrying persons in the civil
service of the government might, in the cir-
cumstances of that instance, have occasioned
the forfeiture of the vessel ; yet, on exami-
nation, it will be seen that the relation of the
transport of such persons to the conduct of
the war is intimated, for the vessel is spoken
of as let out for a purpose " intimately con-
nected with the hostile operations.*' And
the learned judge afterwards states the de-
cision of the case before him to rest on the
principle mentioned in the extract already
given. The passage relating to the civil
servants of the enemy runs thus : — " In this
instance the 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. Whether the
principle would apply to them alone, I do
not feel it necessary to determine. I am not
aware of any case in which that question has
been agitated; but it appears to me, on
principle, to be but reasonable that, when-
ever it is of sufficient importance to the
enemy, that such persons should be sent out
on the public service, at the public expense,

it should aflford equal ground of forfeiture
against the vessel, that may he let out for a
purpose so intimately connected with the
hostile operations."* It will he seen that
these civil servants were to he engaged in
the government of a colony of the enemy,
and this formed one element in the case.
Lord Stowell's remarks, on another occasion
throw light on the theory which he expresses
here, that persons so occupied may he
considered as connected with the war itself.
" It is the right of the belligerent to inter-
cept and cut off all communication between
the enemy and his settlements, and, to the
utmost of his power, to harrass and disturb
this connexion, which it is one of the de-
clared objects of the ambition of the enemy
to preserve."! "The former cases were cases
of neutral ships, carrying the enemy's dis-
patches, from his colonies to the mother
country. In all such cases you have a right
to conclude, that the effect of those des-
patches is hostile to yourself, because they
must relate to the securitv of the enemv's
possessions, and to the maintenance of a
communication between them ; you have a

* Sir W. Scott. " The Orozerabo." 6 Rob., 434.
t Sir W. Scott. The " Caroline." 6 Rob., 466.

right to destroy these possessions and that
communication ; and it is a legal act of
hostility so to do.*'*

Thus, then, it does not appear that any
of the enemy's subjects, except those belong-
ing or attached in some manner to the mili-
tary or naval service, have been judicially
held liable to seizure. And in the instance
above mentioned, in which Sir William
Scott expressed an opinion that particular
individuals, although not so belonging or
attached, might have been considered liable,
they were persons who were going out to be
employed in the civil government of an
enemy's colony. Those among the enemy's
subjects who do not belong to either class,
and cannot fairly be brought within the
compass of Sir William Scott's reasoning in
relation to either, are exempt as well from the
force of his opinion above stated as from the
greater authority of the adjudged cases.

Thus far the argument has been negative
— that no liability, according to interna-
tional law, was shown to exist. And at that
point the matter might be left; for if a
person who is taking a passage in a neutral
ship does not sustain any character which
renders him liable to detention, it is not

♦ lb., 466.

. necessary to go further and show that a
character which he does sustain carries with
it any special reason for his immunity.

But something may ho urged on this
ground also; for, on the assumption that
the Commissioners were entrusted with
the task of attempting to institute diplo-
matic relations hetween the Southern Con-
federacy and any of the neutral Sovereign
States in Europe, some parts, at all events*
of the judgment in the case of the Caroline
may he applied to this transaction. The
despatches referred to in that judgment are
said to be "despatches from persons who
are, in a peculiar manner, the favourite
objects of the protection of the law of
nations, Ernhassadors, resident in a neutral
country, for the purpose of preserving the
relations of amity between that state and
his own government.

" On these grounds a very material distinc-
tion arises, with respect to the right of fur-
nishing the conveyance. The former cases
were cases of neutral ships, carrying the
enemy's despatches, from his colonies to the
mother country. *****
But the neutral country has a right to pre-
serve its relations with the enemy, and you

111

"are not at liberty to conclude, that any com-
munication between them can partake, in
any degree, of the nature of hostility against
you. The enemy may have his hostile pro-
jects 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 doubt-
ful foundation, that is matter for the caution
of the Government, to be counteracted bv
just measures of preventive policy, but is no
ground, on which this court can pronounce,
that the neutral carrier has violated his duty
by bearing dispatches, which, as far as he
can know, may be presumed to be of an
innocent nature, and in the maintenance of
a pacific connection. One material ground,
therefore, is wanting, on which the judgment
of the court proceeded in the former cases.
Another distinction arises, from the character
of the person, who is employed in the cor-
respondence. He is not an executive officer
of the Government, acting simply in the
conduct of its own affairs within its own

** territories, but an Embassador resident in
a neutral state, for the purpose of supporting
an amicable relation with it.

" I have before said that persons discharg-
ing the functions of Embassadors are, in a
peculiar manner, objects of the protection
and favour of the law of nations. The limits
that are assigned to the operations of war
against them, bv Vattel and other writers
upon those subjects, are, that you may ex-
ercise 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,

* May he be stopped in any other place than those in
which the state wliich stops liim has full riglits of exercising
hostility If The words of the judgment may raise a doubt, but
the following extract from Vattel favours the latter construc-
tion, " The enemy's men may also be attacked and seized
wherever there is a right of exercising acts of hostility. Thus
a passage may not only be refused to the ministers of an enemy
sent to other sovereigns, but if they undertake to pass privately,
and without permission, into places belonging to their
master's enemy, they are liable to be arrested ; and of this the
last war furnishes a signal instance. An ambasador of France
going to Berlin, by the imprudence of his guides, took his way
through a village within the electorate of Hanover, of which the
sovereign, the king of England, was at war with J'rance ; he
was arrested, and afterwards sent over to England. As liis
Britannic Majesty had herein only made use of the rights of
war, neither the court of B'rancc nor that of Prussia complained
about it."*

* Vattel's Law of Natlous, itook IV., cb. vii., sec. 8A. The passage ia
quoted from an EDglish translation from the French, dated 1793. It ia
tbe only version which the writer has at hand.

" and has taken upon himself the functions of
his office, and has hcen admitted in his re-
presentative character, he becomes a sort of
rniddle-manf entitled to peculiar priviiegcs,
as set apart for the protection of the rela-
tions of amity and peace, in maintaining
which all nations are in some degree inter-
ested. It has been argued that he retains
his national character unmixed, and that
even his residence is considered as a resi-
dence in his own country. But that is a
fiction of law invented for his further pro-
tection 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 disadvan-
tage. Could it be said that he would, on
that principle, be subject to any of the rights
of war in a neutral territory ? Certainly
not. He is there for the purpose of carry-
ing on the communications of peace and
amity, for the interest of his own couiilry
primarily, but, at the same time, ' -■ tiic
furtherance and protection of the interests,
which the neutral country also has in the
continuance of those relations.

" It is to be considered, also with regard to
this question, what niay be due to the conve-
nience of the neutral state ; for its interests
may require that the intercourse of corres-
pond<ince with the enemy*s country should
v.o' be altogether interdicted. It might be
tiic light to amount almost to a declaration,
that an Embassador from the enemy shall
not reside in the neutral state, if he is de-^
Glared to be debarred from the only means
of communicating with his own. For to
what useful purpose can he reside there, with-
out the opportunities of such a communica-
tion ? It is too much to say, that all the
business of the two states shall be trans-
acted by the Minister of the neutral state,
resident in tlie enemy's country. The prac-
tice of nations has allowed to neutral states
the privilege of receiving Ministers from the
belligerent states, and the use and conve-
nience of an immediate negotiation with
them.

" It is said, and truly said, that this excep-
tion may be liable to great abuses, and so,
perhaps, will any rule that can be laid down
on this subject : —

Mille addc catenas ;

Eftugict taincn hacc

R1li Kl

1 1

\f:

I ,

" Opportunities of conveying intelligence
may always exist in some form or other."*

A lengthened extract from this able
judgment has been given, notwithstanding
the distinctions between the circumstances
then before the court and those belonging
to the present case. For although that judg-
ment related to despatches, and to a Minister
received by a neutral government and
clothed with the full privileges of his official
character, yet much of the reasoning is
applicable to a case where no diplomatic re
lations as yet exist. If it is for the advantage
of a neutral country to retain such relations,
it may be for its advantage to commence
them. And that regard to the fair interests
of the neutral country, which is recognized
in the judgment as forming one of the
reasons for the decision, appears to be appli-
cable, though in a less degree, in the other
case also, unless there be something incon-
sistent mth the duties of a neutral state
towards belligerents in commencing^ during
a war, diplomatic negotiations with one of
the contending powers.

This topic is connected with other ques-
tions, which the nature of the present con-

* Sir W. Scott, « The CaroUne." 6 Bob., 466, 7, 8, 9.

flict in America may suggest. Is the
Southern Confederacy entitled, by interna-
tional law, to send ambassadors ? Or, rather,
are neutral sovereign states at liberty to re-
ceive ambassadors from it, without, in so
doing, committing an oflTence against the
Federal government, or violating the duties
which attach to neutrals ?

These questions shall be answered in the
words of Mr. Wheaton's work on Interna-
tional Law. Parts of the extracts relate
rather to internal revolutions than to
the severance of particular provinces ; but
these different cases are treated together in
some of the remarks upon them.

" Until the revolution is consummated,
whilst the civil war involving a contest for
the Government continues, other states may
remain indifferent spectators of the contro-
versy, still continuing to treat the ancient
Government as sovereign, and the Govern-
ment de facto as a society entitled to the
rights of war against its enemy; or may
espouse the cause of the party which they
believe to have justice on its side. In the
first case, the foreign state fulfils all its
obligations under the law of nations ; and
neither party has any right to complain,

"provided it maintains an impartial neu-
trality.*** " If the foreign state professes
neutrality, it is bound to allow impartially to
both belligerent parties the free exercise of
those rights which war gives to public
enemies against c;ich 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.**! " If the revo-
lution in a state be effected by a province or
colony shaking off its sovereignty, so long
as the independence of the new state is not
acknowledged by other powers, it may seem
doubtful, in an international point of view,
whether its sovereignty can be considered as
complete, however it may be regarded by its
own Government and citizens. It has already
been stated, that whilst the contest for the
sovereignty continues, and the civil war
rages, other nations may either remain pas-
sive, allowing to both contending parties all
the rights which war gives to public enemies,

* Wheaton's Elements of International I^w. 6th Ed., p. 32.
t /*., 32.

. 25

** or may acknowledge the independence of
the new state, forming with it treaties of amity
and commerce, or may join in alliance with
one party against the other. In the first
case, neither party has any right to com-
plain so long as other nations maintain an
impartial neutrality, and abide the event of
the contest."* " In the case of a revolution,
civil war, or other contest for the sovereignty,
although, strictly speaking, the nation has
the exclusive right of determining in whom
the legitimate authority of the country
resides, yet foreign states must of necessity
judge for themselves whether they will
recognise the Government de Jdcto, by
sending to, and receiving Embassadors from
it, or whether they will continue their accus-
tomed diplomatic relations with the Prince
whom they choose to regard as the legitimate
sovereign, or suspend altogether these rela-
tions with the nation in question. So also
where an empire is severed by the revolt of
a province or colony declaring and maintain-
ing its independence, foreign states are
governed by expediency in determining
whether they will commence diplomatic
intercourse with the new state, or wait for

lb., 34.

i,\

" it8 recognition by the metropolitan country.
"For the purpose of avoiding the difficulties
which might arise from a formal and positive
decision of these questions, diplomatic agents
are frequently substituted, who are clothed
with the powers, and enjoy the immunities
of ministers, though they are not invested
with the representative character, nor en-
titled to diplomatic honours."*

From what has been said upon this second
branch of the subject, it may be inferred that
persons connected with the military or naval
service of the enemy are alone certainly
liable to seizure in a neutral ship ;f that
civil servants of the enemy, if sent out in the
public service to take part in the govern-
ment of one of its colonies, may possibly be
liable; but that there is not authority to
support the detention of any other of the
enemy's subjects, and that here the case
might be left as complete.

* lb., 275—6.

f Some Inference as to what is usually understood to be the
rule in this matter may be formed from the warning in the
Queen's Proclamation of May 13, 1861, against "carrying
officers, soldiers, despatches, arms, military stores, or materials,
or any article or articles considered and deemed to be contra-
band of war according to the law or modem usage of nations,
for the use or service of either of the said contending parties,

." Why are officers and soldiers only mentioned, if

other persons also are supposed to be liable ?

■, : 27

But further, as has been seeii,there is ground
to contend that persons in the position of the
Southern Commissioners have some claims to
a special immunity, inasmuch as, on the one
hand, the later extracts indicate that foreign
neutral states are at liberty to receive Ambas-
sadors from revolting provinces at war with a
parent state ; and, on the other, in the judg-
ment of Sir William Scott, in the case of The
Caroline^ the freedom from seizure allowed
to the dispatches of an Ambassador is based
in part on the right of a neutral state to
maintain free diplomatic intercourse with a
belligerent. The principle last adverted to
is, at all events, susceptible of some applica-
tion to the case in question.

And here the authority of Lord Stowell
may be again introduced : — " All law is
resolvable into general principles : The cases
which may arise under new combinations of
circumstances, leading to an extended appli-
cation of principles, ancient and recognized,
by just corollaries, may be infinite ; but so
long as the continuity of the original and
established principles is preserved pure and
unbroken, the practice is not new, nor is it
justly chargeable with being an innovation
on the ancient law ; when, in fact, the Court

doea nothing more than apply old principles
to new circumstances.***

There is another point of importance
relating to the liability of the Commissioners
to which it is proper to advert.

It has been assumed that the Federal
Government and the Confederate States occu.
pied (as far as neutrals are concerned) the
ordinary position of Belligerent Powers, and
that the liability of the Commissioners
depended on the law relating to persons
of that class, being subjects of one of such
powers, and holding towards the other the
relation of public enemies.

But the doubt has been sometimes sug-
gested whether they were not rather to be
treated by Great Britain as revolted sub-
jects — in which case the whole aspect of
the matter would be changed. A threefold
reply may be given to this suggestion :
for, Jirst, from the extracts before given
from Mr. Wheaton*s work on International
Law, it may be gathered that, on occasions of
the revolt of provinces, foreign nations are at
liberty to remain passive, allowing to both
contending parties all the rights which war

* Sir W. Scott. The " Atalanta." 6 Robinson, 458.

gives to public enemies ; and that, in that
case, neither party has any right to complain,
so long as the other nations maintain an im-
partial neutrality, and ahide the event of the
contest.* Secondly^ the Queen's proclama-
tion is evidence that Great Britain has taken
such a position, and therefore that she acts
regularly in allowing to both contending
parties all the rights which war gives to
public enemies.f And, thirdly, in this
instance the seizure has been made in the
exercise of the right of search. But the

* One ot these passages has, it is true, a qualifying clause to
the effect that the exercise of the rights of war, " on the part of
the revolting colony or province against the metropolitan
country, maybe modified by theobligation of treaties previously
existing between that country and foreign states." The writer
is not aware, however, that this proviso is applicable to the
present case.

f See the following clauses— "Whereas we are happily at
peace with all sovereigns, powers, and states :

And whereas hostilities have unhappily commenced between
the Government of the United States of America and certain
states styling themselves the Confederate States of America :

And whereas we, being at peace with the government of the
United States, have declared our royal determination to maintain
a strict and impartial neutrality in the contest between the said
contending parties :

We, therefore, have thought fit, by and with the advice of
our Privy Council, to issue this our royal proclamation :

And we do hereby strictly charge and command all our loving
subjects to observe a strict neutrality in and during the afore-
said hostilities, and to abstain from violating or contravening
either the laws and statutes of the realm in this behalf, or the
law of nations in relation thereto, as they will answer to the
contrary at their peril."

right of search rests on the assumption that
a war is subsisting. For " at present,** to
quote the words of Lord Stowell, " under
the law as now generally understood and
practised, no nation can exercise a right of
visitation and search upon the common and
unappropriated parts of the sea, save only on
the belligerent claim. If it be asked why
the right of search does not exist in time of
peace as well as in war, the answer is prompt ;
that it has not the same foundation on which
alone it is tolerated in war — the necessities oi*
self-defence. They introduced it in war, and
practice has established it. No such neces-
sities have introduced it in time of peace,
and no such practice has established it."*

It is by no means to be inferred that,
because Great Britain thus treats the Con-
federate States as belligerents and as entitled
to the privileges which international law
confers on public enemies, she thereby
expresses a judgment as to the lawfulness of
the secession. She abstains from pronounc-

* (Sir W. Scott.) The "Le Louis," 2 Dodson, 245. And
American authority may be cited to the same purpose. " The
duty of self-preservation gives to belligerent nations this right.
It is founded upon necessity, and is strictly and exclusively a
war-right, and does not exist in time of peace." Kent's Comm.,
vol. 1, p. 153.

Ing any judgment upon that point. Havinj^
determined that her own part is to maintain
a strict neutrality, she owes to both parties
the fulfilment of all the duties which a
neutral has to fulfil towards a belligerent ; and
the due and faithful performance of these
duties is consistent with a public opinion
reprobating in the strongest degree what
appears to be evil in either of the contending
parties. The strength, and even the direc-
tion, of this feeling will vary with individual
minds and characters, but its variety and its
contradictions are consistent with a steady
and uniform concession to each party of its
authorized belligerent claims.

Another point which has engaged a good
deal of public attention in reference to this
seizure is the fact that the Trent was bound
from one neutral port to another. Upon
this point, however, it seems proper to notice
some distinctions. As to floods alleged to
he contrabandf the fact of destination to a
neutral port appears to be, by itself, a suffi-
cient answer. Sir William Scott treats such a
destination as one on which ** no question of
contraband could arise ; inasmuch as goods
going to a neutral port cannot come under

tho description of contraband, all goods
going there being equally lawful."*

But, in cases relating to the conveyance
of military persons^ or of despatches, other
principles, already noticed, sometimes claim
attention. Whore neutral ships carry a
belligerent's despatches from his colony to
the mother country, his enemy has, it is
stated, a right to conclude, that the effect of
those despatches is hostile to himself, because
they must relate to the security of the othor
belligerents possessions, and to the main-
tenance of a communication between them ;
and it is a legal act of hostility to destroy
those possessions, and that communication.*
And in the case of such communis lations, the
fact that the voyage of the neutral ship docs
not extend over the whole distance between
the ultimate points of the journey is not an
answer, if the assistance rendered to the
enemy by carrying the despatches part of
the way was conscious and intentional on the
part of the neutral.

Thus in one case of a neutral ship carrying
a packet from a hostile to a neutral port, tho
packet having a further destination to a

*■ The " Imina." 3 Rob., 167.

* The " Caroline." 6 Robinson, 446, ante, p.

hostile possession, the master made an affi-
davit averring his ignorance of the
contents, and the court treated the case as
one of " an offence originating chiefly in the
misconduct or culpable negligence of the
master."* '

In another case of a similar voyage to a
neutral portf there were on board despatches,
and also a military officer of rank. There,
also, the question of ignorance arose, and
the Court remarked on its being " scarcely
credible, that the master could have been
deceived with respect to the character of a
military officer of high rank," so as to be im-
posed upon by the disguise he had pretended
to assume.f

Another case was that of The Rapid
(Edwards, 228), in which the distinction is
expressed that the presumption of innocence is
in favor of the master of a ship passing between
neutral ports, but there is a strong implica-
tion of his liability if he were in fact aware
of what he was carrying. Sir William Scott
said that it was " to be observed, that where
the commencement of the voyage is in a
neutral country, and it is to terminate at a
neutral port .... there is less to

* The Susan. 6 RobuiBon, 461, 2 n. a.
i The Hope. 6 Robinson, 463, n. a.

:: ;;l

111

34 ,

excite the party's vi|^ilance, and, thorofore,
it may bo proper to make some allowance for
any imposition which may be practiced upon
him." •

. It appears, then, that the mere f. .t of a
neutral vessel starting from one neutral port
on a voyage to another port also neutral, is
not conclusive proof oi its freedom from
liability, since, at any rate, its master would
be guilty of an offence against the law of
nations if, on such a voyage, he carried des-
patches of a belligerent on their way between
the mother country and its colony, being
himself a conscious and willing agent in
doing so.
In the present instance, however, there

* A passage from Mr. Wlieaton's work on International Law
may be adduced in conflrniation of the present argument as to
the doctrine of the English Comts. He mentions that, in a case
before the Supreme Court of the United States, it was stated
in the judgment of the Court " that it had been solemnly
adjudged in the British Prize Courts, that being engaged in the
transport service of the enemy, or in the conveyance of military
persons in his employment, or the carrying of despatches, are
acts of hostility which subject the property to confiscation. In
these cases, the fact that the voyage was to a neutral port was not
thought to change the cliaracter of the transaction. The prin-
ciple of these determinations was asserted to be, that the paiiy
must be deemed to place himself in the service of the enemy
state, and to assist in warding off the pressure of the war, or in
favouring its offensive projects." Vol. 2, p. 221. Ed. 1836.
The reference given, as to the American case, is to Wlieaton's
Rep., vol. 1, p. 382. The Commercen.

appears to be nothing corresponding with an
ultimate destination to a colony ; and there
is a case which tends to show that where the
ultimatti destination is not to a hostile port,
a vessel would be free from liability, even if
conveying despatches which might otherwise
occasion its condemnation.

This is the case of the Trende Sostre*
where a vessel was carrying a cargo of
cordage and other things, and also despatches
from a Dutch minister of state to Governor
Jansen, at the Cape of Good Hope. Before
she reached the Cape, that settlement had
surrendered to the British, and thus lost its
character of hostility, and it would seem that
by that fact not only did the goods lose their
nature of contraband, but that the despatch
also no longer endangered the vessel's secu-
rity. For, in his judgment in the Atalanta
(a case relating to despatches), Sir William
Scott is reported as speaking thus : " In the
Trende Sostre, in which the same fact came
incidentally before this court, the question of
law was avoided, as was also that of contra-
band, by the circumstance, that, before the
seizure, the Cape of Good Hope, to which
port the vessel ivas goingy had ceased to be

* (i Kubinsoii, 390, ii. a.

a colony of the enemy, and had hecome an
English settlement."*

Thus it would seem that the destination to
a subject, and hence probably to a neutral,
port, is in some cases an absolute protection
to a neutral ship, even in the case of des-
patches ; and the writer is not aware of any
case in which it has failed to destroy the
liability attendant on carrying them, except
when they had an ulterior destination beyond
the neutral territory.

If a real offence has been committed
against the rights of neutrals, as recognised
by existing International law, what conse-
quent steps should be taken by Great
Britain ?

That Law, associated as it is with the
security and mutual rights of States, is not
to be disregarded ; and it cannot be
maintained in respect, while contempt
is with impunity thrown upon its rules.
But the great weight of such considera-
tons, and of others connected with the
practical administration of government, is
likely to be felt especially by those with
whom the national decisions will rest.

* 6 Kobinsoii, 457.

A sense of their importance is therefore
consistent with the desire to urge rather
some of those reasons which tend to for-
bearance and peace, and which are not less
real, or less entitled to regard, than the
others.

The occasions for enforcing International
Law will vary in their urgency, with the
clearness of the case, and with the wilfulness
of the oflfence. If no explicit orders
were at hand to guide the commander
as a naval officer, it may have seemed
to him less oflPensive to a neutral, to
seize the Commissioners alone, than to
take them and the neutral ship together.
Yet, had he taken the latter course and
brought the ship before an Admiralty court
for trial, the question of costs and damages
remaining to abide the event of the inquiry,
there would have boen no cause of national
quarrel, and the matter might have been well
despatched by such a tribunal. But if even
the conduct of the officer is not necessarily
to be thought a wilful outrage, still less is
this to bo charged on the Federal Govern-
ment, as there appears to be no proper
ground for imputing to it a participation in
the original offence. And if, without their

fault, they have been placed in their present
painful and difficult position, that fact itself
makes a strong appeal on their behalf for the
exercise of all possible forbearance and
conciliation.

The principles of international law itself
sanction and even require this, independently
of the particular fact just noticed. " War
is nat to be resorted to without absolute
necessity, nor unless peace would be more
dangerous, and more miserable than war
itself.*** And " as we approach these awful
confines, we must remember that it is the
bounden and most sacred duty of every state
to exhaust every legal means of redress,
before it has recourse to the dreadful necessity
of war."t And again " ev ery pacific mode of
redress is to be tried faithfully and persever-
ingly, before the nation resorts to arms."t

* Kent's Coram. Vol. L, p. 48.
" Sed quia bellum pacis causa suscipilur, . . ."

Grotius, de Jure Belli ac Tacis, T, 1 .

" The love of peace should equally prevent the beginning of
wviT without necessity, or continuing it when this necessity
ceases." Vattel, book 4, c. 1.

" If war is sometimes lawful, and even necessary, as we have
alreauy shewn, tliis is to Ik; understood when it is undertaken
only for just reasons, and on condition that he who undertakes
it, proposes by that means to obtain a solid and lasting peace."
Burlamaqui, Politic Law, part 4, c. 2 (Nugent's Translation).

t Phillimore's International Law, vol. 3, p. 2.

X I^nt, V, 49.

Statesmen are entitled, and it is a part of
their duty, to consider not only the particular
occasion of a controversy, but its connection
with what preceded and what may follow.
Sometimes, when the rules of public Law may
allow a particular offence to be a just cause
of war, it may be unlikely that this would
prove an efficient method of redress. War,
if successful, may yet be unable to provide
so sure guarantees against the renewal ot an
offence, as might he procured by judicious
negociation. Or, apart from the particular
cause of quarrel, it may be thought, from the
circumstances of the world at the time, that,
if war was resorted to, further and quite
different complications would probably arise,
which, without it, might neverexist. And on a
statesmanlike view of the relative importance
of these considerations, the strict legal rights
of the offended state may be waived, or a less
satisfaction accepted. For national govern-
ments are not bound by the limitations which
restrict the discretion of Admiralty judges.
The rules of these courts mav be broken in
upon " by considerations of comity or of
policy, by which it may be fit that the admin-
istration of this species of law should be
tempered in the hands of those tribunals

ill;

i ;i

which have a right to entertain and apply
them ; for no man can deny that a state
may recede from its extreme rights, and that
its supreme councils are authorised to deter-
mine in what cases it may be fit to do so/**
And considerations of humanity, affecting
other states, have a claim to be regarded,
as well as those which relate to the state
whose rights have been infringed.

International law has been, and should be,
progressive in its character, and it is in those
cases in which agovernment is free to exercise
its discretion, without violating the rights
of others, that the tone of international con-
troversies may most readily be softened and
improved. Where may it be more fairly
hoped that such opportunities will be used
for that purpose, than in a country so power-
ful as Great Britain, and so familiar with
the claims of men everywhere to just and
kindly treatment ?

Modern international law is " the law of
nations, as it is now acknowledged in Christ-
endom."J An appeal to the principles of
hristianity is therefore not out of place in

* Sir W. Scott. Tlie " Maria." 1 Robinson, 368.
X Sir James Mackintosh's Discourse on the Study of the Law
of Nature and Nations, p. 82.

arguments on such a law. But the spirit
of Christianity is one of peace and goodwill,
and states, in proportion as they are influ-
enced by it, will reflect that spirit iu their
political conduct. Much has been said about
national honour as afibcting this case. But
its best title to esteem, is in its power to pro-
tect the peace of the world and to strengthen
the maintenance of justice and right. One
characteristic of great men is a freedom from
a readiness to take ofience. Should not this
also be characteristic of a great nation ?

The circumstances of the pending Ameri-
can contest furnish strong reasons for depre
eating war, and this on grounds of humanity
and consistency. The position of the Federal
Government calls for the candour and indul-
gence of foreign states. Involved at disad-
vantage in a costly and difficult war, it is
placed in a position which tasks, with peculiar
severity, the resources of a republican govern-
ment. On the other hand there has never,
perhaps, been a time when England could
better aff^ord to be forbearing, delivered as
she now is, by God's providence, from war
without and from internal discord, strong in
numbers and wealth and in a spirit of union
and grateful loyalty. Is it not becoming at

such a time to relax something of that rigidity
of rule, which, at another, it might be fit to
maintain ?

But distinct from all this is the subject of
slavery. The motives and conduct of the
North in reference to it are not here in ques-
tion. Whatever these have been, it can
scarcely be doubted that the Southern con-
federates represent the cause of slavery, and
are devoted to its interests, to an extent which
has hardly had a parallel before. Their
triumph would be its triumph, and we cannot
now set limits to the ultimate results which
would follow. This is, indeed, no reason why
England should violate right principles with
a view to resist so great an evil : absolute
neutrality may be her duty. But looking
back on the toils and triumphs of her philan-
thropists in contending with slavery and the
slave trade, on her treasures liberally
expended in that cause, on the negociations
of her diplomatists and statesmen, with the
actual results produced by them, it would,
indeed, be melancholy, that she, of all
nations, should now intervene and, in the
very crisis when the upholders of slavery are
struggling on its behalf as well as their own,
should throw the weight of her counsels.

influence, and arms into the scale ; and by the
effects, though not the purpose, of her action,
establish the ascendency and vigour, and
recruit the resources, of so pernicious a
system. Some real prej udice to our interests
— mu3h more some offence to national
susceptibility, not resulting in more practical
evils — would be wisely borne, if by that
means such a shock to our best traditions
could be escaped. And it would be a
memorable distinction for an English states-
man that he had been the means of delivering
his countrv at once from the evils of war,
and from the calamity of such an unblest
partizauship.

And here, lastly, that event may be men-
tioned, which though not directly connected
with this subject, has occupied the thoughts
of the nation at the same period, and has
turned them in a direction very unlike that
of anger and resentment. Is it unreasonable
to think that the memory of the Prince
Consort may reinforce the esteem for those
blessings of peace which his life contributed
to increase and improve ; as his sudden death
has for a time renewed the recollection that
human power and resources have no inde-
pendent control over events, but are

li^M

:!:lil

subject to the absolute direction of Divine
Providence. If, remembering " that eternal
chain by which the Author of the universe
has bound together the happiness and tho
duty of his creatures," we make the discovery
of what is right our chief object, earthly
vicissitudes need not discourage us, for they
point to better sources of trust than even the
best political sagacity can furDish,