THE CASE OF THE TRENT. LETTER II.
ENGLISH COMPLAINTS JUDGED BY ENGLISH POLICY AND JURISPRUDENCE.
SIR, —I endeavoured to show in my previous letter that, on the prin- ciples laid down by their own jurists and statesmen, the seizure of the Confederate Commissioners by the American Federals is perfectly un- justifiable. If, however, we take now the other aspect of the case, and endeavonr to determine how far, upon the footing of our own prin- ciples and practice, we are entitled to complain of the proceeding, the question is one of much more doubtful solution.
1. We cannot complain of the exercise of the right of search, as a belligerent right, seeing that the Queen's Proclamation has expressly recognized a state of war. 2. We have no adequate ground for claiming that the Trent, us'a packet carrying the Royal mails, was exempt from search in the same manner as if she had been a government vessel. The international law of the future may very likely recognize such an exemption. But the establishment of packet-ships by private companies, carrying mail-bags by contract with a government, and under the control of its officers, yet not chartered by or in its service, and taking pas- sengers and freight at the discretion and for the sole benefit of private persons, is a new fact with which international law has not yet had judicially to deal. Any opinion on the subject of Haute- fenille or Lawrence is simply an ingenious point made, a ground of argument for an advocate, not a basis of claim by a state.
3. The doctrine that "a neutral ship is a portion of the territory of a neutral sovereign," was indeed proclaimed in the House of Commons by Sir William Molesworth seven years ago. But that doctrine is one which until that period we had always declined to admit, against which our whole past practice is a protest. The right to search for deserters, so much discussed during the war with France, and which probably. formed the main ground of the war with America in 1811, falls to pieces before it. If we could not land on American shores to search for deserters, and American ships were portions of American territory, no more could we search them. And so late as 1842, whilst admitting the hardships which might arise from the practice, Lord Ashburton, under instructions from his govern- ment, declined to waive the right. Is a House of Commons speech by a Secretary of State for the Colonies of sufficient weight to nullify what is claimed as a prerogative of the Crown ? Until, therefore, that prerogative is authoritatively abandoned, the doctrine of "neu- tral ship, neutral territory" cannot be considered as forming part of English international law. It is distinctly rejected by various jurists, —by Reddie,—by Tetens the Dane, though belonging to a small maritime power which would be essentially benefited by its adoption. It cannot ever be admitted in its literal fulness. For if the ship is part of the territory, then, as has been well observed, the surrounding water within the marine league-line is so, also, and no right of search, even in its most mitigated form of " visit" or " approach" would be possible.
4. The right of search being thus justified by the state of war, the character of the vessel not being a sufficient objection to its exercise, the claim of "neutral ship, neutral territory," being inconsistent with the exercise of an as yet unabandoned prerogative of the British Crown, the next question seems to be, whether the Trent was upon such a voyage that the Ccmmissioners could be taken out of her. Now there is an old and strong case upon the subject, which I am surprised not to have seen more dwelt upon, that of the Hendrie and Aback (Marriott's Admiralty Reports, p.96). It belongs to a period very analogous to the present one, that of the war of the American revolution. A ship, originally English, but now Dutch, was taken
loing out to the Dutch island of St. Eustatia in the West Indies, aden with powder and guns, and with foreign officers going to enlist in the American service. Although it was suggested that the ship was really to proceed to New England, Sir George Lee ordered her to be restored. "It would be too high for any such court ofjustice
i as this," he said, " to assert that the Dutch may not carry in their own ships to their colonies everything they please; whether arms or ammunition or any other species of merchandise, provided they do it with the permission of their own laws ; and if they act contrary to them, I am no judge of the laws of Holland" (p. 137). The fact of the venture in the above case, both as to goods and persons, having been of Dutch sympathizers, and not of Americans, makes, of course, a difference between it and any in which the voyage from neutral port to neutral port should be that of actual belligerents. Nor is to be denied that later decisions by Lord Stowell cast at least a doubt upon the judgment, so creditable to the fairness of the British Admiralty. The case of the Orozembo (6 C. Rob. 430) was that of a neutral ship, chartered nominally from Lisbon to Macao, i.e. from neutral port to neutral port,but in reality meant to carry Dutch military and civil officers to Batavia, a port belonging to Holland, a belligerent
power. She was dcclgred subject to condemnation as a transport in the Dutch service. In his judgment, Lord Stowell did not, as Ame- rican jurists have done, limit to the conveyance of military persons the possible delinquency of neutrals. " In this instance,' said he, " the military persons are three ; and there are, besides, two other persons, who were going to be employed in civil capacities in the Government of Batavia. Whether the principle would apply to them alone, I do not feel it necessary to determine. I am not aware of any case in which that principle has been agitated; but it appears to me, on principle, to be but reasonable that, whenever it is of suffi- cient importance to the enemy that such persons shots d be sent out on the public service, at the public expense, it should afford equal ground of forfeiture against the vessel that may be let out for a purpose so in- timately connected with the hostile operations." Granting all the difference there is between carrying persons in the employ of a belligerent to his own colony, and to a neutral country, it. cannot be denied that the view, which. Lord Stowell thus went out of his way to set forth, affords at least a strong ground of argument in favour of the act of the San Jacinto. In Messrs. Mason and Slidell we have, to all appearance,persons whom it is of sufficient importance to the belligerent Confederates to send out "in the public service, at the public expense," to foreign countries, presumably with a view to the better carrying on the war. There is no ground for supposing that the master of the Trent was ignorant of their charac- ter; but even if he bad been, Lord Stowell warns us a little further on that "in cases of bond fide ignorance, there may be no actual delin- quency, but ft the service is injurious, that will be sufficient to give the belligerent a right to prevent the thing from being done, or at least re- peated, by enforcing the penalty of confiscation." No doubt, in lay- mg down positions-like these, Lord Stowell lays himself open to the reproach addressed to him by French jurists, of starting, not from the duty of the neutral, but from the right of the belligerent, which right he seems to make coextensive with the injury to be avoided. But such is the nearest approach we have to English law on the sub- ject—such are the words of our greatest Admiralty judge. 5. Is any argument to be drawn from the inviolability of the am- bassador ? The same Lord Stowell, in a subsequent case (the Caro- line,6 C. Rob. 461), expressly tells us that " the limits that are assigned to the operations of war' against ambassadors, " 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 o fyour enemy on his passage." And Vattel, no doubt, does say (Bk. iv. ch. v. s. 64) that war " allows us to cut off from an enemy all his resources, and to hinder him from sending ministers to solicit assistance." Dr. Phillimore, in his Commentaries. upon International Law (1857), quotes the passage from Lord Stowas judgment. Would it not be doing what England has often been re- proached for doing, interpolating the law of nations, to read that passage with the proviso, "except it be by a neutral ship ?"
6. But, it may be replied, the Commissioners were not seized as ambassadors but as rebels and traitors. Can the cases in reference to belligerents be applicable? .
Now it is we ourselves, unfortunately, who, in the war of inde- pendence with America, have set the example to the Americans of applying certain belligerent rights to what we still persisted in term- ing rebellion. The Act of 16 Geo. III., c. 5 (1776), declaring that certain colonies had "set themselves in open rebellion," proceeded, to enact " that all ships and vessels of or belonging to the inhabitants of the said colonies, together with their cargoes, apparel, and furni- ture, and all other ships and vessels whatsoever, together with their cargoes, apparel, and furniture, which shall be found trading in any port or place of the said colonies, or going to trade, or coming from trading In any such port or place, shall become forfeited to his Majesty, as if the same were the ships and ejects of open enemies, and shall be so adjudged, deemed, and taken in all Courts of Admiralty, and in all other Courts whatsoever." And accordingly, foreign ships trading with the revolted Americap colonies were freely confiscated, whilst at the sametime Americans themselves, whencaught, were freely treated as rebels. Assuming, therefore, that an Act equivalent to that of 1776 has been passed by Congress, it seems difficult to hold that any claim by the United States of a belligerent right of search or seizure would estop them as against us from treating afterwards as rebels or traitors any Confederates who might lawfully fall into their hands, even though going out as ministers, just as in 1780 we, having caught Henry Laurens on his way but (though certainly not on a Dutch ship) as American minister to Holland, shut him up in the Tower as a rebel and traitor.
7. And our own principles as to allegiance estop us from denying any such right. This results as an a fortiori conclusion from the position we have taken up as to the right of search for deserters. To go no further back tlmn 1842, when Mr. Webster had insisted that the doctrine of transferable allegiance was that of American public law, Lord Ashburton replied that the principle, that all subjects are bound to serve their country in case of necessity, " is not, as is some- times supposed, any arbitrary principle of monarchical government, but one founded on the natural duty of every man to defend the life of his country; and all the analogy of your laws would lead to the conclusion that the same principle would hold good in the United States, if their geographical position did not make its application un- necessary." Thus one of our own statesmen has clearly intimated his belief that the right to allegiance is retained by the American constitution.
8. Let me, lastly, observe that, although I deem the point taken by the law officers, of the absence of judicial investigation, to be the best that could have been chosen under the circumstances, yet it is
precisely what. was dispensed with by our officers in the seizure of deserters ; and if the Americans should argue, from the right of alle- giance to the right of search, from the right of search to the right of seizure of American subjects without form of trial, they would simply be following what I believe to have been our own vicious' chain of reasoni g, and most offensive practice, in former days. Nor can we forget, as has been very fairly urged on the American side, that the irregularity of taking out the Commissioners from a neutral ship without form of trial, has really minimized the inconvenience to the neutral, which would otherwise have had to be taken into an American port, entailing loss of months instead of hours to all con- cerned.
To sum up, then, this side of the argument, I cannot help saying that, judging by our own principles of policy and international law, our grounds of complaint for the stoppage of the Trent and seizure of the Commissioners are but slender. I believe a violation of interna- tional law was committed by seizing them on a voyage between neutral port and neutral port, and that, even though argument may be drawn from Lord Stowell's judgment in the Orozembo case to justify that seizure, the point is at least too doubtful for any but ju- dicial interpretation. What there is in the Trent difficulty beyond that "doubtful point" remains to be considered, A Banumna OF LiNcoLN's INN. 3, Old-square, Nov. 9, 1861. A Banumna OF LiNcoLN's INN. 3, Old-square, Nov. 9, 1861.
[We insert this able letter with much pleasure, but we must express our dissent from our correspondent's estimate of the character of the legal case in our favour. Lord Stowell's judgments are avowedly the judgments of an authority favourable to belligerents ; and yet he lays down strongly in the Caroline case that the presumption is always in favour of the harmless character of communications between either belligerent and a neutral. The law assumes, he says, the good faith of a neutral even when there is reason to suspect that the belligerent is trying to shake it. Stich a presumption is not only legally justifiable, but is also the true policy of international law.—En. Spectator,]
Previous page
