II 
 
THE 
 
 DOMESTIC AND FOREIGN RELATIONS 
 
 or THE 
 
 UNITED STATES 
 
 BY JOEL PARKER. 
 
 CAMBRIDGE: 
 WELCH, BIGELOW, AND COMPANY 
 
 PRINTERS TO THE UNIVERSITY. 
 
 1862. 
 
MEMORANDUM. The substance of the first part of the following Tract was 
 contained in a Lecture delivered to the students in the Law School of Harvard 
 College, by the author, as Royall Professor of Law in that Institution, on the 25th 
 of June, 1861. Subsequent events have led to an enlargement of it, and to its 
 publication in the January number of the North American Review. It is now 
 issued as a separate Article, a single paragraph being omitted because it was little 
 more than a repetition of what was expressed elsewhere, and some Notes being 
 added in an Appendix. 
 
 CAMBRIDGE, January 1, 1862. 
 
THE DOMESTIC AND FOREIGN RELATIONS 
 
 UNITED S TAT E S. 
 
 IT may be stated as a result of our examination of the 
 alleged Right of Secession, that the people of the several 
 States composing the United States, under the Constitution, 
 whether that instrument be regarded as an organic law, or 
 as a compact, form an entire Nation, for the purposes for 
 which they are thus united ; while under their State organiza 
 tions they exercise many powers of sovereignty, of a political 
 and municipal character, some of which are subordinate to the 
 powers of the General government, and others independent of 
 that government because they do not fall within the scope of 
 the purposes for which it was organized, and all " powers not 
 delegated to the United States by the Constitution, nor pro 
 hibited by it to the States, are reserved to the States respec 
 tively, or to the people." 
 
 This nation has, for the accomplishment of the objects of its 
 existence, all the attributes of sovereignty. The Constitution 
 providing that itself shall be the supreme law of the land, and 
 binding upon all the judges of the several States, anything in 
 the constitution or laws of any State to the contrary notwith 
 standing ; requiring all the legislators, and executive and judi 
 cial officers of the United States, and of the several States, to 
 take an oath or affirmation to support it ; and defining what 
 
shall constitute treason against the United States shows that, 
 so far as the objects and purposes of the national government 
 extend, an allegiance is due to that government from all the 
 citizens within its limits, paramount to and exclusive of any 
 allegiance due to the several States ; because the allegiance to 
 the State arises under the State organization and constitution, 
 which, to the extent covered by the Constitution of the United 
 States, are subordinate to the authority of the United States, 
 under that Constitution. There can be, therefore, no right on 
 the part of any State, or of the people of any State, through 
 or by any State authority or action, or by any popular vote, to 
 terminate this allegiance to the United States. 
 
 The Union under the Constitution being perpetual and in 
 dissoluble, it is to be subverted only by the exercise of the 
 right of revolution, for sufficient cause. And this right of rev 
 olution is a personal, and not a State right, and of an imperfect 
 character ; for an attempt at revolution is legally, in its incep 
 tion, and until it is attended with success, neither more nor 
 less than rebellion against the existing government, which of 
 course has at least an equal right to resist the attempt by all 
 the forces at its command. It follows, therefore, that those 
 persons who have been active in the attempted secession of the 
 several States have, as respects the United States, no authority 
 derived from any State organization ; nor any exemption, 
 through the color of any exercise of State authority, from 
 the ordinary consequences which attach to an insurrection or 
 rebellion. No convention of the people of a State could con 
 fer any authority to resist the government of the United States, 
 in the full exercise of its functions, in all of its departments, 
 legislative, executive, and judicial ; and still less could any act 
 of a State legislature give any color of legal authority for 
 such resistance, whether such legislature assumed to act un 
 der the State constitution as it existed before the attempted 
 secession, or under the authority of a convention which, hav 
 ing declared the secession, assumed to confer new legislative 
 
powers, or to adopt a new constitution. All persons who have 
 placed themselves in hostility to the United States by acts of 
 war, are of course responsible personally for those acts, as 
 rebels and traitors. The State which they assume to represent 
 is not responsible, because the State, as a State, did not, and 
 could not, in any mode, give authority to commit acts of rebel 
 lion and treason. There is no war between any State, admit 
 ted into the Union, and the United States ; because the State 
 itself the legal, constitutionally organized State is not in 
 rebellion ; and there is therefore no authority to confiscate the 
 property of any State, as State property, for any such State of 
 fence. The persons who have seized upon the State organiza 
 tion for the purposes of rebellion, and who wield an apparent 
 State authority for such purposes, who have, moreover, cre 
 ated a confederation under this usurpation, and style them 
 selves governors and senators, generals and captains, president 
 and secretaries, are in no manner shielded by their titles or 
 offices from the punishment due to their acts of treason, which 
 are, in fact, in more senses than one, committed on private 
 account. 
 
 This serves to show that the proclamation of President Lin 
 coln, treating the seizure of forts, arsenals, and dock-yards, 
 and the bombardment of Fort Sumter, as acts of insurrection, 
 and requiring those concerned in them to retire peaceably to 
 their respective abodes, was not only in precise accordance 
 with the requisition of the statute of 1795, but was founded 
 upon the only correct legal view of the existing state of things 
 which called it forth. The acts of hostility against the gov 
 ernment had, perhaps, assumed such formidable proportions 
 as to be appropriately designated as war ; but it was a war of 
 persons owing allegiance to the general or national govern 
 ment, and not a war of governments. Those acts were not 
 more than acts of treason because millions were engaged in 
 them, and they were not less than acts of treason because of 
 the assumed titles, military and civil, or of the assumption of 
 
6 
 
 State or Confederate authority, under color of which they were 
 committed. There were millions of people in India engaged 
 in a war against the government of Great Britain, within a 
 short period ; and most of them acted under the orders of per 
 sons who stood to them in the relation of kings and princes, 
 for certain purposes, having recognized authority for such 
 purposes, but who had no authority for the objects and pur 
 poses of such a war ; and they were all, kings, princes, and 
 sepoys, held alike as rebels against the paramount govern 
 ment, their guilt differing only in degree, according to the 
 circumstances of enormity attending it. We do not inquire 
 into the causes of that revolt, when we consider the case in its 
 political and legal aspects in regard to the United States. 
 That is a matter between the persons engaged in it and Great 
 Britain. The government of the United States has nothing to 
 dread from such an inquiry, in the present instance ; but other 
 nations will not enter into that inquiry, and it is foreign to 
 our immediate purpose. 
 
 We perceive, therefore, that the criticism upon the procla 
 mation of the President requiring the rebels to disperse, that 
 it addressed its command in fact to millions, and that it was 
 preposterous to require such large numbers, like an ordinary 
 mob, to retire to their places of abode ; and that other criti 
 cism which assumed that the States were the actors in the war 
 fare which was waged, and that the statute and the proclama 
 tion could not apply, because the States had no abodes to retire 
 to, fail entirely of their intended force. Rebels may form 
 political associations for themselves, and may assume to have a 
 government for which they ask and claim recognition. They 
 may, as between themselves, wield the powers of a State gov 
 ernment, if they can usurp the State authority, and use it as if 
 they were the rightful possessors of it. They may thus have 
 a government de facto, and it may be, as among themselves, 
 de jure also. But all this does not change their legal relations 
 to the government against which they are in arms, until they 
 
have by their power accomplished the purpose of the insurrec 
 tion, by a practical maintenance of their assumed indepen 
 dence. 
 
 We deduce from these premises the conclusion, that, as re 
 gards the United States, there is no right in any organization 
 which these rebels and traitors have constituted whether 
 designated as State or Confederation to enact a law, or to 
 adopt an ordinance, which shall be recognized by the United 
 States as having force or effect as a legal enactment, or as con 
 ferring upon any person power to be used in hostility to the 
 existing government. There can be no lawful confederation 
 of the States involved in the attempted secession, because there 
 has been no secession of those States which is recognized as 
 having any validity. They still remain as component parts of 
 the United States, having doubtless a large loyal population, 
 although the violence of the insurgents has for a time sus 
 pended the due exercise of the authority of the United States, 
 and that of the State also, by a usurpation of the powers of 
 the latter, and an exercise of the semblance of authority under 
 the State organization. As States in the Union, the Constitu 
 tion expressly forbids any confederation among them ; and for 
 that reason also, if there had been no insurrection, and no at 
 tempt to array State authority against the national govern 
 ment, the confederation of the States would be unconstitu 
 tional ; the self-styled Congress of the Confederate States an 
 unauthorized body ; and the so-called President of that con 
 federation, and his cabinet councillors, suitable subjects for 
 the criminal jurisprudence of the United States, on an indict 
 ment for a conspiracy, if their acts of war had not made 
 them liable to the graver penalty attached to treason. 
 
 As a necessary consequence of all this, the proclamation of 
 Mr. Jefferson Davis, calling himself President of the Confed 
 erate States, in which he invited applications for letters of 
 marque and reprisal against the United States, or, in other 
 words, in a legal view, Mr. Davis s advertisement for pro- 
 
8 
 
 posals to rob, under his sanction, such citizens of the United 
 States as might have property afloat, was no better than 
 the advertisement of any other private person ; and the letters 
 of marque and reprisal issued by him as President, and coun 
 tersigned by R. Toombs as if he were a Secretary of State, 
 are, as respects the United States, no better than so much 
 waste paper, for the justification and protection of those who 
 capture property under them. Such persons are amenable 
 to the laws of the United States as pirates, under the act of 
 Congress of 1790, Chapter 9. 
 
 The eighth section of that statute provides that, " if any per 
 son or persons shall commit upon the high seas, or in any 
 river, haven, basin, or bay out of the jurisdiction of any par 
 ticular State, murder or robbery, or any other offence which, 
 if committed within the body of a county, would by the laws 
 
 of the United States be punishable with death ; every 
 
 such offender shall be deemed, taken, and adjudged to be a 
 pirate and felon, and, being thereof convicted, shall suffer 
 death." The ninth section enacts that, " if any citizen shall 
 commit any piracy or robbery aforesaid, or any act of hostility 
 against the United States, or any citizen thereof, upon the 
 high sea, under color of any commission from any foreign 
 prince or state, or on pretence of authority from any person, 
 such offender shall, notwithstanding the pretence of any such 
 authority, be deemed, adjudged, and taken to be a pirate, 
 felon, and robber, and on being thereof convicted shall suffer 
 death." 
 
 The insurgents are not absolved from responsibility under 
 this statute by the fact that their offences were committed in 
 the course of what in other aspects may have the character of 
 war, nor by the fact that they have been taken prisoners in 
 that war. 
 
 Martens admits the right of the conqueror to take the lives 
 of prisoners in three cases : 
 
 "1. When sparing their lives is inconsistent with his own safety; 
 
9 
 
 2. in cases where he has the right to exercise the talio or to make re 
 prisals ; 3. when the crime committed by those who fall into his hands 
 justifies the taking of their lives." Summary of the Law of Nations, 
 Chap. 3, Sect. 4. 
 
 Yattel concedes a right to punish prisoners who have been 
 personally guilty of some crime against the captor. 
 
 " Prisoners may be secured, and, for this purpose, they may be put 
 into confinement, and even fettered if there be reason to apprehend that 
 they will rise upon their captors or make their escape. But they are 
 not to be treated harshly, unless personally guilty of some crime against 
 him who has them in his power. In this case he is at liberty to punish 
 them ; otherwise he should remember that they are men, and unfortu 
 nate." Book III. Chap. 8, Sect. 150. 
 
 It is by no means clear that those who come under the con 
 demnation of this statute of 1790 by acts of force and plun 
 der on board the Confederate privateers, would not be liable 
 to the same condemnation under the rules of public law ; for 
 although a pirate is generally described as hostis humani gene 
 ris, because the buccaneer ordinarily makes war indiscrimi 
 nately upon the vessels of all nations, yet if a band of sea-rob 
 bers should confine their depredations to the commerce of a 
 single nation, it would seem that, as to that nation, their crime 
 might well be regarded as piracy, even if other nations whose 
 commerce was not assailed did not so regard it. 
 
 It may be asked wherein consists the material difference 
 between persons who act iinder a privateer s commission, and 
 capture property on the high seas, and those who wage war 
 upon the land, and commit homicide, and burn, destroy, or 
 capture property there. Why should the former when taken 
 be held and treated as pirates, and the others when captured 
 held and exchanged as prisoners of war ? It is a sufficient 
 answer to this to say, that the war of the privateer is mainly 
 upon the property of private persons, by private parties, for 
 their private emolument. If the privateer attack a public 
 2 
 
10 
 
 vessel, it is the exception, and not the rule ; she is not commis 
 sioned with that view. On the other hand, the war of the 
 land forces is of a more public character, such as fighting bat 
 tles offensive or defensive, assaults upon forts and batteries, 
 and the like, and their interference with private property is 
 usually incidental to those more direct and public operations. 
 The object of the hostilities waged by privateers is mainly gain, 
 by the plunder of commercial vessels ; the injury done to the 
 enemy being only incidental to that object. The object of the 
 military operations upon land is ordinarily the public object 
 of the war, whatever that may be, the injury done to private 
 property being incidental to the measures taken for that pur 
 pose. If, then, the hostilities of the privateer are not regarded 
 as war under lawful authority, they have the character of pri 
 vate acts, to wit, murder and robbery. 
 
 Letters of marque and reprisal were originally granted to 
 merchants who had lost goods by capture, in order that they 
 might indemnify themselves by capture of the property of sub 
 jects of the offending nation. They were, and may still be, 
 used before a war, as a means of procuring justice for a wrong 
 or injury sustained by a nation, its citizens or subjects ; but 
 a resort to this measure presupposes the existence of such 
 wrong or injury. 
 
 " When a nation cannot obtain justice, whether for a wrong or an 
 injury, she has a right to do herself justice. But before she declare 
 war (of which we shall treat in the following Book), there are various 
 methods practised among nations, which remain to be treated of here. 
 Among those methods of obtaining satisfaction has been reckoned what 
 is called the law of retaliation, according to which we make another 
 suffer precisely as much evil as he has done 
 
 " Let us say, then, that a nation may punish another which has done 
 her an injury, as we have shown above (see Chap. IV. and VI. of this 
 Book), if the latter refuses to give a just satisfaction ; but she has not 
 a right to extend the penalty beyond what her own safety requires. 
 Retaliation, which is unjust between private persons, would be much 
 
11 
 
 more so between nations, because it would, in the latter case, be difficult 
 to make the punishment fall on those who had done the injury. What 
 right have you to cut off the nose and ears of the ambassador of a bar 
 barian who had treated your ambassador in that manner ? As to those 
 reprisals in time of war which partake of the nature of retaliation, they 
 are justified on other principles ; and we shall speak of them in their 
 proper place." Vattel, Book II. Chap. XVIII. Sect. 339. 
 
 " Reprisals are used between nation and nation, in order to do them 
 selves justice when they cannot otherwise obtain it. If a nation has 
 taken possession of what belongs to another, if she refuses to pay a 
 debt, to repair an injury, or to give adequate satisfaction for it, the 
 latter may seize something belonging to the former, and apply it to her 
 own advantage till she obtains payment of what is due to her, together 
 with interest and damages, or keep it as a pledge till she has re 
 ceived ample satisfaction." Ibid., Sect. 342. 
 
 " There are cases, however, in which reprisals would be justly con- 
 demnable, even when a declaration of war would not be so ; and these 
 are precisely those cases in which nations may with justice take up 
 arms. When the question which constitutes the ground of a dispute 
 relates, not to an act of violence, or an injury received, but to a con 
 tested right, after an ineffectual endeavor to obtain justice by con 
 ciliatory and pacific measures, it is a declaration of war that ought to 
 follow, and not pretended reprisals, which, in such a case, would only 
 be real acts of hostility, without a declaration of war, and would be 
 contrary to public faith, as well as to the mutual duties of nations." 
 Ibid., Sect. 354. 
 
 " Reprisals by commission, or letters of marque and reprisal, granted 
 to one or more injured subjects, in the name and by the authority of 
 a sovereign, is another mode of redress for some specific injury, which 
 is considered to be compatible with a state of peace, and permitted by 
 the law of nations. The case arises when one nation has committed 
 some direct and palpable injury to another, as by withholding a just 
 debt, or by violence to person or property, and has refused to give any 
 satisfaction." 1 Kent s Oomm. 61. 
 
 The principle stated in these authorities relates to reprisals 
 as a measure of redress before the existence of a war. But 
 
12 
 
 when reprisals are resorted to in time of war, for the purpose 
 of weakening the enemy by depriving his subjects or citizens 
 of their property, the principle that there can be no lawful re 
 prisals until an injury is sustained is equally applicable. 
 
 Wheaton enumerates, " among the various modes of termi 
 nating the differences between nations by forcible means short 
 of actual war," 
 
 4. " By making reprisals upon the persons and things belonging to 
 the offending nation, until a satisfactory reparation is made for the 
 alleged injury." 
 
 He says : 
 
 " Reprisals are also general or special. They are general when a state 
 which has received, or supposes it has received, an injury from another 
 nation, delivers commissions to its officers and subjects to take the per 
 sons and property belonging to the other nation, wherever the same 
 may be found. It is, according to present usage, the first step which 
 is usually taken at the commencement of a public war, and may be con 
 sidered as amounting to a declaration of hostilities, unless satisfaction 
 is made by the offending state. Special reprisals are where letters of 
 marque are granted, in time of peace, to particular individuals who have 
 suffered an injury from the government or subjects of another nation." 
 
 " Reprisals are to be granted only in case of a clear and open denial 
 of justice." Elements of Int. Law, Part IV. Chap. I. Sect. 1, 2. 
 
 It is one of the singular features, however, of this contro 
 versy and warfare, and one of the strange perversions of all 
 ordinary action, that the proposals by Mr. Jefferson Davis to 
 issue "letters of marque and reprisal" were made before any 
 article of property belonging to the Confederate States, or any 
 one of them, or to any person claiming to be a citizen of any 
 one of those States, had been interfered with ; or any person 
 belonging to the Confederate States had been molested by the 
 government of the United States, except in self-defence.* It is 
 true that the United States in the war of 1812, by the same 
 
 * April 17, 1861. 
 
13 
 
 act in which they declared the existence of the war, author 
 ized the President to issue letters of marque and reprisal ; but 
 it must be recollected that they complained of long-continued 
 grievances by reason of the seizure of men and property, the 
 confiscation of property, and the denial of reparation. The 
 cases are not only unlike ; they are entirely dissimilar. The 
 Confederate States can hardly claim to make reprisals because 
 of the passage of a tariff long since repealed, even supposing 
 it to have been onerous ; or the passage of personal-liberty 
 laws by some of the States ; or the refusal of Congress to as 
 sent that slavery should be admitted into the Territories ; or 
 the election of Mr. Lincoln. None of these things were done 
 to, or suffered by, the Confederate States, which were not then 
 in existence as a belligerent power, or in separation from the 
 United States. In the war of the Revolution, the United Col 
 onies did not attempt to authorize the capture of private prop 
 erty until nearly a year after the commencement of hostilities. 
 Not so the Secessionists. There is no doubt that, from the 
 first, even before any vote of secession, this warfare upon pri 
 vate property was relied upon as one of the means of insuring 
 the success of the insurrection. " If you do not let us secede 
 without any attempt at coercion, we will refuse to pay our 
 debts, and, by means of privateers, ruin your commerce." 
 
 From what has been thus stated, we draw a further conclu 
 sion that the recent order of Mr. Judah P. Benjamin, acting 
 Secretary of War for the Confederate States, subjecting Colonels 
 Corcoran, Wood, and Lee, Major Revere, and others, who were 
 taken prisoners by the Confederate forces at the battle of Ball s 
 Bluff, to imprisonment in the dungeons of felons, in retalia 
 tion or reprisal for the imprisonment of persons taken prison 
 ers on board of the Confederate privateers, some of whom have 
 been tried for piracy under the statute of the United States 
 before cited, is a gross violation of the rules of honorable war 
 fare. The Confederates attempt to escape from the odium of 
 treason by alleging the existence of war. They are bound, 
 
14 
 
 then, to conduct the warfare on their part according to the 
 usages of civilized nations. But there is no usage of nations 
 by which one belligerent, having prisoners who have never 
 been amenable to its laws, and have committed no crime 
 against them, but who have been taken in battle fighting un 
 der their own banners, can immure those persons in damp 
 dungeons, and subject them to the treatment of convicts, 
 merely because its belligerent adversary, finding among his 
 prisoners those who according to his laws owe allegiance, and 
 have committed treason, or who in violation of long-existing 
 statutes have incurred the guilt of piracy, proceeds with such 
 persons in the ordinary course of justice according to those 
 laws. If one belligerent merely proceeds according to law, 
 that furnishes no reason why the other should resort to meas 
 ures sanctioned by no law. The law of reprisals, as it affects 
 persons, usually termed retaliation, or lex talionis, may 
 rightfully be resorted to in time of war by one nation, when a 
 gross outrage in violation of the laws of war has been com 
 mitted upon its citizens or subjects by the other, in order to 
 restrain and prevent further outrage. Some of the accredited 
 writers upon public and natural law will, however, hardly sus 
 tain even this proposition. 
 
 Rutherforth expressly denies the right of retaliation by kill 
 ing prisoners, when the enemy has done the same thing : 
 
 " The exceptions to this rule of not killing these persons, who never 
 were in arms at all, or who, though they have been in arms, have sur 
 rendered themselves, are very few. If they are considered as mem 
 bers of the nation with which we are at war, nothing more is necessary, 
 in the first instance, than to get them into our power. The law of na 
 ture, therefore, will not allow us to go further. But if they whom we 
 thus get into our power have been guilty of any previous crime for 
 which they deserve death, this law does not forbid us to inflict this 
 punishment, any more than if they and we were members of no society 
 at all, but were still in the original state of nature. 
 
 " The obstinacy of holding out long in a siege, is not one of these 
 
15 
 
 crimes ; for a discharge of their duty towards their own nation is not 
 in its own nature a crime against the other. There might, perhaps, be 
 some advantage in putting a garrison to the sword for holding out long, 
 as such an example might be a means to deter others from giving the 
 besiegers the same trouble ; but neither this nor any other motive of 
 mere utility will render it just to take away the lives of those who are 
 in our power, and have not deserved to lose them. Neither is retalia 
 tion a justifiable cause for killing prisoners of war. Though our ad 
 versaries should have killed the prisoners whom they have taken from 
 us, this will not justify us in killing the prisoners whom we have taken 
 from them. The law of nature allows of retaliation only where they 
 who have done harm are made to suffer as much harm as they have 
 done. But to kill such prisoners of war as are in our power, because 
 the nation to which they belong has treated our countrymen in this 
 manner, would be to do harm to one person because harm had been 
 done by another. An injury which is done by a nation does, indeed, 
 communicate itself to all the members of that nation ; and such a com 
 munication of guilt is all that can be pleaded for the retaliation of 
 which we have been speaking. But Grotius very truly replies here, 
 that to punish captives or prisoners of war in this manner would be to 
 punish them in what is their own as individuals, whereas the national 
 guilt can only be communicated to them as they are members of the 
 offending nation ; and consequently the proper punishment of it should 
 only be inflicted on them as they are members of the offending nation, 
 and not as they are individuals." Institutes of Natural Law, Book 
 II. Chap. 9, Sect. 15. 
 
 " Prisoners of war are, indeed, sometimes killed ; but this is no 
 otherwise justifiable than as it is made necessary, either by themselves, 
 if they make use of force against those who have taken them, or by 
 others, who make use of force in their behalf, and render it impossible 
 to keep them. And as we may collect from the reason of the thing, so 
 it likewise appears, from common opinion, that nothing but the strong 
 est necessity will justify such an act ; for the civilized and thinking 
 part of mankind will hardly be persuaded not to condemn it till they 
 see the absolute necessity of it." Ibid. 
 
 Martens admits a more extended rule. Under the head of 
 Reprisals, he says : 
 
16 
 
 " A sovereign violates his perfect obligations in violating the natural 
 or perfect rights of another. It matters not whether these rights are 
 innate, or whether they have been acquired by express or tacit cove 
 nant, or otherwise. 
 
 " In case of such violation, the injured sovereign may refuse to fulfil 
 his perfect obligations towards the sovereign by whom he is injured, or 
 towards the subjects of such sovereign. He may also have recourse 
 to more violent means, till he has obliged the offending party to yield 
 him satisfaction, or till he has taken such satisfaction himself, and 
 guarded himself against the like injuries in future. 
 
 " There are many acts by which a sovereign refuses to do or to suf 
 fer what he is perfectly obliged to do or to suffer, or by which he does 
 what he is ordinarily obliged to omit, in order to obtain satisfaction for 
 a real injury sustained. All these acts are called reprisals. Conse 
 quently, reprisals are of many sorts. The talio, by which an injury 
 received is returned by an injury exactly equal to it, is one sort of re 
 prisals ; but the use of it is not indiscriminately permitted on all occa 
 sions." Law of Nations, Book VIII. Chap. 1, Sect. 3. 
 
 In a note he adds : 
 
 " If the ambassador or messenger of a state has been put to death 
 by another state, the former state could not, on that account, have a 
 right to put the ambassador or messenger of the latter to death ; but in 
 time of war, a prisoner of war may sometimes be put to death in order 
 to punish a nation that has violated the laws of war. In the first case, 
 the injured nation has other means of obtaining satisfaction, and of 
 guarding against such violations for the future ; but war being of itself 
 the last state of violence, there often remains no other means of guard 
 ing against future violations on the part of the enemy." 
 
 So Vattel admits the right to execute prisoners in retalia 
 tion for an execution by the hostile general without any just 
 reason, and against an inhuman enemy who frequently com 
 mits enormities. 
 
 " This leads us to speak of a kind of retaliation sometimes practised 
 in war, under the name of reprisals. If the hostile general has, with 
 out any just reason, caused some prisoners to be hanged, we hang an 
 equal number of his people, and of the same rank, notifying to him 
 
17 
 
 that we will continue thus to retaliate, for the purpose of obliging him 
 to observe the laws of war. It is a dreadful extremity thus to con 
 demn a prisoner to atone, by a miserable death, for his general s crime ; 
 and if we had previously promised to spare the life of that prisoner, 
 we cannot, without injustice, make him the subject of our reprisals. 
 Nevertheless, as a prince or his general has a right to sacrifice his ene 
 mies lives to his own safety and that of his men, it appears, that, if 
 he has to do with an inhuman enemy, who frequently commits such 
 enormities, he is authorized to refuse quarter to some of the prisoners 
 he takes, and to treat them as his people have been treated." Book 
 III. Chap. 8, Sect. 142. 
 
 Chancellor Kent sums up the authorities in these words : 
 
 " Cruelty to prisoners, and barbarous destruction of private property, 
 will provoke the enemy to severe retaliation upon the innocent. Re 
 taliation is said by Rutherforth not to be a justifiable cause for putting 
 innocent prisoners or hostages to death ; for no individual is chargeable, 
 by the laws of nations, with the guilt of a personal crime, merely be 
 cause the community of which he is a member is guilty. He is only 
 responsible as a member of the state, in his property, for reparation in 
 damages for the acts of others ; and it is on this principle that, by the 
 law of nations, private property may be taken and appropriated in war. 
 Retaliation, to be just, ought to be confined to the guilty individuals, 
 who may have committed some enormous violation of public law. On 
 this subject of retaliation, Professor Martens is not so strict. While he 
 admits that the life of an innocent man cannot be taken, unless in ex 
 traordinary cases, he declares that cases will sometimes occur, when the 
 established usages of war are violated, and there are no other means, 
 except the influence of retaliation, of restraining the enemy from fur 
 ther excesses. Vattel speaks of retaliation as a sad extremity, and it 
 is frequently threatened without being put in execution, and probably 
 without the intention to do it, and in hopes that fear will operate to 
 restrain the enemy. Instances of resolutions to retaliate on innocent 
 prisoners of war occurred in this country during the Revolutionary 
 war, as well as during the war of 1812 ; but there was no instance in 
 which retaliation beyond the measure of severe confinement took place 
 in respect to prisoners of war." Commentaries, I. 93, 94. 
 3 
 
18 
 
 From the more recent work of Wheaton, we quote to the 
 same effect. 
 
 " A belligerent has, therefore, no right to take away the lives of those 
 subjects of the enemy whom he can subdue by any other means. 
 Those who are actually in arms, and continue to resist, may be lawfully 
 killed ; but the inhabitants of the enemy s country, who are not in 
 arms, or who, being in arms, submit and surrender themselves, may not 
 be slain, because their destruction is not necessary for obtaining the just 
 ends of war. Those ends may be accomplished by making prisoners of 
 those who are taken in arms, or compelling them to give security that 
 they will not bear arms against the victor for a limited period, or dur 
 ing the continuance of the war. The killing of prisoners can only be 
 justifiable in those extreme cases where resistance on their part, or on 
 the part of others who come to their rescue, renders it impossible to 
 keep them. Both reason and general opinion concur in showing, that 
 nothing but the strongest necessity will justify such an act." Interna 
 tional Law, Part IV. Chap. 2, Sect. 2. 
 
 " The exceptions to these general mitigations of the extreme rights 
 of war, considered as a contest of force, all grow out of the same origi 
 nal principle of natural law, which authorizes us to use against an ene 
 my such a degree of violence, and such only, as may be necessary to 
 secure the objects of hostilities. The same general rule, which deter 
 mines how far it is lawful to destroy the persons of enemies, will serve 
 as a guide in judging how far it is lawful to ravage or lay waste their 
 country. If this be necessary, in order to accomplish the just ends of 
 war, it may be lawfully done, but not otherwise. Thus, if the progress 
 of an enemy cannot be stopped, nor our own frontier secured, or if the 
 approaches to a town, intended to be attacked, cannot be made without 
 laying waste the intermediate territory, the extreme case may justify a 
 resort to measures not warranted by the ordinary purposes of war. If 
 modern usage has sanctioned any other exceptions, they will be found 
 in the right of reprisals or vindictive retaliation. The whole interna 
 tional code is founded upon reciprocity. The rules it prescribes are 
 observed by one nation, in confidence that they will be so by others. 
 Where, then, the established usages of war are violated by an enemy, 
 and there are no other means of restraining his excesses, retaliation 
 may justly be resorted to by the suffering nation, in order to compel the 
 
19 
 
 enemy to return to the observance of the law which he has violated." 
 Ibid., Sect. 6. 
 
 It is not astonishing, however, that those who violate all 
 principle by the issue of letters of marque and reprisal when 
 no injury has been done to them, and offer a premium of 
 twenty dollars each for the destruction of persons on board 
 any armed vessel of the United States sunk, burnt, or de 
 stroyed by a privateer of equal or inferior force, should 
 imprison and threaten to hang other innocent persons, with 
 out any trial, merely because their adversary subjects those 
 who accept and act under such commissions to plunder pri 
 vate property, and kill persons on the high seas, to an ordi 
 nary trial by jury for alleged offences committed against the 
 laws of the government whose citizens are thus assailed. 
 
 But although the insurgents stand legally, as to the United 
 States, in the position of rebels and traitors, and their priva- 
 teersmen as pirates, and may be so held and treated, it is not 
 a necessary result that the penalty should be exacted, nor that 
 the warfare which exists should be carried on, in all respects, 
 upon the assumption that the only status which can be assigned 
 to them is that of rebels. An insurrection may, as we have 
 seen, result in what is properly denominated a war, without 
 losing its character as an insurrection, and without any ex 
 emption of those who participate in it from the penalties legally 
 attached to rebellion. Such is the case with all civil wars 
 which originate in an attempt to overthrow the existing gov 
 ernment, or seek a separation from it. But in proportion to 
 the magnitude and gravity of the warfare, it gradually loses, 
 in the public mind, its distinctive character as an insurrection, 
 being known as a civil war ; and then it is hardly expedient to 
 insist upon the enforcement of the extreme penalties of treason 
 and piracy, against those who are merely subordinate and hire 
 ling agencies in wickedness. If such penalties are enforced 
 at all, it should be against the active instigators of, and princi 
 pals in, the rebellion ; but these are the very offenders most 
 likely to escape. 
 
20 
 
 Great Britain, although she imprisoned several of the Colo 
 nists in the course of the war for Independence, and treated 
 them thus far as rebels, did not in any case proceed to the ex 
 treme measure of execution. 
 
 When a rebellion is not immediately suppressed, but as 
 sumes the proportions and character of a war on the side of 
 the insurgents, the parties to that war have necessarily, to a 
 certain extent, the political character of belligerents. The 
 government assailed must employ military forces, and place 
 them in conflict with the military force arrayed against it ; and 
 the ordinary result of such conflict is the capture of prisoners 
 on both sides. In the first stage of such a conflict, it may be 
 just that the government assailed should treat its prisoners 
 according to their legal status as traitors, or pirates, as one of 
 the means of suppressing the insurrection. But when it -is 
 apparent that this means fails of its purpose, and becomes an 
 unnecessary severity, the question immediately arises whether 
 the government is not unjust to the persons whom it holds as 
 captives, and who were mere subordinates in the hostilities 
 which have been waged, if it refuse to extend to them the 
 usual treatment of prisoners of war. And the more signifi 
 cant question follows, to wit, whether it is not guilty of still 
 more gross injustice if it leave its own soldiers, who by misfor 
 tune have fallen into the hands of the other party, to the hard 
 ships of a captivity which it could terminate at any time by an 
 exchange. That government which sends its soldiers into the 
 field with the understanding that, if taken prisoners, they will 
 be left to their fate, without an attempt to redeem them from 
 the hardships and sufferings incident to such captivity, except 
 by the ultimate success of the war, may thereby give them an 
 additional incentive to fight unto death in any hopeless en 
 counter in which they shall happen to be involved ; but when 
 it places itself on such a platform, it shows that it has little 
 care for the comfort or safety of those who fight its battles. 
 Certainly, an administration which should long conduct a war 
 
21 
 
 on that principle would not deserve to have battles fought 
 for it. 
 
 An exchange of prisoners, while it is thus far a recognition, 
 by implication, of a political status of the insurgents as an 
 organized force, implies nothing respecting the legal char 
 acter of that force. An exchange of prisoners may be made 
 with an independent belligerent nation long established ; it 
 may be made with a belligerent barbarian ; and so it may 
 be made with insurgents, or even with those who are strictly 
 pirates. 
 
 It seems clear that, while, on the one hand, the insurgents, 
 by any amount of force which they can muster in the field, in 
 giving to the contest the character of a war, cannot deprive 
 the government assailed of the right to treat them as traitors ; 
 so, on the other hand, government may voluntarily recognize 
 the force arrayed against it as that of a belligerent party, 
 against which it may adopt the modes of warfare usual among 
 nations, as, for instance, a blockade, or with which it may 
 negotiate for the mitigation of the horrors and sufferings of 
 the warfare, as by an exchange of prisoners, without there 
 by depriving itself of the right still to hold the persons en 
 gaged in the insurrection as traitors or pirates, according to 
 the nature and character of their hostile acts. 
 
 Regarding the Secessionists as mere insurgents and traitors, 
 who by means of the insurrection have for the time subverted 
 the legitimate authority of the United States, and deprived 
 that government of the revenue from customs within the lim 
 its of the insurrection, attempting at the same time to ap 
 propriate such revenue to their own use, the government 
 might, by a mere act or order, have closed the ports, as one of 
 the means of suppressing the insurrection, instead of battering 
 down the towns, which would, perhaps, be somewhat more 
 effectual. There seems to be no reasonable doubt that the 
 President who, under his power and duty to suppress the 
 insurrection, might order the latter to be done, if in his judg- 
 
22 
 
 ment the exigency required it might resort to the milder 
 measure of interdicting all commerce there, when it became 
 apparent that such commerce was not, and could not be, car 
 ried on with the United States, and, instead of being benefi 
 cial, was hostile to them. No blockading force is necessary to 
 the validity of such an act or order. Each nation has a right, 
 for its own reasons, to constitute and to abolish ports of entry ; 
 and one of the reasons for abolishing a port might be the ex 
 istence of an insurrection there. And so long as other nations 
 recognize the jurisdiction and authority of the government 
 which abolishes, over the locus in quo, they must respect the 
 act or order which denies entrance there, although it may be 
 a mere paper regulation, without any military or naval force 
 to support it. If, however, the abolishment of the port was in 
 fact an act of hostility for the purpose of inflicting an injury 
 upon another nation, instead of being designed as a municipal 
 or domestic regulation, it might give just cause of offence. 
 
 But an act discontinuing a port of entry, or an order closing 
 such a port and interdicting commerce there, is a very differ 
 ent matter from a blockade of the port. The term " block 
 ade " has its appropriate signification. It means to block up, 
 or shut up, not to subvert or abolish ; nor does it signify 
 the closing of the port, except by the presence of a force for 
 that purpose. A blockade, properly so called, while it may be 
 used to suppress an insurrection, is not a mere measure for 
 that purpose, without other incidents or consequences attached 
 to it. A blockade proper imports the closing of the port of 
 an enemy by a hostile power, thereby forbidding entrance and 
 exit, under certain rules and limitations, and with certain ex 
 ceptions ; and it implies at the same time a right in other 
 nations to enter and clear from the port, under the party in 
 actual possession of it, if the blockade is not made effectual 
 by a competent force. It is not the exercise of a mere mu 
 nicipal or domestic right, like that of closing a port by a re 
 pealing act, or an affirmative order for the purpose ; but it is a 
 
23 
 
 right of war, acknowledged by the law of nations as existing 
 in favor of one belligerent against the other, and regulated by 
 the rules of international law. 
 
 A few extracts from an approved elementary work will be 
 sufficient to show the nature of a blockade. 
 
 " Among the rights of belligerents, there is none more clear and in 
 controvertible, or more just and necessary in the application, than that 
 which gives rise to the law of blockade. Bynkershoek says, it is 
 founded on the principles of natural reason, as well as on the usage of 
 nations ; and Grotius considers the carrying of supplies to a besieged 
 town, or a blockaded port, as an offence exceedingly aggravated and in 
 jurious. They both agree that a neutral may be dealt with severely ; 
 and Vattel says, he may be treated as an enemy. The law of blockade 
 is, however, so harsh and severe in its operation, that, in order to apply 
 it, the fact of the actual blockade must be established by clear and un 
 equivocal evidence ; and the neutral must have had due previous notice 
 of its existence ; and the squadron allotted for the purposes of its exe 
 cution must be competent to cut off all communication with the inter 
 dicted place or port ; and the neutral must have been guilty of some 
 act of violation, either by going in, or attempting to enter, or by com 
 ing out with a cargo laden after the commencement of the blockade. 
 The failure of either of the points requisite to establish the existence 
 of a legal blockade, amounts to an entire defeasance of the measure, 
 even though the notification of the blockade had issued from the au 
 thority of the government itself. 
 
 " A blockade must be existing in point of fact ; and in order to con 
 stitute that existence, there must be a po^wer present to enforce it." 
 
 " The definition of a blockade given by the convention of the Baltic 
 powers, in 1780, and again in 1801, and by the ordinance of Congress, 
 in 1781, required that there should be actually a number of vessels 
 stationed near enough to the port to make the entry apparently dan 
 gerous." 
 
 " The occasional absence of the blockading squadron, produced by 
 accident, as in the case of a storm, and when the station is resumed 
 with due diligence, does not suspend the blockade, provided the suspen 
 sion, and the reason of it, be known ; and the law considers an attempt 
 
24 
 
 to take an advantage of such an accidental removal as an attempt to 
 
 break the blockade, and as a mere fraud But if the blockade be 
 
 raised by the enemy, or by applying the naval force, or a part of it, 
 though only for a time, to other objects, or by the mere remissness of 
 the cruisers, the commerce of neutrals to the place ought to be free. 
 The presence of a sufficient force is the natural criterion by which the 
 neutral is enabled to ascertain the existence of the blockade." 
 
 " The object of a blockade is not merely to prevent the importation 
 of supplies, but to prevent export as well as import, and to cut off all 
 communication of commerce with the blockaded port. The act of 
 egress is as culpable as the act of ingress, if it be done fraudulently. 
 The modern practice does not require that the place should be in 
 vested by land as well as by sea, in order to constitute a legal blockade ; 
 and if a place be blockaded by sea only, it is no violation of belligerent 
 rights for the neutral to carry on commerce with it by inland commu 
 nications. 
 
 "It is absolutely necessary that the neutral should have had due 
 notice of the blockade, in order to affect him with the penal .conse 
 quences of a violation of it After the blockade is once estab 
 lished, and due notice received, either actually or constructively, the 
 neutral is not permitted to go to the very station of the blockading 
 force, under pretence of inquiring whether the blockade had termi 
 nated, because this would lead to fraudulent attempts to evade it, and 
 would amount in practice to a universal license to attempt to enter, 
 and, on being prevented, to claim the liberty of going elsewhere." 
 
 " A neutral cannot be permitted to place himself in the vicinity of a 
 blockaded port, if his situation be so near that he may, with impunity, 
 break the blockade whenever he pleases, and slip in without obstruc 
 tion. If that were to be permitted, it would be impossible that any 
 blockade could be maintained." 
 
 " The fact of clearing out or sailing for a blockaded port is, in itself, 
 innocent, unless it be accompanied with knowledge of the blockade." 
 
 " In Yeaton vs. Fry, the Supreme Court of the United States coin 
 cided essentially with the doctrine of the English prize courts ; for they 
 held that sailing from Tobago for Curacoa, knowing the latter to be 
 blockaded, was a breach of the blockade, and, according to the opinion 
 
25 
 
 of Mr. Justice Story, in the case of the Nereide, i the act of sailing with 
 intent to break a blockade is a sufficient breach to authorize confisca 
 tion. If the ports be not very wide apart, the act of sailing for 
 
 the blockaded port may reasonably be deemed evidence of a breach 
 of it, and an overt act of fraud upon the belligerent rights." 
 
 " The consequence of a breach of blockade is the confiscation of the 
 ship ; and the cargo is always, prima facie, implicated in the guilt of 
 
 the owner or master of the ship If a ship has contracted guilt 
 
 by a breach of blockade, the offence is not discharged until the end 
 of the voyage. The penalty never travels on with the vessel farther 
 than to the end of the return voyage ; and if she is taken in any part 
 of that voyage, she is taken in delicto" 1 Kent s Com., 143-151. 
 
 It appears from all this, that a blockade admits, by implica 
 tion, that the port is in the possession of a party or power 
 with which the blockading party is at war, and with which 
 neutral nations, if they please, may hold commercial inter 
 course, subject to the laws of war, without payment of duties 
 to the party instituting the blockade, or interruption by that 
 party except by the blockade, or other warlike operations. In 
 other words, the port is governed for the time being, as be 
 tween the blockading party and neutral nations, by the law of 
 nations applicable to war between two powers, instead of 
 being governed, as to them as well as its possessors, by the 
 domestic law applicable to the insurrectionary resistance to 
 the established government. That government cannot say to 
 neutrals, " We debar you from entering this port because it is 
 blockaded, and if you violate the blockade, you will be liable 
 to capture and condemnation," leaving them to inquire 
 whether the blockade is maintained, and to govern themselves 
 by the law applicable to it, and at the same time say, " All 
 intercourse with the place is forbidden, because it is our port, 
 but, by reason of insurrectionary force, commerce there can 
 not be carried on with the United States, and the place, there 
 fore, is no longer to be treated as a port during the continu 
 ance of the insurrection." 
 4 
 
26 
 
 The right to treat the insurrectionary force as a belligerent 
 power by the institution of a blockade, thus leaving neutral 
 nations at liberty, if they please, to hold commercial inter 
 course with the insurgents as a belligerent power, so far as 
 they may without a violation of the blockade, is entirely con 
 sistent with the position that the insurgents themselves are 
 mere rebels and traitors. In fact, any foreign nation may 
 oblige the government assailed to resort to a blockade in order 
 to prevent commercial intercourse with the insurgents, so far 
 as such nation is concerned, by an acknowledgment of their 
 independence, or, according to modern usage, by a recognition 
 of them as a belligerent power, with a proclamation of neutral 
 ity between the contending parties, which certainly can in 
 no way affect the right of the existing government to deal with 
 the insurgents as traitors, under its own municipal law. And 
 if the government pleases to institute a blockade in anticipa 
 tion of such compulsion, no implication can arise from it 
 changing the legal relations of the parties. 
 
 Another good reason exists why the government assailed 
 may prefer to give to the insurgent force this character of a 
 belligerent party, so far as its relations with foreign nations 
 are concerned. The laws of blockade, and of capture for vio 
 lation of it, and the proceedings for adjudication thereupon, 
 are, in general, well settled and denned ; while the rules 
 which must regulate punishment for any violation of an order 
 closing the port, and forbidding entrance into it, as a means of 
 suppressing the insurrection, without a blockade, are not so 
 well settled ; and attempts to deal with infractions of such or 
 der by vessels of foreign powers would lead to unnecessary 
 collisions, certainly after a recognition of belligerency. 
 
 It has been contended that a nation cannot blockade its 
 own ports ; but this position is not tenable when the port is in 
 possession of a hostile force. To deny the right of blockade 
 in such case would be to deny its right to the port, or, practi 
 cally, to make it a free port until the government which for- 
 
27 
 
 merly held and still claimed it should destroy it ; for no mere 
 order or act for closing it could be of any avail against a for 
 eign nation which pleased to recognize the insurgents as bel 
 ligerents, without a blockade superadded. 
 
 This leads us to a more extended examination of the rela 
 tions which foreign nations do or may, according to the rules 
 of international law, sustain to those who, under the plea of 
 Secession, are using the names and styles of several States, 
 and who, with the assumption of State and Confederate au 
 thority, are waging insurrectionary warfare against the United 
 States. It is apparent, from what has been said, that these 
 relations might be either one of three different descriptions. 
 
 1. In the case of an insurrection, accompanied by an at- 
 A tempt to establish an independent government, a foreign na 
 tion may decline in any wise to interfere in the contest, treat 
 ing the case precisely as if it were an insurrection which in 
 no way affected its interests, except as the actual force of the 
 insurgents interrupts the exercise of authority by the gov 
 ernment assailed in places where that government had before 
 exercised it, and still claims the right to continue its exercise. 
 This is substantially the position of Russia, and, in fact, of all 
 European and other foreign powers, as respects the United 
 States, Great Britain, France, and Spain excepted. 
 
 The foreign government which places itself in this relation 
 may, and in some contingencies must, recognize the existence 
 of the insurrection, and vary its action, or that of its citizens 
 and subjects, accordingly. As, for instance, if the United States 
 government should prohibit the entrance of any vessel into a 
 particular port or ports, because the people of the place were 
 in a state of insurrection, so that commerce with the United 
 States under existing treaties could not be carried on there, a 
 government declining any recognition of the insurgents, or in 
 terference with reference to the contest, would instruct its sub 
 jects, consuls, and officers to regard the prohibition, and com 
 ply with the regulation of the existing government, as if that 
 
28 
 
 government still possessed full jurisdiction and control over its 
 bays, harbors, and waters, as before the existence of the insur 
 rection, without requiring any actual blockade of the ports 
 in order to enforce the prohibition. It may be quite consistent 
 with such a position for the foreign government to claim that 
 all vessels belonging to its subjects, which should enter the 
 ports without notice of the prohibition, should be permitted to 
 dispose of their cargoes and depart with such clearance as could 
 be obtained there, in the same manner as if the prohibition 
 had not existed ; because, acting in good faith toward the gov 
 ernment, as if the insurrection did not exist, and leaving that 
 government to contend with it without any interference or 
 recognition of the authority or. political existence of the in 
 surgents, the foreign nation might well claim that its subjects 
 should not suffer loss, or be prejudiced, without warning. 
 
 A foreign nation occupying such a position comes under no 
 obligation, and owes no duty, to the insurgent power. It may 
 carry on its commerce with the government assailed without 
 any liability, under the law of nations, to search and seizure 
 for contraband goods. It ma/ avail itself of any implied rec 
 ognition of the insurgents by the government assailed, as by 
 the institution of a blockade, and insist that its subjects have 
 a right to hold commercial intercourse with the insurrection 
 ary power as a belligerent, so far as they may consistently with 
 the blockade. It will naturally refuse to permit its vessels to 
 be overhauled and detained by vessels commissioned by the 
 insurgents as privateers, and may well treat such interference 
 as piratical ; although it will be at its pleasure, and consist 
 ent with its position, to permit such visitation as may serve to 
 ascertain the nationality of its vessels, without any search for 
 enemies property, or articles contraband of war. 
 
 Such a position would by no means require the foreign 
 nation, which ignored the insurgent force as an existing power, 
 to treat the privateers commissioned by the insurrectionary 
 government as pirates. It is true, that the British govern- 
 
29 
 
 merit, in the case of Greece, in 1825, alleged that " a power or 
 a community which was at war with another, and which cov 
 ered the sea with its cruisers, must either be acknowledged as 
 a belligerent, or dealt with as a pirate." But the necessity is 
 certainly not apparent, in respect to any nation whose vessels 
 are not interfered with by such cruisers. With the exception 
 of nations whose commerce is assailed, it is not necessarily an 
 objection to a privateer that she holds a commission from an 
 unrecognized power. Piracy, it is evident, may be of a gen 
 eral, or of a limited character. The slave-trade is piracy 
 under the laws of Great Britain and of the United States. 
 But this does not constitute it piracy as to other nations. And 
 the same may be true of that description of piracy which con 
 sists in robbing merchant-vessels on the high seas. The fact, 
 that those who act as privateers under commissions from the 
 Confederate States are pirates by the express provision of the 
 act of Congress before cited, as regards the United States, 
 against whose vessels they direct their warfare, does not con 
 stitute them pirates as respects other nations. And the result 
 would be the same, if, by the rules of public law, also, the 
 United States might hold them to be pirates. France, before 
 her recognition of the independence of the United American 
 Colonies, did not treat their privateers as pirates ; and the 
 government of the United States has in several instances 
 acted on the principle that privateers of insurgents not ac 
 knowledged were not pirates as to the United States, and were 
 not subject to capture as such.* But if a vessel commissioned 
 as a privateer by an unrecognized belligerent rob a vessel of a 
 neutral nation, may not any nation treat the act as piracy ? f 
 
 2. Any foreign nation, whenever the circumstances are such 
 as to warrant it, may acknowledge, for itself, the independence 
 
 * 3 Wheaton s Repprts, 610, United States vs. Palmer; 7 Wheaton s Rep. 283, 
 The Santissima Trinidad ; Case of Captain P. P. Voorhies, before a naval court- 
 martial, in 1844. 
 
 t 1 Phillimore s Int. Law, 398 - 406. 
 
30 
 
 of an insurgent organization, recognizing it as having a na 
 tional existence, and treating it as a nation ; in which case it 
 may form an alliance with the insurgent government, offensive 
 and defensive, and thus become a party to the war ; or it may, 
 with such acknowledgment, assume a position of neutrality, 
 claiming the rights of a neutral, as between what would then, 
 to the party recognizing the independence of the insurgents, 
 be two equally independent belligerent nations. Such ac 
 knowledgment of the independence of an insurgent party, 
 before its independence is recognized by the government which 
 it assails, may or may not furnish just cause of war on the 
 part of that government, according to the circumstances under 
 which it is made. If the acknowledgment follows very soon 
 upon the breaking out of the insurrection, and while the gov 
 ernment is pursuing active and energetic measures to suppress 
 it, the aid and encouragement thereby given to the rebels 
 would furnish just cause of offence to the existing government. 
 On the other hand, after the contest has been of long continu 
 ance, and the independence of the insurrectionary party has 
 been practically maintained for such a period as to show its 
 capacity to uphold it, then the interests of other nations may 
 well justify them in an acknowledgment of what has been ac 
 complished, in a recognition of an existing fact, without 
 just cause of offence to the government which has been re 
 sisted, and which has failed to overcome that resistance. The 
 commercial interests of nations having no interest in the con 
 test may require that they should make the recognition, for 
 the purpose of trade, or for other desirable ends ; and the ex 
 isting government cannot complain of the mere acknowledg 
 ment of an actual fact. But such recognition should follow 
 only a practical independence. Such was the case with the 
 acknowledgment of the independence of the South American 
 republics by the United States in 1823, the latter assuming 
 to act as a neutral nation. 
 
 The insurgent party, upon such acknowledgment, may 
 
31 
 
 claim the right to send an ambassador or minister to the 
 nation making it, and may expect in due course of time to 
 receive one, and to have their intercourse regulated by treaty. 
 After such an acknowledgment, if the nation making it does 
 not become a party to the war, either by a treaty of alliance 
 with the party thus recognized, or by a declaration of war by 
 the government assailed, on account of the recognition, the 
 nation making the acknowledgment is entitled to claim the 
 rights of a neutral with respect to each of the belligerent par 
 ties, treating each as a nation, and forming treaties with the 
 insurgent party, as if it were a nation, equally with its adver 
 sary ; and it may send and receive ambassadors, and trade to 
 and from any ports occupied and held by the party acknowl 
 edged, except so far as it is prevented by the exercise of rights 
 accorded by international law to belligerents against neutrals. 
 
 The neutral nation has the right to require that its territory- 
 shall not be made the theatre of war, nor made use of for the 
 purposes of war, and that hostile enterprises shall not origi 
 nate in, or be carried on, from it. Its citizens and subjects 
 may be the carriers of the goods of either belligerent, subject 
 to the right of the other belligerent to capture such goods, 
 and to search and detain the neutral vessel for that purpose, 
 but not to confiscate the ship ; and they may maintain free 
 commercial intercourse with each belligerent, subject to the 
 rules which forbid aid to the belligerent in the prosecution of 
 the war, and to the right of the belligerent to prevent such in 
 tercourse by an efficient blockade. 
 
 The duty of the neutral is not to favor one belligerent to 
 the detriment of the other, not to transport munitions of 
 war, or other goods contraband of war, to either belligerent, 
 not to carry officers, soldiers, or despatches of either, to 
 respect any blockade by one belligerent, of the ports of the 
 other, if it is efficient, and, generally, not to aid either bel 
 ligerent, in the prosecution of the war, except as the ordinary 
 commercial transactions in goods not contraband incidentally 
 furnish such aid. 
 
32 
 
 The rights of the belligerent as respects the neutral are, to 
 visit and search his merchant-vessels, on the high seas, for the 
 purpose of ascertaining whether enemies property, or goods 
 contraband of war, or persons whom the neutral may not 
 carry, are on board ; to capture the property of the enemy 
 so found ; * and for violation of belligerent rights, by aid 
 rendered to the enemy in transporting goods contraband of 
 war, or persons in the service of the enemy in the prosecution 
 of the war, as officers, soldiers, or other functionaries, or the 
 despatches of the enemy, and also for violation of blockade, 
 to capture and confiscate the ship and goods. 
 
 These are the principal rights and duties of the parties, as 
 set forth, in substance, by accredited writers on international 
 law, subject in some instances to limitations and modifications, 
 to which we shall refer, so far as they appear to be material to 
 the present discussion. 
 
 No nation has as yet acknowledged the independence of 
 the Confederate States. Such acknowledgment is not usu 
 ally made, unless by a nation which is disposed to ally itself 
 with the insurgents in hostility to the government assailed, 
 until the independence of the insurgents has been acknowl 
 edged by that government, or until it has been practically 
 achieved. 
 
 3. It is competent for any foreign nation, from the time 
 when an insurrectionary force assumes to institute a form of 
 government, and to carry on a war, to recognize the insur 
 gents as a belligerent party. 
 
 Considerations of policy, as well as of comity, may well 
 postpone such a recognition until there has been ample time 
 for the government assailed to assert its power for the suppres 
 sion of the insurrection. But these are matters of which each 
 nation must judge for itself. Great Britain was the first to 
 make such recognition of the Confederate States. France and 
 Spain have since followed the example. 
 
 * See Appendix, Note A. 
 
33 
 
 In one sense, this is but the recognition of an existing fact. 
 It seems, however, to carry with it something more than a mere 
 acknowledgment of the fact that there is a state of civil war 
 existing ; for that fact may be recognized, spoken of, deplored, 
 and sympathy expressed, as has been done by Russia, without 
 any political consequences attached to such recognition. 
 
 The formal recognition of the insurgent party as a bellige 
 rent, by another nation, gives the insurgents a political status 
 as to the party making the recognition, and involves conse 
 quences to the government which is attempting to suppress the 
 insurrection, as has been already suggested. This recognition 
 appears to be an action intermediate as regards the other two, 
 and to be a convenient mode of dealing with a case of intestine 
 war by a foreign nation which is desirous of being civil to the 
 insurgent party, and of availing itself of all the intercourse 
 which can be established with them, without committing itself 
 to an acknowledgment of an independence which may never 
 be achieved, and without the establishment of diplomatic rela 
 tions, which might be suddenly terminated, and in a manner 
 not greatly to the credit of the neutral, making the acknowl 
 edgment of an independence which was proved to be an abor 
 tion by the suppression of the rebellion very soon afterward. 
 
 As Great Britain was the first to acknowledge the bellige 
 rency of the Confederates, and as this acknowledgment is the 
 only one which has affected the relations of the United States 
 in any considerable degree, we shall pursue the residue of our 
 discussion with a more particular reference to the existing re 
 lations between Great Britain and the United States. Her 
 acknowledgment did not give the insurgents a right to send 
 an ambassador to the Court of St. James, nor to claim a treaty 
 of amity and commercial relations. It did not place them, as 
 respects her, in the position of a nation. But, being acqui 
 esced in by the United States, it gave her rights as against 
 them which she could not have had, as a neutral nation, but 
 for the recognition ; and it also operated to give rights to the 
 5 
 
34 
 
 insurgent government as against her, which she would not 
 otherwise have permitted it to enjoy. 
 
 Great Britain declared that she was cognizant of the fact 
 that a civil war existed in the United States. That is nothing. 
 All the rest of the civilized world knew the same thing. But 
 by adding the recognition, she accorded to them the warlike 
 rights of a belligerent nation ; and by her superadded declara 
 tion of strict neutrality, she allowed to them, for the general 
 purposes of commercial intercourse and warlike operations, 
 all the rights which she allows to the United States, aside from 
 previous treaty stipulations. She bound herself to respect 
 their " stars and bars " equally with the flag of the United 
 States. If, in her existing treaty with the United States, 
 there are any stipulations on her part, the performance of 
 which would conflict with the recognition which she thus 
 made, and the neutrality which she thus assumed, the ques 
 tion might arise, between her and the Confederates, how far 
 she had a right, under the law of nations, to perform those 
 stipulations without a breach of her neutrality. She knew 
 that, at the date of her present treaty with the United States, 
 all the ports in the seceding States, so called, were in the pos 
 session of the general government, and that the duties there 
 paid were part of the common funds of the whole United 
 States. She knew that at the time of her recognition those 
 ports were in the possession of the insurgents, who claimed to 
 regulate the commercial intercourse there, and to appropriate 
 the revenues derived therefrom to other uses than to those of 
 the United States. And she knew also how the revenue of the 
 United States would be injuriously affected, by the facilities 
 for smuggling into the Northern States goods introduced 
 through those ports, if a free commerce were carried on there. 
 Yet, by her recognition of the Confederate States as an exist 
 ing power, she acknowledges those ports to be the ports of the 
 party in possession, and claims the right, as a neutral nation, 
 to enter those ports, and any others which may be opened by 
 
35 
 
 the Confederate States, with her ships and goods, unless the 
 United States government shall enforce its attempts to sup 
 press the insurrection there by an efficient blockade, precisely 
 as she would be authorized to do in the case of two long exist 
 ing independent nations contending in war, and to which she 
 held the relation of neutrality. The United States are at 
 tempting to keep up such a blockade. 
 
 It is true that the United States were not compelled to re 
 sort to the blockade by reason of her recognition. The inten 
 tion to blockade was proclaimed on the 19th of April, which 
 was before the recognition. But it is also true, we think, 
 that that recognition, which was in May,* was in no manner 
 influenced by the implied recognition arising from the block 
 ade. Her recognition of the insurgents as a belligerent party 
 has therefore, to this extent, by her voluntary act, given them 
 the standing of a nation, although there is no acknowledg 
 ment of their independence. The blockade itself would not 
 necessarily have done this ; and but for the recognition, it 
 might have been terminated at pleasure, so far as Great Brit 
 ain was concerned, and any other measure of coercion have 
 been substituted. 
 
 It has been said, without much consideration, that British 
 ships would have had a right to resort to those ports without 
 
 * There has been an attempt to controvert the position in the article on " Habeas 
 Corpus and Martial Law " in oar last number, that Mr. Chief Justice Taney ought, 
 in Merryman s case, to have taken notice of the existence of the war. The position 
 itself is of Very little importance to the argument, which was to show that the 
 refusal of General Cadwalader to produce his prisoner was sustained by sound 
 principles ; for the Chief Justice very plainly intimated that, if General Cadwala 
 der had himself undertaken to suspend the habeas corpus, (in other words, to deny 
 his liability to bring in his prisoner,) he would not have taken the trouble to argue 
 the question. But it appears that the Lord Chancellor and other legal authorities 
 in England had found out that war existed here some time before Merryman s case 
 came before the Chief Justice, which was on the 28th day of May. And as the 
 information respecting the facts which served to show its existence was not con 
 fined exclusively to that country, perhaps, if Mr. Chief Justice Taney had inquired, 
 he might have found it out also. 
 
36 
 
 any such recognition, if there was not an actual blockade, be 
 cause, the right of secession being denied by the United States, 
 they are still ports of entry under the laws of the United 
 States, the President having no power to repeal the laws con 
 stituting them ports of entry. It is readily conceded that the 
 President has no power to repeal a law ; but we have already 
 suggested that he might, by reason of the insurrection, which 
 prevented the collection of the duties, and for the purpose of 
 suppressing that insurrection, close the ports by a proclama 
 tion, which all foreign nations that did not recognize the bel 
 ligerent status of the Confederate States would be bound to 
 respect. If there was in fact a doubt respecting his constitu 
 tional power, the intercourse of foreign nations with the United 
 States is through the Executive, and they are not authorized 
 to go behind his acts, and to allege that they are nugatory, be 
 cause under the provisions of the Constitution a power which 
 he attempts to exercise is vested only in Congress.* There is 
 no need, however, of saying this in a curt or spicy manner. 
 
 Moreover, without regard to any question of right legally to 
 close the ports, foreign nations could not claim to enter those 
 ports, as ports of the United States, after they had been noti 
 fied by the Executive that they could not make their entries 
 there under the authority of the United States, that duties 
 paid there would be paid to insurgents, and that clearances 
 there must be taken from parties at war with the United States ; 
 for which reason, and for the suppression of the insurrection, 
 entries were forbidden. 
 
 But the burden of the recognition seems not to be alto 
 gether upon the United States. Great Britain appears there- 
 
 * Mr. Jefferson Davis understands this. In his first message to the Confederate 
 Congress, he said that the proclamation of President Lincoln was a plain declaration 
 of war, which he was not at liberty to disregard, because of his knowledge that, 
 under the Constitution, the President was usurping a power granted exclusively to 
 Congress. "He is the sole organ of communication between that country and 
 foreign powers." 
 
37 
 
 by to have subjected her merchant-vessels not only to a right 
 of visit to ascertain their nationality, but to a right of search 
 and capture, in the same manner, and to the same extent, as 
 she would have done had she acknowledged their indepen 
 dence. If the United States must accord to her the rights of 
 a neutral nation, by an efficient blockade, in order to exclude 
 her vessels from the Southern ports, they must certainly have 
 the rights of a belligerent against a neutral, and may capture, 
 in her merchant-ships, goods the property of the enemy, all 
 articles known as contraband of war, and all persons whose 
 carriage by the neutral is not in strict accordance with the 
 neutrality. 
 
 The privateers commissioned by Mr. Jefferson Davis may, 
 in like manner, search British merchant-vessels with similar 
 rights, and for any abuse of the power her reclamation for 
 damages is upon "King Cotton," if he is not in the mean 
 time consumed by his own or some other fires. 
 
 Whether the Confederate privateers will also be authorized 
 to capture such loyal citizens of the States which have seceded 
 as may be found on board of British vessels, but having no 
 military or hostile character except as they are citizens of the 
 United States, and turn them over to the Confederate gov 
 ernment as prisoners at twenty-five dollars per head, according 
 to the tenor of the law under which they are commissioned, is 
 perhaps not so clear. Upon the principle, or want of principle, 
 of what the London Times now calls the " antiquated law," by 
 which Great Britain claimed a right to search, and take her 
 subjects from, the vessels of the United States, she would be 
 bound to admit the right of the United States to take their citi 
 zens from her vessels ; and giving equal rights to the Confed 
 erate States, the question would arise whether all citizens of 
 the seceded States are included within the rule. This as 
 sumption of burdens, however, is her affair, not ours. We 
 merely advert to it as one of the incidents which attends the 
 recognition. 
 
38 
 
 It seems very apparent, from what we have stated, that the 
 recognition of the Confederate States as a belligerent power 
 has substantially the effect of an acknowledgment of their 
 independence, except that it does not authorize a demand of 
 diplomatic intercourse and the formation of treaties. How far 
 was such an early recognition justified by history ? 
 
 The long civil war of her South American Colonies against 
 Spain, and their establishment of independent governments de 
 facto, required a recognition of them by the United States. 
 Lord John Russell referred to the recognition of Greece, in 
 her war against Turkey, as furnishing a precedent. We are 
 not advised that he referred to any other. But the precedent 
 fails entirely, except as to the fact of that kind of recognition. 
 Greece had no share nor voice in the government of herself, 
 still less in governing Turkey at the same time. She had not 
 furnished three quarters of the Sultans who within less than 
 a century had occupied the throne at Constantinople, and she 
 had not, by one enginery or another, shaped the legislation of 
 the great divan of the Turkish empire so as to suit her pur 
 poses, in three quarters of the political measures adopted there 
 during the same time. No state had been annexed to the em 
 pire for her aggrandizement, and to give her political strength ; 
 and no war had been waged for the acquisition of Mexican 
 or other territory in order that she might diffuse through it 
 her peculiar institutions. On the contrary, she had been 
 subjugated, though not entirely conquered ; subdued, with 
 the exception of the almost wild inhabitants of her mountain 
 fastnesses ; and ground into the dust by the iron heel of a 
 military oppression which spared neither age nor sex, which 
 wrested from labor the reward of its toil, and snatched from 
 hunger the morsel necessary to save it from becoming star 
 vation. 
 
 This people rose up in their might against their oppressors, in 
 1821, reasserting their national existence ; and after a warfare 
 of more than four years, a warfare of immeasurable atrocity 
 
39 
 
 on the part of the Turks, and almost corresponding ferocity on 
 the part of the Greeks, a warfare which placed Missolonghi 
 and Navarino on the page of history by the side of Marathon, 
 and immortalized, among many others, the names of Mavro- 
 cordato, Colettis, Kanaris, Botzaris, and Miaulis, the British 
 government issued " a decided declaration of neutrality " be 
 tween the belligerents. 
 
 The conclusion seems to follow, that the acknowledgment of 
 a belligerent status of the Confederation, before the adminis 
 tration of President Lincoln had had time to determine upon 
 its measures and organize its forces for the suppression of the 
 insurrection, with the attempt to carry on a neutral com 
 merce with the ports within its limits, which ports are de jure 
 still within the United States and under the jurisdiction of that 
 government, and were only de facto without their jurisdiction, 
 by the force of an insurrection of from four to six months 
 duration, is entirely without a precedent, and might well be 
 deemed a grave ground of offence to the United States, had 
 not the blockade been previously instituted. It has undoubt 
 edly been the cause of deep feeling among the people. We 
 are aware that Dr. Phillimore says : " There is no proposition 
 of law upon which there exists a more universal agreement of 
 all jurists than upon this ; viz. that this virtual and de facto 
 recognition of a new state gives no just cause of offence to the 
 old state, inasmuch as it decides nothing concerning the as 
 serted rights of the latter. For if they be eventually sustained 
 and made triumphant, they cannot be questioned by the third 
 power, which, pending the conflict, has virtually recognized 
 the revolted state." * But he is speaking of such recognitions 
 as were made by Great Britain of the South American Colo 
 nies, after a struggle between them and Spain of about twelve 
 years ; and he refers to President Monroe s message of De 
 cember, 1823, and to the speeches of Mr. Canning and Sir 
 
 * 2 Phill. on International Law, 18. 
 
40 
 
 James Mackintosh upon that subject, as his authorities for the 
 proposition. 
 
 A recognition following soon after the breaking out of an 
 insurrection, and where from the peculiar circumstances there 
 are special difficulties in organizing the forces of the govern 
 ment for the suppression of it, has the effect of giving an en 
 couragement to it, which a nation in amity with the existing 
 government, and desirous of continuing that relation, is not 
 authorized to give. 
 
 The British government were as little prepared for the 
 breaking out of the insurrection in India as the United States 
 were for that of the South ; but the arm of the government 
 was not paralyzed, for the time, by a complicity of Cabinet offi 
 cers with the insurrection, and by such a state of inaction, if 
 not complicity, on the part of the head of the administration, 
 that nothing effective could be accomplished to arrest it until 
 the traitors of the Cabinet had been forced to send in their un 
 willing resignations. Besides, the available military force of the 
 British near the scene of warlike operations was much more 
 readily concentrated, and comparatively of much greater effi 
 ciency, than that of the United States ; and (excepting native 
 troops) it had few or no traitors in it. Still, with all these 
 advantages, the British power in India was for a considerable 
 period shaken to its foundation, and it was said in high quar 
 ters that " India was to be reconquered." Now suppose that, 
 at about the time when Havelock began to move effectively for 
 the suppression of the rebellion, some member of Congress had 
 arisen in his place, and proposed a formal acknowledgment of 
 the independence of British India. That would have been but 
 the act of an individual legislator, who, not being the author 
 ized exponent of the views of the administration, could in no 
 wise compromise the government itself. But suppose the au 
 thorized Cabinet officials had thereupon, if not in hot haste, 
 yet under no circumstances of necessity, proceeded to declare 
 that the United States had concluded to recognize the king of 
 
41 
 
 Delhi and his adherents as belligerents. The English govern 
 ment would undoubtedly have regarded this as an evidence of 
 hostility, not entirely rebutted by any proclamation of strict 
 neutrality which might have accompanied it. Yet such a pro 
 ceeding would not have given courage and confidence to his 
 Majesty of Delhi and his confederates to persevere in their 
 rebellion. 
 
 Such are some of the relations of the United States, domes 
 tic and foreign, arising from the insurrection in the Southern 
 States, as they exist at the present time. What are the rea 
 sonable speculations for the future on this subject ? 
 
 The Confederate War Secretary, upon the occasion of the 
 bombardment of Fort Sumter, prophesied that the Confeder 
 ate flag would float over the dome of the old Capitol before the 
 first of May ; and he added : " Let them try Southern chiv 
 alry, and test the extent of Southern resources, and it might 
 float eventually over Faneuil Hall itself." Well, Southern 
 chivalry has been tried. It began by stealing all the public 
 property it could lay its hands on, and then issuing letters of 
 marque and reprisal before a particle of property had been 
 taken by the United States, or any injury had been done to 
 the Confederacy which could by any possible construction 
 warrant reprisals. It has proceeded by the confiscation of the 
 property of those who, having faith in the securities of South 
 ern States and Southern people, had invested in such State 
 securities, or given credit to traders for merchandise ; and 
 this without regard to any act done by such holders of stocks 
 or creditors, but merely because certain people of the South 
 ern States chose to rebel against the government of the United 
 States, that government resisted the attempt, and the stock 
 holders and creditors were, ever had been, and still remained 
 citizens of the United States. Chivalry finds its only justifi 
 cation for this seizure of private property in the fact, that the - 
 government under which all the parties have heretofore lived, 
 and to which all acknowledged a common allegiance, resists 
 6 
 
42 
 
 the efforts of the debtors to accomplish a revolution. Chivalry 
 has been tested in arms, as well as in legislation, and it mani 
 fests itself in masked batteries and ambuscades, the hoisting 
 of false flags and signals, and all manner of false pretences 
 for the purpose of securing an unequal advantage. Chivalry 
 thus far is cooped up within the limits of the States seceding, 
 except that, in violation of all its State-rights theory, it is 
 insisting that Missouri and Kentucky, against the expressed 
 will of the people of those States, shall join in the rebellion ; 
 and it has thereupon attempted to overrun the former, and 
 has made a lodgement in the southern portion of the latter. 
 As an offset to this, it has lost Western Virginia, considerable 
 portions of the eastern part of that State, and several positions 
 on the seaboard in other States. It stands now, and, so far 
 as at present can be judged, it is likely to stand, very much 
 on the defensive, unless Southern " resources " come to the 
 rescue. 
 
 Thus far Southern resources have not shown to much bet 
 ter advantage than Southern chivalry. Proposals for a loan 
 of fifteen millions of dollars are said to have realized ten 
 millions. A project for a loan of cotton to the amount of 
 one hundred millions is admitted to be a failure, because the 
 " king " is shut up on a barren throne within his dominions, 
 and cannot there be made negotiable. A tax of fifteen mil 
 lions remains to be collected in such manner as it may be. 
 In the mean time an issue of one hundred millions of Con 
 federate bonds has no convertibility into coin, and no basis 
 of redemption, and can therefore have no credit outside the 
 limits of the Confederacy, and none within it except such as 
 is enforced by the necessities of the war. Banks have sus 
 pended specie payments, and coin of all descriptions is at an 
 extravagant premium. External trade is nearly all cut off by 
 means of the blockade, a few arrivals and clearances, through 
 a surreptitious evasion of it, furnishing only an exceedingly 
 limited supply of munitions of war and foreign goods. Of 
 
43 
 
 manufacturing and domestic trade there can, under these 
 circumstances, be but a very small amount, except in connec 
 tion with supplies for the army ; and many descriptions of 
 what are ordinarily regarded as the necessaries of life are, in 
 particular districts, at almost famine prices. On the other 
 hand, the agricultural crops for the present year are supposed 
 to have been abundant, so that there is no prospect of the ter 
 mination of the war by absolute starvation. 
 
 In discussing the question of the probable duration of the 
 war, it has been suggested that the people of the South are 
 fighting, or, what is the same thing, believe they are fighting, 
 for their liberties ; and that, in all controversies of such a 
 character, there is a pertinacity of purpose, which continues 
 the contest without resources, and under all deprivations and 
 reverses, until a final victory is achieved. One of the re 
 sources of the leaders of the rebellion has been the repre 
 sentation to the great mass of their misguided followers, that 
 this is a war of subjugation, and that, if they fail to fight to 
 the last extremity, their liberties will be lost. But the sober 
 second-thought, if that thought ever comes, will show them 
 that the termination of the war will leave the several States 
 which have attempted to secede in the possession of all their 
 rights of sovereignty, and in all the control of their municipal 
 affairs which they have ever had since the adoption of the 
 Constitution, except so far as the rebellion has introduced 
 revolution into any particular State, through which some of 
 them may possibly find themselves dismembered by the action 
 of their own people, and except as the situation and legal 
 condition of their slaves may, to a very material extent, be 
 changed, if the war is protracted. 
 
 That the war must continue on the part of the North until 
 the navigation of the Mississippi, from its sources to its mouth, 
 is secured to the people of the Northwest, so that no hostile 
 power upon its banks can impede such navigation, or until 
 the Northern States are rendered powerless to prosecute the 
 
44 
 
 contest to a successful issue, may be assumed to be certain. 
 The promptitude with which batteries were erected on the 
 banks of that river immediately after the outburst of the se 
 cession, for the purpose of controlling and closing the naviga 
 tion of it, and thereby coercing the people of the Northwestern 
 States into submission to the rebel power, shows conclusively 
 that there can be no security for the free navigation of it ex 
 cept by holding it, and its banks on either side, within the 
 jurisdiction of the United States. The great facilities for 
 smuggling, through the entry of goods into the Southern ports 
 and their subsequent introduction into the North along such 
 an extensive line of inland frontier as would exist on a sepa 
 ration of the States, and the fact that rival interests would 
 create sources of constant irritation, furnish other reasons 
 why the eventual establishment of the authority of the United 
 States must be sought by the Northern States, even through a 
 protracted contest, and at an enormous sacrifice. With vic 
 tory secured, the North would rise up with renewed energy, 
 and with its own material interests comparatively unimpaired, 
 except by a decrease in the demand for articles heretofore 
 furnished to the South. 
 
 Not so with the South. With a protracted contest, even 
 victory is a substantial defeat. Cotton, which has been sup 
 posed to be the great resource to carry them through the rev 
 olution, has, as we have seen, thus far proved a failure. It 
 cannot be applied as a means to carry on the war to any great 
 extent, except by a conversion into money or other articles ; 
 and as this could not be effected, the crop of the present year 
 remains on hand. Only a certain amount of cotton, more or 
 less, is required for the consumption of the world, and this 
 crop, if it could have found a market, would have supplied 
 the demand in England, France, and the Northern States. 
 With the diminished demand for manufactured articles, the 
 supply from other quarters has thus far sufficed, so that no 
 great distress has supervened from the want of Southern cot- 
 
45 
 
 ton ; not more, probably, than ordinarily occurs in the course 
 of a commercial revulsion, perhaps not so much. Another 
 full crop, if raised before this is disposed of, will operate as a 
 reduction of its ordinary value, by furnishing an excess of 
 supply for the existing machinery. In the mean time, every 
 year s delay in getting it to market stimulates the cultivation 
 of cotton abroad. If the present state of things continues two 
 or three years, the competition of foreign cotton will reduce 
 the price to perhaps two thirds, or even one half, of the rate 
 heretofore paid ; and with this reduction comes a correspond 
 ing reduction in the value of slaves and the value of planta 
 tions. It is for the interest of Great Britain to foster and 
 protect the growth of cotton in her own dominions, and the 
 production of a sufficient amount within her territory once 
 secured, American cotton will not be allowed to ruin that 
 source of national wealth. 
 
 Another resource of the South, which has thus far been the 
 means of strength in the prosecution of the war, is slavery. 
 The slaves are the producers, and the masters can all the bet 
 ter be spared to fill the ranks of the army. It will continue 
 to be so until the troops of the United States penetrate the 
 slave territory. Until that time, proclamations for emancipa 
 tion, from whatever source, will be of no avail. The Presi 
 dent and Congress have no more authority to emancipate the 
 slaves, than the writer of this article. An attempt so to do 
 would be a gross usurpation of power. The general at the 
 head of the army has no right to emancipate them, except 
 as an incident to military occupations and operations ; and 
 whatever theory may exist on that subject, he can accomplish 
 nothing further than he penetrates the country. So far as he 
 does this, the question of his right to issue a proclamation for 
 that purpose is not very material. The emancipation will 
 take care for itself. He cannot fight the rebels successfully, 
 and at the same time aid them to hold their slaves ; and the 
 result is practical freedom. If they avail themselves of it, be- 
 
46 
 
 cause their masters have escaped from them, then there is no 
 fugitive slave law to return them after the rebellion is sup 
 pressed. But if they remain until their masters have resumed 
 their occupation under State authority on the return of peace, 
 this practical freedom is not likely to prevent their return to 
 bondage. When, however, the Northern army has made a 
 successful march through Virginia into South Carolina, there 
 is another result, which, while it cannot be contemplated but 
 with horror, must, if it occur, be charged to those whose mad 
 ness will have brought it upon them. 
 
 The great resource upon which the South has relied to 
 carry it successfully through a revolution, has been the inter 
 ference of Great Britain and France. It was assumed that cot 
 ton was a king at whose feet the people of Europe must pros 
 trate themselves and their principles, and that, if Southern 
 chivalry could not fight its own battles, they would, through 
 this instrumentality, be fought for it by other powers. It re 
 mains to be seen whether this resource will be made available 
 to the accomplishment of the object. What is the probability 
 of such interference ? 
 
 Without assuming the office of a prophet, we venture to ex 
 press a confident belief that there will be no immediate change 
 in the relations which at present exist between the United 
 States and foreign powers, unless some new, and at present 
 improbable, complication of those relations shall give rise to 
 new and grave causes of hostility. 
 
 The sympathy of Russia with the United States has been 
 manifested in a most friendly and generous manner. 
 
 Spain, not only in her proclamation of neutrality, but in the 
 enforcement of it by the release of the prizes sent into Cien- 
 fuegos by the privateer Sumter, has given conclusive evidence 
 that she has no sympathy with the rebellion. 
 
 With respect to France, there has been no supposition that 
 there was danger of collision. The course thus far pursued by 
 Napoleon III., and by the people of the French empire, while 
 
47 
 
 it has evinced a deep solicitude respecting the effect which the 
 civil war might have upon the material interests of France, 
 has at the same time furnished satisfactory evidence that the 
 French government and the French people with some excep 
 tions certainly among their press and people are disposed to 
 accord to the United States all their rights, upon the most fair 
 interpretation of the law of nations. 
 
 What is the probability that Great Britain will belie all her 
 professions in favor of free principles, and tarnish her fair fame 
 by an alliance with a rebellion, which, caused almost entirely 
 by the opposition of the North to the extension of slavery, has 
 organized a Confederacy with slavery for its chief corner-stone, 
 and which, if successful in establishing its independence, will 
 soon insist upon opening the slave-trade ? 
 
 There are certainly no grave causes of controversy or hostil 
 ity between the United States and Great Britain. More than 
 two generations of mankind have passed away since the period 
 of the American Revolution, and very few remain within the 
 confines of this world whose fading memories retain even a 
 faint remembrance of that contest. The controversies which 
 led to the war of 1812 have either been amicably settled, or 
 have fallen out of sight, and there can be no rankling bitter 
 ness which arose out of them still remaining to find expres 
 sion in the promotion of another war. Most of those who, on 
 either side, were actively engaged in that contest, have laid 
 their hostility to rest in the bosom of their common mother, 
 earth. That all causes of difference arising from two wars, 
 and from divers controversies respecting boundaries, and other 
 matters of dispute, had left no evil feeling on the part of 
 the people of the United States, or at least the Northern and 
 Western portion of them, was made most clearly apparent 
 upon the occasion of the visit of the Prince of Wales to this 
 country in 1860. There could not possibly be a more exuber 
 ant manifestation of perfect friendship than was exhibited, not 
 only by all persons in official station, but by the great masses 
 
48 
 
 of the people, of all classes and conditions, from the time when 
 the heir apparent set his foot upon the soil of Michigan, until 
 the moment when it left its last imprint upon that of Maine 
 on his departure homeward. If there was any one who was 
 weak enough to suppose that the grand pageant, which con 
 tinued almost without interruption from day to day during his 
 progress through the country, in which President and Cabi 
 net, governors and judges, senators and representatives, vied 
 with one another in proffers of respect and courtesy, and in 
 which the great body of the people made the welkin ring with 
 their shouts of welcome, was a mere demonstration of joy at 
 the sight of a live prince, or a weak cringing to royalty, he 
 must have greatly misunderstood the signs of the times. The 
 enthusiasm, which seemed almost unbounded, while it was un 
 doubtedly a spontaneous testimonial of respect to the Queen, 
 showing the popular estimation of her Majesty as a sovereign, 
 a woman, a wife, and a mother, was at the same time a dem 
 onstration of gushing good feeling for the government of the 
 country and its people at large. Old causes of feud were for 
 gotten, rival industrial interests were for the time but as 
 matters for a generous competition, taunting words, which 
 in bygone days had been profusely dispensed, gave place to 
 courteous speech, which not only came trippingly from the 
 tongue, but which welled up from the heart. 
 
 There was certainly no little cause for astonishment, and 
 there might well be no little revulsion of feeling, on the part 
 of the people of the Northern States, when, within some six 
 months afterward, and before the incoming administration 
 had time to make preparations for suppressing the insurrec 
 tion, there was an effort in Parliament to give strength to it, 
 by an acknowledgment of the independence of the Confed 
 eracy, and the establishment of commercial relations with it, 
 which found large countenance from the English press. 
 
 It may be admitted it is undoubtedly true that much 
 of this offensive demonstration had its origin, not in feelings 
 
49 
 
 of hostility, but in a belief that the rebellion must succeed, 
 and in anticipated commercial relations with the new-born 
 power thus proposed to be baptized into the great national 
 and commercial church universal ; which was even upon 
 the supposition of its existence the offspring of treason and 
 fraud, lying in a cradle constructed by theft and robbery, and 
 rocked and nursed by African slavery." But it appeared some 
 what remarkable that the wise politicians who were thus will 
 ing to overlook the stigma upon the parentage of the bantling 
 for which they were ready to stand as political godfathers, 
 should at the same time have ignored the fact that the com 
 mercial intercourse of the Northern States was of some value 
 to Great Britain, and that this was likely to be seriously inter 
 rupted at no distant day, if their project was accomplished. 
 It may be, however, that they supposed, with the London 
 Economist, that the dismemberment of the Union would par 
 alyze both sections. The Economist, while disclaiming any 
 feeling of hostility, very frankly admitted its joy at the pros 
 pect of the dismemberment, not merely on account of the 
 commercial advantages to accrue to England, but because it 
 would destroy the power of the people of the United States, 
 and put an end to their vain boasting. As for the "boasting," 
 it is quite true that in speeches in Congress, in inflammatory 
 editorials, in fourth of July orations, lyceum lectures, and 
 sometimes in things called sermons, we exhibit enough, and 
 more than enough, of that miserable spirit ; no small portion 
 of it being (if regarded at all) offensive to England and Eng 
 lishmen, although it is specially designed for home consump 
 tion. But there are at least two things to be considered in 
 extenuation. We know what people, of all the world, have 
 heretofore set us the example in this respect ; and we know 
 also from what people in bygone and later days have come 
 the taunts and the disparagement which have given rise to 
 no small portion of it. But when we gave the Prince of 
 Wales his great ovation, we were not thinking of the old 
 7 
 
50 
 
 inquiry, " Who reads an American book ? " nor of the char 
 acteristics which have more recently, over the water, been 
 assigned to " our American cousins " and their democratic 
 government. Whatever may have been said by politicians in 
 Congress or out of Congress, or by newspaper correspondents 
 or editors, or in great and small orations, furnishes no good 
 reason why Great Britain should interfere on the Confederate 
 side, in this civil war. A full share of this offensive boasting 
 has had its location south of Mason and Dixon s line. 
 
 It was for a long time expected by the Southern leaders 
 that Great Britain would raise the blockade to procure a sup 
 ply of cotton, and great efforts were made to represent that it 
 was not efficient. We had been at some pains to procure sta 
 tistics on which to base a trustworthy estimate of the supply of 
 cotton which will be received in Great Britain in 1862 from 
 other sources than the Southern States, for the purpose of 
 showing that her necessities in this respect would furnish no 
 excuse for any such interference. No evil, such as ordina 
 rily attends a commercial crisis, could furnish a sufficient 
 reason. But we are relieved from a discussion of this subject 
 by the London Economist, which referring to the notion of 
 the Southern political leaders, " that by starving France and 
 England, by the loss and suffering anticipated as the conse 
 quences of an entire privation of the American cotton sup 
 ply, they will compel those governments to interfere on their 
 behalf, and force the United States to abandon the blockade " 
 says : 
 
 " If they really expect such a high-handed violation of all inter 
 national usage on our part, we can only say their leaders ar.e less sen 
 sible and experienced men than we have hitherto supposed. There is 
 not the remotest chance that either power would feel justified for a 
 moment in projecting such an act of decided and unwarrantable hostil 
 ity against the United States. We are less dependent upon the South 
 than the South is upon us, as they will erelong begin to discover. It 
 is more necessary for them to sell, than for us to buy. As we have 
 
51 
 
 more than once shown, the worst that can happen to us from a contin 
 uance of the blockade will be, that our mills will have to work two- 
 thirds time ; and it is by no means sure from present appearances 
 whether the aggregate demand of the world would suffice to take off 
 much more than three fourths of a full production, even if we had 
 cotton in abundance." 
 
 The allegation that the blockade has not been so far effec 
 tive as to comply with the rules of international law on that 
 subject, if it may have been true at some places, has not been 
 so to the extent which has been represented. The blockading 
 force has in most instances been sufficient to make any open 
 attempt to enter or leave the port dangerous. The number of 
 arrivals and departures, which has been paraded as evidence 
 of its inefficiency, furnishes no proof against it. Nearly all of 
 them have been fraudulent evasions of the blockade. 
 
 It is not incumbent on the party instituting a blockade to 
 station a force at all the inlets and petty harbors on the coast, 
 where there is no recognized port ; where no entry could be 
 made, or clearance had, in time of peace ; and where, of 
 course, if any commerce were carried on, it would be smug 
 gling, and not a lawful commerce. Any running into and out 
 of such places, in order to avoid the danger of the blockading 
 force, is fraudulent, and has no tendency to show that the 
 blockade is not effective. 
 
 Nor is it necessary that the blockading force should be such 
 that a vessel, taking advantage of a skilful pilot and the dark 
 ness of midnight, cannot make her entry, or exit, without 
 being discovered. To require such a blockade would be to 
 require an impracticability. Vessels navigated by steam, to 
 say nothing of sailing-vessels, by selecting their time, can in 
 many instances run a blockade. 
 
 Whether the contrivances to evade the blockade are by the 
 petty codfish hucksters of the Anglo-American colonies, who 
 fraudulently clear for some of the West India Islands, and 
 then slyly slip into Hatteras or some other inlet ; or whether 
 
52 
 
 by the more pretentious " greedy merchants " of Hartlepool or 
 some other " pool ".on the English coast, " who care not how 
 things go, provided they can but satisfy their thirst of gain,"* 
 and who, violating at the same time the laws of their own 
 government and those of the United States, the vaunted prin 
 ciples of British freedom and the proprieties of national inter 
 communication, sneak, in the darkness of night, into the har 
 bor of Savannah or of Charleston, for the sake of acquiring 
 the " almighty dollar " with the love of which they delight 
 to taunt the Yankees ; it does not rest with Great Brit 
 ain to allege that the success of such attempts, however 
 numerous, by those whom she must admit to be, thus far, 
 her unworthy subjects, can show an insufficiency of the 
 blockade. 
 
 Almost at the time when we were writing the last sentence, 
 the foreign relations of the United States were further com 
 plicated by the seizure of Messrs. Mason and Slidell, on board 
 the British steamer Trent, on her passage from Havana to St. 
 Thomas, she being at the time on the high seas, and being (it 
 is understood) a passenger vessel, owned by private parties, 
 but carrying the British and foreign mails by contract with the 
 government. 
 
 Messrs. Mason and Slidell had recently left the port of 
 Charleston, in a vessel belonging to parties there, for the pur 
 pose of proceeding to Europe, by way of Havana, as " Ambas 
 sadors of the Confederate States," as they have generally been 
 called ; but a more correct designation would be, as the agents 
 or commissioners of the Confederate government, for the pur 
 pose, it may be presumed from other facts too numerous here 
 to be stated, of obtaining, if possible, an acknowledgment of 
 the independence of the Confederate States, of communicat 
 ing with their agents already there, and of aiding in the 
 adoption of such measures as might promote the interests of 
 those States in the existing war with the United States, by ne- 
 
 * Puffendorff, cited by Sir William Scott, 1 Rob. Adm. Rep, 352. 
 
53 
 
 gotiations for the purchase of arms and munitions of war, and 
 their transportation to the ports of the Southern States. 
 
 Mr. Jefferson Davis, in his late message to the Confederate 
 Congress, speaks of them as " the distinguished gentlemen 
 whom, with your approval, at the last session, I commissioned 
 to represent the Confederacy at certain foreign courts " ; and 
 he charges the United States with having " violated the rights 
 of embassy, for the most part held sacred even among barba 
 rians, by seizing our ministers whilst under the protection and 
 within the dominions of a neutral nation." It may be noted 
 that this shows conclusively that their original destination was 
 Europe, that their proceeding to Havana in the first in 
 stance was merely for security, or convenience, and transship 
 ment, and thus that their voyage on board the Trent was 
 merely a continuation of a voyage from Charleston to Europe. 
 They were bearers of despatches, also, of the character of 
 which we shall speak hereafter. 
 
 From this designation of them as "Ministers" and "Ambas 
 sadors," in the message, and elsewhere, it was but a matter of 
 course that much of the discussion, in the papers of the day, 
 has been upon the question of the right of a belligerent to stop 
 the ambassador of his enemy. The right is asserted by Yattel. 
 It is reasserted by Sir William Scott, in this language : 
 
 " I have before said, that persons discharging the functions of am 
 bassadors are, in a peculiar manner, objects of the protection and favor 
 of the law of nations. The limits that are assigned to the operations 
 of war against them, by Vattel, and other writers upon those subjects, 
 are, that you may exercise your right of war against them, wherever 
 the character of hostility exists. You may stop the ambassador of 
 your enemy on his passage ; but when he has arrived, and has taken 
 upon himself the 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." Case of the Caroline, 6 Robinson s Adm. Rep. 
 467, 468. 
 
54 
 
 The doctrine thus stated may, as between England and the 
 United States, be regarded as a sound principle of interna 
 tional law. 
 
 " You may stop the ambassador of your enemy on his pas 
 sage " ? When, and where, and on what passage, may you stop 
 him ? It has been argued, in reference to this case, in sub 
 stance, that he may be stopped only while in his own country, 
 or while passing through the country with which his govern 
 ment is at war, or on the high seas in a vessel of his own coun 
 try ; and that in this case the stoppage was unlawful, because 
 the, ambassador when in a neutral vessel is in a neutral terri 
 tory. Mr. Jefferson Davis falls into this error. He speaks, as 
 appears in the extract above quoted, of seizing " our ministers 
 while under the protection and within the dominions of a 
 neutral nation " ; and he adds, that " a claim to seize them in 
 the streets of London would have been as well founded as that 
 to apprehend them where they were taken," which shows that 
 he has no very correct notions upon the subject. It is readily 
 perceived that no possible question could arise respecting the 
 right to stop the ambassador of your enemy, as you may stop 
 any other enemy, when you find him in the enemy s territory; 
 or if he attempt to pass through your own, on his way to his 
 destination. There is as little doubt that you may not inter 
 fere with him while in neutral territory, without just cause 
 of offence to the neutral power whose territory protects him ; 
 and no question whatever that a neutral vessel on the high 
 seas is, as respects belligerent rights, in no just sense neutral 
 territory. The right in time of war to search a neutral vessel 
 which may reasonably be supposed to have contraband goods 
 on board, and to capture and confiscate the vessel, as well as 
 the goods, shows conclusively a marked distinction between 
 the vessel and the territory of the neutral, the latter not being 
 the subject of search, and of course not of seizure and of con 
 fiscation, on the ground that munitions of war are found there, 
 even with evidence that they were intended to be conveyed 
 
55 
 
 to the enemy. The question of contraband, or not, does not 
 arise until the goods are on their transit, and out of the lo 
 cal neutral jurisdiction. If then, as a matter of international 
 law, you may stop the ambassador of the enemy, you may stop 
 him on his outward passage while on board a neutral vessel. 
 
 But the further question immediately presents itself, May 
 you stop him in all cases where you find him thus in the 
 neutral vessel, and if not, upon what voyage must he be found 
 in order to the exercise of this right ? Vattel and the text- 
 writers, in laying down the proposition, could not have con 
 templated merely the case of a stoppage on a voyage from one 
 port of the enemy to another port belonging to him, because 
 the passage of an ambassador is not ordinarily of that char 
 acter. Sir William Scott evidently did not so apply it, be 
 cause he was not speaking with even the most remote refer 
 ence to any such case. He added, as we have seen, " But 
 when he has arrived, and has taken upon himself the func 
 tions of his office " ; showing that the " passage " he had in 
 contemplation was a passage to the place where he was to 
 exercise those functions. This shows also that the principle 
 is not applicable merely to an ambassador returning in a neu 
 tral vessel to his own country after his functions have ceased ; 
 nor to the case of an ambassador who, after his reception at 
 the neutral court, is proceeding to another neutral port, for 
 a temporary purpose, on private business, for that is the 
 very case of all others, if there be one, in which you cannot 
 stop him, because his character of ambassador may be held to 
 continue, and protect him, as if he were still in the neutral 
 country to which he is accredited. 
 
 The conclusion would seem to be, that he may be stopped 
 in a neutral vessel, on the high seas, on his way to the coun 
 try to which he is sent, before his arrival and reception, and 
 before, therefore, he is entitled to the protection of the neutral 
 nation to which he is accredited. And if he may be stopped 
 when proceeding directly from his own port in a neutral ves- 
 
56 
 
 sel, it is not material, so far as the right to stop is concerned, 
 that he has touched at an intermediate port, for the purpose of 
 greater supposed security, and for transshipment. His char 
 acter of hostility exists as much in the one case as in the 
 other, and it is only when he has arrived in the country in 
 which he is to exercise his office, that this character of hostil 
 ity ceases, and that of a " middle-m&n," entitled to peculiar 
 privileges, attaches to him, and the neutral territory protects 
 him. But if he is received on board at a neutral port, with no 
 circumstances to excite suspicion that any character of hostil 
 ity attaches to him, that may well affect the question whether 
 the vessel is liable to confiscation. 
 
 It is true that the case of the Caroline was one in which the 
 question related to the carriage of despatches from the Min 
 ister and Consul of France in the United States to the govern 
 ment of France ; and it has been objected that the remarks of 
 Sir William Scott on this subject were therefore mere obiter 
 dicta, that is, the expression of his opinion. But he was led 
 by the case to consider this very subject, and it is evident 
 from the context and the citation from Vattel, that it was a 
 well-considered opinion. So the text-writers, so far as they 
 speak of the principle, have received it ; for they have promul 
 gated the rule, as thus stated, without doubt or question. At 
 least, we have not seen or heard of anything to the contrary. 
 
 We are aware that in the same case Sir William Scott, 
 speaking of despatches, says : 
 
 " The neutral country has a right to preserve its relations with the 
 enemy, and you are not at liberty to conclude that any communication 
 between them can partake in any degree of the nature of hostility 
 against you. The enemy may have his hostile projects to be attempt 
 ed with the neutral state ; but your reliance is on the integrity of 
 that neutral state, that it will not favor 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 con 
 fidence in the good faith of the neutral state has a doubtful foundation, 
 
57 
 
 that is matter for the caution of the government, to be counteracted by 
 just measures of preventive policy, but it is no ground on which this 
 court can pronounce that the neutral carrier has violated his duty by 
 bearing despatches, which, as far as he can know, may be presumed to 
 be of an innocent nature, and in the maintenance of a pacific connection." 
 
 But these remarks will not apply to an ambassador for the 
 first time on his passage. If he is proceeding, in time of war, 
 upon an embassy to another nation, even a neutral nation, he 
 goes as a high official, to support the interest of his country 
 there in relation to the war, as well as other matters, and his 
 character is necessarily that of hostility. When he arrives, 
 the neutral territory will protect him ; and then perhaps it 
 is not to be presumed that his communications to the neutral 
 government are those of hostility, and that you are to place 
 reliance upon the integrity of that government. 
 
 We have stated this matter thus at large to show that, on 
 the express statement of the official organ of the Confederate 
 government, these persons were not mere peaceful passengers 
 on their private business, as they seem inclined to represent 
 themselves in their " protest " ; and that, if they had possessed 
 the official character which their commissions assumed to con 
 fer upon them, they would have been liable to capture. 
 
 But these persons were not ambassadors ; no question 
 respecting the rights of an ambassador, or the protection of an 
 ambassador, is brought directly in question by the seizure ; 
 and the case of the United States is all the stronger because 
 they were not entitled to that character. 
 
 The right to send an ambassador, and of course to confer 
 the privileges of an ambassador so far as the party sending has 
 the power so to do, is a national right, and not a belligerent 
 right. And as neither the British government, nor any other 
 government, had acknowledged the nationality of the Confed 
 erate States, the latter were not authorized to commission an 
 ambassador. 
 
 Messrs. Mason and Slidell were public agents of the Confed- 
 8 
 
58 
 
 erate States of high official standing, commissioners, bearers 
 of despatches to other agents of those States already abroad, 
 and charged with other errands of hostility to the United 
 States, designated as ambassadors, but possessing neither 
 the character nor the privileges of that office. The general 
 question then comes, May such hostile agents of the enemy 
 proceeding from the enemy s country in an enemy s vessel, 
 but, for the purpose of avoiding capture, stopping in the terri 
 tory of one neutral, and there transferring themselves to the 
 vessel of another neutral be stopped and captured while 
 they, with their despatches, are on board the latter vessel, 
 not having arrived at any territory occupied by that neutral ? 
 This is the first general question. 
 
 It may be admitted that there is no precedent which pre 
 cisely covers all the facts of this case ; and we are therefore 
 put upon the inquiry, What is the true principle applicable 
 to this new state of facts, and by which the question is to 
 be solved ? 
 
 Asking our readers to bear in mind what we have already 
 stated in regard to the rights, duties, and obligations of neu 
 trals, we proceed to further citations from the opinions and 
 judgments of Sir William Scott, expressed and rendered in 
 1807, which were not only binding decisions at the time, deter 
 mining the disposition of very large amounts of property, and 
 then received as sound expositions of law by the British crown 
 and people, but which have since been generally regarded as 
 authority by the best elementary writers in England and in this 
 country.* So far as we are aware, they commanded the entire 
 confidence of British statesmen and lawyers, until within per 
 haps the last thirty days. The estimation in which Sir William 
 Scott was held by the British government appears from the 
 fact, that he was afterward raised to the peerage, with the title 
 of Lord Stowell. Our apology for occupying so much of our 
 
 * See 3 Phill. Int. Law, 368-373 ; 1 Kent, 152, 153 ; Wheaton s Int. Law, Part 
 IV. Chap. 3, Sect. 25. 
 
59 
 
 space with these extracts is, that the volume in which the judg 
 ments are published is not of ready access to general readers. 
 Case of the Orozembo, 6 Robinson s Adm. Rep. 430-439. 
 This was a case of an American vessel, 
 
 " that had been ostensibly chartered by a merchant at Lisbon, ( to pro 
 ceed in ballast to Macao, and there to take a cargo to America, but 
 which had been afterwards, by his directions, fitted up for the reception 
 of three military officers of distinction, and two persons in civil depart 
 ments in the government of Batavia, who had come from Holland to 
 take their passage to Batavia, under the appointment of the govern 
 ment of Holland. There were also on board a lady and some persons 
 in the capacity of servants, making in the whole seventeen passengers." 
 
 " Sir William Scott That a vessel hired by the enemy for the 
 
 conveyance of military persons is to be considered as a transport subject 
 to condemnation has been in a recent case held by this court, and on 
 other occasions. What is the number of military persons that shall 
 constitute such a case, it may be difficult to define. In the former case 
 there were many, in the present there are much fewer in number ; but 
 I accede to what has been observed in argument, that number alone is 
 an insignificant circumstance in the considerations on which the prin 
 ciple of law on this subject is built ; since fewer persons of high quality 
 and character may be of more importance than a much greater num 
 ber of persons of lower condition. To send out one veteran general of 
 France to take the command of the forces at Batavia, might be a much 
 more noxious act than the conveyance of a whole regiment. The 
 consequences of such assistance are greater, and, therefore, it is what 
 the belligerent has a stronger right to prevent and punish. 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 the question has been agitated ; but it appears to me, ON 
 PRINCIPLE, to be but reasonable that, whenever it is of sufficient im 
 portance to the enemy that such persons should be sent out on the public 
 service, at the public expense, it should afford equal ground of for 
 feiture against the vessel that may be let out for a purpose so intimately 
 connected with the hostile operations. 
 
60 
 
 " It has been argued, that the master was ignorant of the character 
 of the service on which he was engaged, and that, in order to support 
 the penalty, it would be necessary that there should be some proof 
 of delinquency in him, or his owner. But I conceive that is not 
 necessary. It will be sufficient if there is an injury arising to the 
 belligerent from the employment in which the vessel is found. In 
 the case of the Swedish vessel there was no mens rea in the owner, or 
 in any other person acting under his authority. The master was an 
 involuntary agent, acting under compulsion, put upon him by the 
 officers of the French government, and, so far as intention alone is 
 considered, perfectly innocent. In the same manner, in cases of bona 
 fide ignorance, there may be no actual delinquency ; but if the service 
 is injurious, that will be sufficient to give the belligerent a right to 
 prevent the thing from being done, or at least repeated, by enforcing 
 the penalty of confiscation 
 
 " If it has appeared to be of sufficient importance to the government 
 of the enemy to send them, it must he enough to put the adverse govern 
 ment on the exercise of their right of prevention." 
 
 Case of the Atalanta, 6 Rob. Adm. Rep. 440-460. 
 
 " Sir William Scott This being the fact then, that there were 
 
 on board public despatches of the enemy, not delivered up with the 
 ship s papers, but found concealed, it is incumbent on the persons in 
 trusted with the care of the ship and her cargo to discharge themselves 
 from the imputation of being concerned in the knowledge and manage 
 ment of this transaction 
 
 "Not to have pointed them out to the attention of the captors 
 amounts to a fraudulent dissimulation of a fact, which, by the law of 
 nations, he was bound to disclose to those who had a right to examine, 
 and possess themselves of all papers on hoard. 
 
 " That the simple carrying of despatches between the colonies and 
 the mother country of the enemy is a service highly injurious to the 
 other belligerent, is most obvious It is not to be argued, there 
 fore, that the importance of these despatches might relate only to the 
 civil wants of the colony, and that it is necessary to show a military ten 
 dency ; because the object of compelling a surrender being a measure of 
 war, whatever is conducive to that event must also be considered, in the 
 contemplation of law, as an object of hostility, although not produced 
 
61 
 
 by operations strictly military. How is this intercourse with the mother 
 country kept up in time of peace ? By ships of war, or by packets in 
 the service of the state. If a war intervenes, and the other bellige 
 rent prevails to interrupt that communication, any person stepping in to 
 lend himself to effect the same purpose, under the privilege of an osten 
 sible neutral character, does in fact place himself in the service of the 
 enemy state, and is justly to be considered in that character. Nor let 
 it be supposed that it is an act of light and casual importance. The 
 consequence of such a service is indefinite, infinitely beyond the effect 
 
 of any contraband that can be conveyed 
 
 " Unless, therefore, it can be said that there must be a plurality of 
 offences to constitute the delinquency, it has already been laid down by 
 the Superior Court, in the Constitution, that fraudulent carrying the 
 despatches of the enemy is a criminal act, which will lead to condemna 
 tion. Under the authority of that decision, then, I am warranted to 
 hold, that it is an act which will affect the vehicle, without any fear of 
 incurring the imputation, which is sometimes strangely cast upon this 
 court, that it is guilty of interpolations in the laws of nations. If the 
 court took upon itself to assume principles in themselves novel, it might 
 justly incur such an imputation ; but to apply established principles to 
 new cases cannot surely be so considered. All law is resolvable into 
 general principles. The cases which may arise under new combinations 
 of circumstances, leading to an extended application of principles, an 
 cient 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 
 
 does nothing more than apply old principles to new circumstances 
 
 " To talk of the confiscation of the noxious article, the despatches, 
 which constitutes the penalty in contraband, would be ridiculous. 
 There would be no freight dependent on it, and therefore the same 
 precise penalty cannot, in the nature of things, be applied. It becomes 
 absolutely necessary, as well as just, to resort to some other measure 
 
 of confiscation, which can be no other than that of the vehicle 
 
 " The general rule of law is, that where a party has been guilty of 
 an interposition in the war, and is taken in delicto, he is not entitled 
 to the aid of the court to obtain the restitution of any part of his 
 property involved in the same transaction. It is said that the term 
 
62 
 
 interposition in the war is a very general term, and not to be loosely 
 applied." 
 
 Case of the Susan, 6 Rob. Adm. Rep. 461, note. 
 
 " The Susan, an American vessel, captured on a voyage from Bor 
 deaux to New York, having on board a packet addressed to the Pre 
 fect of the Isle of France (of which it did not appear that it con 
 tained more than a letter, providing for the payment of that officer s 
 salary). The master had made an affidavit, averring his ignorance 
 of the contents, and stating that the packet was delivered to him by 
 a private merchant, as containing old newspapers and some shawls, 
 to be delivered to a merchant at New York. The insignificance of 
 such a communication, and its want of connection with the political 
 objects of the war, were insisted upon. But the court overruled that 
 distinction, under observations similar to those above stated ; and on 
 the plea of ignorance observed, that, without saying what might be the 
 effect of a case of extreme imposition practised on a neutral master, 
 notwithstanding the utmost exertions of caution and good faith on his 
 part, it must be taken to be the general rule, that a master is not at 
 liberty to aver his ignorance, but that, if he is made the victim of 
 imposition, practised on him by his private agent, or by the govern 
 ment of the enemy, he must seek for his redress against them." 
 
 Case of the Caroline, (from which citations have already 
 been made,) 6 Rob. Adm. Rep. 461-470. 
 
 " This was a case of the same general class as the preceding, on the 
 question of despatches, found on board of an American ship, which had 
 been captured with a cargo of cotton and other articles, on freight on a 
 voyage from New York to Bordeaux. In this case the despatches 
 were those of the French Minister and the French Consul in Amer 
 ica, going to the departments of government in France." 
 
 " Sir W. Scott In this case a distinction was taken, very briefly, 
 
 in the original argument, which I confess struck me very forcibly at the 
 moment, that carrying the despatches of an ambassador, situated in a 
 neutral country, did not fall within the reasoning on which the general 
 principle is founded ; and I cannot but say, that the further argument 
 which I have heard on that point, and my own consideration of the 
 
63 
 
 subject, have but confirmed the impression which I then received of 
 
 the solidity of this distinction 
 
 " It has been asked, What are despatches ? To which, I think, this 
 answer may safely be returned : that they are all official communica 
 tions of official persons on the public affairs of the government. The 
 comparative importance of the particular papers is immaterial, since 
 the court will not construct a scale of relative importance, which in 
 fact it has not the means of doing, with any degree of accuracy, or 
 with satisfaction to itself. It is sufficient, that they relate to the public 
 
 business of the enemy, be it great or small It is not to be 
 
 said, therefore, that this or that letter is of small moment ; the true 
 criterion will be, Is it on the public business of the state, and passing 
 between public persons for the public service ? That is the question. 
 
 But if the papers so taken relate to public concerns, be they 
 
 great or small, civil or military, the court will not split hairs, and con 
 sider their relative importance 
 
 " The circumstances of the present case, however, do not bring it 
 within the range of these considerations, because it is not the case 
 of despatches coming from any port of the enemy s territory, whose 
 commerce and communications of every kind the other belligerent has 
 a right to interrupt. They are despatches from persons who are in a 
 peculiar manner the favorite objects of the protection of the law of 
 nations, ambassadors, resident in a neutral country, for. the purpose 
 of preserving the relations of amity between that state and his own 
 
 government 
 
 "It has been argued truly, 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 his own country. 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 penalty of confiscation, 
 and by giving the captors the right of that inquiry, he must submit to 
 all the inconvenience that may attend it. Ship and cargo restored 
 on payment of captors expense" 
 
64 
 
 It will be found, we think, from a careful examination of 
 these opinions, that the general principle applicable to the case 
 is, that the subject or citizen of the neutral nation may not do 
 anything directly auxiliary to the warlike purposes of a bel 
 ligerent, or, as it is expressed in other words, anything which 
 has a direct tendency to promote his warlike operations ; and 
 that the transportation of agents whose business is to promote 
 or facilitate any hostile operations, or of despatches which 
 have, or may be presumed to have, a hostile character, is a 
 rendition of aid to the belligerent which justifies the capture 
 of the persons and despatches, and if done with knowledge, 
 actual or constructive, is such a violation of neutrality as au 
 thorizes the capture and confiscation of the neutral vessel. 
 
 Speaking of the right of search, it has been said : " The 
 only security that nothing is to be found inconsistent with 
 amity and the law of nations is the right of personal visita 
 tion and search, to be exercised by those who have an interest 
 in making it." We have here another expression of the gen 
 eral principle which regulates neutral rights and duties. It is 
 not merely that the neutral is not warranted in carrying this 
 or that article, or this or that person. He is not to carry any 
 thing which is inconsistent with the amity which subsists 
 between his nation and the belligerent, and which he should 
 maintain toward the belligerent. 
 
 Having ascertained the principles which are applicable, we 
 turn again to the facts of this case. Probably no one doubts 
 that Messrs. Mason and Slidell were the public agents of the 
 Confederate States, charged with all manner of duties of a bel 
 ligerent character. But Great Britain may reasonably ask for 
 some evidence of the fact, as a justification for their removal 
 from the Trent. The proof will doubtless be found to be 
 abundant, but our space permits only two or three sugges 
 tions. In the first place, there is the message of Mr. Davis, in 
 which he states that they are commissioned, and speaks of 
 them as " Ministers," showing them to be public agents for 
 
65 
 
 the promotion of the interests of the revolutionary govern 
 ment. 
 
 In the next place, there is a conclusive presumption that 
 their agency was of a belligerent character, because the people 
 of the Confederate States, being in rebellion, waging a civil 
 war, and acknowledged only as a belligerent power, whatever 
 is to be done for their success is necessarily of a belligerent 
 character. The voyage of their agents to Europe was " di 
 rectly auxiliary to the warlike purposes " of the Confederacy, 
 and as hostile as if they had been officers or soldiers on their 
 way to aid the enemy. An attempt merely to procure an ac 
 knowledgment of the independence of the Confederate States, 
 while the United States are surrounding them with forces by 
 land and sea, is of itself an act of hostility to the United 
 States. The object could only be encouragement and aid in 
 the prosecution of the war, as there is no practical indepen 
 dence. 
 
 Similar remarks apply to the despatches. That such docu 
 ments were on board is not now concealed. The failure of 
 Captain Wilkes to find them has been a matter of exultation. 
 Lieutenant Fairfax was not bound to search for them after the 
 captain of the Trent refused to show his passenger list or to 
 give any information. He might well suppose that they were 
 then beyond reasonable search, perhaps concealed by some of 
 the ladies connected with the agency, in what the Boston Post, 
 speaking of the secret transmission of traitorous correspond 
 ence by Secession ladies in- the vicinity of Washington, 
 termed " the holy precincts of their nether garments." The 
 Confederate States had no minister, nor any consul, in Eu 
 rope ; but they had agents there actively attempting to pro 
 cure an acknowledgment of their independence, and engaged 
 in purchasing and transmitting munitions of war to the South 
 ern ports. The despatches, then, must be presumed to relate 
 to these subjects. 
 
 The fact that the voyage of the neutral vessel was from one 
 9 
 
neutral port to another would not have exempted these per 
 sons from capture, even if they had been ambassadors from a 
 recognized nation, their mission being of a hostile character. 
 A fortiori, it cannot exempt them when they are mere agents. 
 The character of hostility which necessarily attaches to them 
 as the public agents of a mere belligerent power, proceeding 
 with despatches which from the nature of the case must be 
 presumed to be to hostile agents and for hostile purposes, 
 shows a right to capture them, even if an ambassador might 
 be exempted on such a voyage because he was a " middle- 
 man." We have the distinct opinion of Sir William Scott that 
 the transportation of civilians may be ground of forfeiture. 
 
 The neutral vessel was rendering aid in the accomplish 
 ment of these hostile purposes, just as much as she would 
 have been if her voyage had been direct from the belligerent 
 port. The neutral right, therefore, cannot protect the hostile 
 agent, whether there was or was not knowledge. The want 
 of knowledge might protect the vessel. But here was ample 
 evidence to charge the captain of the Trent with full knowl 
 edge of the character of hostility ; and it may probably be 
 shown that the embarkation at Havana was with sufficient 
 pomp and circumstance " to constitute plenary evidence, if 
 there were no other.* 
 
 The Trent was a private passenger packet, with the advan 
 tage of a contract to carry the mails. She was a common 
 carrier of passengers, and perhaps of goods also, but had no 
 more of the character of a government vessel than the rail 
 road car which carries the mail and the mail-agent, under a 
 contract with the postmaster-general, has the character of a 
 government vehicle. She was therefore liable, under the 
 circumstances, to capture, and to confiscation also. 
 
 But here comes another, and it would seem, from recent 
 suggestions, the main point to be considered. The Trent was 
 
 * See Appendix, Note B. 
 
67 
 
 not captured. It is said that for this reason the proceedings 
 are all irregular, and that a demand for a delivery of the 
 prisoners is to be made by the British government, founded 
 upon the neglect to make the capture, and the consequent 
 lack of any proof of a right to take the persons. This is quite 
 too narrow a view of the matter, and we shall not believe, until 
 we have demonstrative assurance, that the law officers of the 
 Crown will place themselves upon such a small and slippery 
 foundation. We shall not enlarge upon the ill grace with 
 which Great Britain would urge the objection, not that 
 Mason and Slidell could not be taken, but that Captain 
 Wilkes did not capture the steamer, send her in for trial and 
 confiscation, and in so doing delay her Majesty s mails, and de 
 range the business of all the passengers and others concerned 
 in the regular trip of the vessel, that there was therefore 
 no adjudication of a prize court to show that the persons could 
 be captured, and no other evidence would be received. Nor 
 need we show what a gross outrage it would be to fasten a 
 quarrel upon the nation whose officer had been guilty of such 
 an act of comity and favor. If blood ever cries to Heaven for 
 vengeance, it would be the blood shed in a war having such a 
 foundation. And if all Christendom did not cry, Shame ! it 
 would show that the part of it which failed in the performance 
 of that duty to humanity had lost all consciousness of the 
 difference between right and wrong. Such a failure to do 
 Great Britain an injury may possibly be made a pretext for 
 war. It can never be the foundation of a point of honor, 
 requiring an apology. 
 
 But it is argued, that in no other way than by sending in 
 the vessel can it be shown by regular proof that the right to 
 seize these persons existed ; and therefore, that, by reason of 
 the failure to send in the vessel, we cannot establish the right 
 of seizure. It is alleged that it has always been the law of 
 the world, that every cruiser making a seizure on board of a 
 vessel shall bring the vessel in, and subject the lawfulness of 
 
68 
 
 the seizure to adjudication in a prize court ; and that there is 
 one excuse only, and that is a want of force on the part of 
 the captors to man the prize. Yery well, we have one case, 
 then, in which it is not necessary to establish the right to seize, 
 by the decision of a prize court. Now suppose that Captain 
 Wilkes had seized the despatches, and, taking them and 
 Messrs. Mason and Slidell on board of the San Jacinto, (as 
 we suppose he had a right to do, for safety, if he had a right 
 to seize the Trent,) had then put a prize crew on board of her, 
 and that she had afterward foundered at sea, or been cap 
 tured by a Confederate privateer. The proceedings in ad 
 miralty for confiscation are in rem; and the thing being gone, 
 no evidence of the right to seize could be had through the 
 adjudication of a prize court. This would not have discharged 
 the persons, nor forfeited the right to withhold the despatches. 
 Here, then, seems to be another case. 
 
 We readily admit that the officer making a seizure cannot 
 confiscate the property. If a judgment of confiscation is 
 sought, the property must be libelled. The vessel is sent in 
 as prize, and becaiise she is prize, and is to be disposed of as 
 prize ; and not because she is necessary as evidence. Evidence 
 other than that found on board the vessel may be received. 
 (6 Eobinson, 351, Case of the Romeo.) 
 
 But we have seen by the opinion of Sir William Scott, that 
 despatches are not the subject of confiscation ; and it is at least 
 equally clear that Messrs. Mason and Slidell are not so. If 
 the vessel had been sent in, there could not have been any pro 
 ceeding" in the prize court against them or the despatches, and 
 of course no judgment against either. It is true that, the vio 
 lation of neutrality by the transportation of the persons and 
 of the despatches being the alleged ground of the seizure 
 and of the claim of forfeiture, the question whether the per 
 sons were to be regarded as hostile agents, whether the de 
 spatches were of a hostile character, and all other questions 
 affecting the right to seize, would be directly before the court, 
 
69 
 
 and would be determined there, for the purposes of that case; 
 that is, for the purpose of deciding 1 whether the vessel was 
 liable to confiscation or seizure, but no further. The judgment 
 of the prize court would not operate upon the persons or papers. 
 While, upon the ordinary principles of law, in the absence 
 of fraud or gross mistake, Great Britain would be bound to 
 respect and abide by the decree of the court, so far as regarded 
 the vessel, as the United States have done in relation to the 
 decisions of Sir William Scott, there would be nothing in the 
 judgment of the court to prevent that government from claim 
 ing of the United States the persons and papers, on evidence 
 to be adduced in support of the claim, if it was believed that 
 the opinion of the prize court was erroneous. 
 
 The distinction between evidence necessary to prove an 
 issue, and the matter in issue, is familiar to every sound law 
 yer. A man is indicted for stealing the property of A. B., and 
 in order to procure a conviction it must be proved, to the sat 
 isfaction of the jury, that the property alleged to have been 
 stolen was the property of A. B., and this being done, the de 
 fendant is convicted. But this will not prevent C. D. from 
 afterward sustaining a suit, to recover the property or its 
 value, on evidence that it in fact belonged to him. It may be 
 said that the reason is, that C. D. was not a party to the pro 
 ceedings under the indictment, and so not bound by the 
 proceeding there ; but that in the prize court, where the pro 
 ceedings are in rem, all persons interested in the property are 
 regarded as parties, and bound by the decree. Admit it. But 
 they are parties only as to the matter in issue, and not as to 
 the evidence ; and they are bound therefore only so far as the 
 judgment goes, that is, by the confiscation of the vessel. 
 
 We claim, then, to have shown that the seizure, and even the 
 confiscation, of the vessel would have determined nothing in 
 relation to Messrs. Mason and Slidell, except for the purpose 
 of the inquiry, Prize or not prize ? that the judgment in the 
 prize court would in no wise have operated upon them ; and 
 
70 
 
 that the opinion which that court entertained, so far from be 
 ing conclusive on the British government in relation to their 
 capture, would not, in a legal point of view, be even prima facie 
 evidence. In a diplomatic correspondence between that gov 
 ernment and the United States, it might, if it existed, be used 
 as evidence ; but other evidence would be equally admissible 
 on either side. On the other hand, the judgment of the prize 
 court releasing the vessel, based upon the expressed opinion 
 of the judge that the persons were not liable to capture, and 
 that the neutral vessel was in "the regular exercise of her 
 rights, while it may have furnished ground for an application 
 to the government for their discharge, would not have been 
 legal evidence of a right to their liberty. 
 
 We maintain, therefore, that all questions respecting the 
 legality of the seizure of persons on board of neutral vessels, 
 so far as they affect the persons themselves, or the relations of 
 the government to which they belong and that making the 
 seizure, are either legal questions for courts of common-law 
 jurisdiction, or political questions to be settled by negotiation, 
 if they can be settled in that mode. 
 
 If these positions are correct, the conclusion cannot be es 
 caped that the capture of the vessel was not necessary, either 
 as matter of substance or of form, in order to justify the cap 
 ture of the persons. "Lex neminem cogit ad vana seu inu- 
 tilia" " Utile per inutile non vitiatur" 
 
 But it may be asked, Has the captain of a belligerent 
 cruiser a right to overhaul the merchant-vessel of a neutral 
 nation, and take men out of her, on the plea that they are 
 enemies, without any adjudication as to the right to make the 
 capture ? We answer, Certainly, if he can make proof of the 
 right afterward. There can be no adjudication at the time. 
 He does it on his responsibility and the responsibility of his 
 government, if the right cannot be established. If he may 
 seize vessel, crew, cargo, and passengers on this responsibility, 
 and send them all into port, surely he may seize the hostile 
 
71 
 
 passengers who give occasion for the capture. In fact, if 
 Captain Wilkes had seized the vessel, it would have been his 
 duty to take Messrs. Mason and Slidell on board his own 
 vessel for security, and on his arrival to report, and deliver 
 them into the custody of the government, which might at 
 once have released them, and this without affecting the pro 
 ceedings against the vessel. 
 
 Further, a party who has a right may waive that right ; 
 certainly, if others are not thereby prejudiced. The only 
 parties interested in favor of the capture of the Trent were 
 the United States and the officers and crew of the San Ja- 
 cinto. Captain Wilkes, in behalf of the United States, and 
 for himself, his officers, and crew, waived the right to make 
 the capture ; and the government has sanctioned that pro 
 ceeding. Is Great Britain prejudiced? 
 
 The speeches at the banquet of the Lord Mayor of London 
 certainly did not indicate a rupture of the friendly relations 
 between the United States and Great Britain within a very 
 short period ; but it must be admitted that this furnishes no 
 absolute assurance. 
 
 If Great Britain insists upon the delivery up of the pris 
 oners, and the Cabinet at Washington surrender them upon 
 the ground that the demand is a distinct abandonment of the 
 doctrines which she and her prize courts have heretofore so 
 persistently maintained, the people will acquiesce, and she 
 may yet believe that she has gained nothing by the course 
 thus pursued. If she demand an apology because the United 
 States have merely followed out those doctrines, we venture 
 the opinion that she will not get it. 
 
APPENDIX. 
 
 NOTE A. PAGE 32. 
 
 THE United States have for a long period, in treaties and otherwise, 
 endeavored to procure the introduction of certain principles into the 
 law of nations, different from those heretofore held by Great Britain, 
 respecting the rights of neutrals, among them, the principle that the 
 neutral flag should cover the property of an enemy not contraband of 
 war. The Congress at Paris in >856 adopted this with other princi 
 ples ; and the United States having offered to become a party to that 
 adoption, the principle may perhaps be recognized hereafter, although 
 the accession of the United States to the declaration of the Congress at 
 Paris has not been received. 
 
 NOTE B. PAGE 66. 
 
 The following extracts show that Dr. Phillimore recognizes the right 
 of the belligerent to search and seize where the voyage is from one 
 neutral port to another neutral port. He puts that as a case where 
 there is less to excite the vigilance of the master of the neutral vessel, 
 and one where some allowance should be made for any imposition prac 
 tised on him. 
 
 " It is indeed competent to those intrusted with the care of the ship on 
 board of which such despatches are found, to discharge themselves from the 
 imputation of being concerned in the knowledge or management of the trans 
 action. But the presumption is strong against the ignorance of the master of 
 the ship ; and when he has knowingly taken on board a packet or letter ad 
 dressed to a public officer of a belligerent government, the plea of the insig- 
 
 10 
 
74 
 
 nificance of the communication, and its want of connection with the political 
 objects of the war, will not avail him ; nor, except perhaps in an extreme 
 case of imposition practised upon him, will the plea of ignorance of the con 
 tents of the despatches avail him : his redress must be sought against the per 
 son whose agent or carrier he was. 
 
 " With respect to such a case as might exempt the carrier of despatches 
 from the usual penalty, it is to be observed that where the commencement of 
 the voyage is in a neutral country, and to terminate at a neutral port, or at a 
 port to which, though not neutral, an open trade is allowed, in such case there 
 is less to excite the vigilance of the master; and therefore it may be proper 
 to make some allowance for any imposition which may be practised on him. 
 But where the neutral master receives papers on board in a hostile port, he 
 receives them at his own hazard, and cannot be heard to avow his ignorance 
 of a fact with which, by due inquiry, he might have made himself acquainted." 
 3 Phill. Int. Law, 374 (published in 1857). 
 
 It may be admitted that in such case, if, without knowledge on the 
 part of the master, and with nothing to excite suspicion, he, in the or 
 dinary course of his business, carries contraband goods intended for a 
 belligerent, or the officers, soldiers, agents, or despatches of a bellige 
 rent, this should not furnish cause for the confiscation of the vessel. 
 But neither the fact that the immediate transit was from one neutral 
 port to another, nor the want of knowledge of the master, furnishes a 
 reason why the contraband goods intended for the belligerent, or the 
 persons in his service, or his despatches, should have active transporta 
 tion, for the purposes of the war, by the neutral vessel, and at the same 
 time immunity from capture because of her neutrality. The vessel 
 cannot be regarded as the territory of the neutral under such circum 
 stances, for territory is not a vehicle of transportation. 
 
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