THE AMERICAN PROCEEDING RIDGED EX AMERICAN STATESMEN AND AMERICAN JURISTS.
SIR,—The late stoppage of the Trent, and the seizure of the Con- federate Commissioners, have given a sudden interest amongst us to the respective rights of neutrals and belligerents. I do not propose here to go into elaborate disquisition on the law itself. But in order that as between England and America both parties may the better come to an understanding together, I should wish to show, on the one hand, how thoroughly pledged is America by her past history to respect those rights of neutrality, which she seems now to hold cheap ; on the other, what ground of complaint England has given herself in former days, and how near her jurisprudence goes towards justifying the act now complained of. A more extraordinary inter. version of parts than that afforded by the two nations is scarcely re- corded in history.
If there is one point, indeed, that has been insisted on by America in her intercourse with us, And especially during those long discussions, which we have had srith her as to applying the so-called "right of search" to the prevention of the slave trade, it is that that right is one of war only, and not of peace. In a correspondence on the subject, conducted in '1823 between Mr. J. Quincy Adams, afterwards President, then Secretary of State under President Monroe, and Lord Stratford de Redeliffe, then Sir Stratford Canning, which will be found copiously quoted from in Dr. Wheaton's Enquiry into the Validity of Lie British Claim to a Right of Visitation and Search of American Vessels suspected to be engaged in the African Slave Trade, also embodied in his Hist Modern Law of Nations, Mr. Adams—who mintt,OF
the exponent, not of Southern, but of Northerikitir• that the American objection. to the right oftski*
"consisted in the very nature of the right of search at sea, which, as, recognized or tolerated by the usage of nations, was a right exclusively of war, never exercised but by an outrage upon the rights of peace."
It follows from hence, of course, as was at once felt in this country, that by the simple act of boarding the Treat the Federal Government has justified the Queen's proclamation, so much inveighed against by the North, and has practically admitted the Southern Confederation to be a belligerent power. If there is no war, the act of search is an act of piracy ; if it be not piracy because there is war, then are the Confederates mere rebels no longer. But to proceed:
" The vessel of the navigator is his dwelling-house, and like that, in the sentiment of every people 'that cherish the blessings of per- sonal liberty and security, ought to be a sanctuary inviolable to the hand of power, unless upon the most rigorous personal responsibility of the invader. Search at sea, as recognized by all maritime nations, is confined to the single object of finding and taking contraband of war. By the law of nature, where two nations conflict together in war, a third remain ng neutral retains all its rights of peace and friendly intercourse with both. Each belligerent, indeed, acquires by war the right of preventing a third party -from- administering to his enemy the direct and immediate materials of war, and, as incidental to this right, that of searching the merchant vessels of the neutral on the high seas to find them. Even thus limited, it is an act of power which nothing but necessity can justify, inasmuch as it cannot be exercised but by carrying the evils of war into the abode of peace, and by visiting the innocent with some of the penalties of Writing, about twenty years later, as Secretary of State, to Lord Ashburton, after the treaty of Washington, 8th August, 1842, Mr. Webster (a Massachusetts man) uses equivalent language " Every merchant vessel on the seas is rightfully considered as part of the territory of the country to which it belongs. The entry, therefore, into such at vessel, being neutral, by a belligerent, is an act of force, and is print' facie a wrong, a trespass which can be justi- fied only when done for some purpose allowed to form a sufficient justification by the law of nations."
It is clear from the above passages that, according to the doctrines of her moat eminent Northern statesmen, America is bound to the strictest construction of any claim of the right of search, and above all is pledged against any direct extension of it. Her rule is, as indicated by Mr. Adams, that, "by the law of nature," a neutral vessel retains all its " rights of peace and friendly intercourse " with two belligerents. England has, therefore, a right to carry on such friendly intercourse as well with belligerent Confederates as with belligerent Federals ; her ships have a right to take on board friendly passengers from either party.
Unless, therefore, it can be clearly proved that the Confederate commissioners came within the law of contraband, America was bound to respect them. It is admitted on all sides that only goods can properly he a subject-matter of contraband ; thatpersons can only be treated under that head by analogy, or as quasi-contraband. It is equally admitted that, by analogy to military stores, military persons in the service of the belligerents cannot be lawfully conveyed by a neutral. But the extension of any such right of seizure to civilians is excluded by implication, under American jurisprudence, in a cele- brated case of the Commerce (1 Wheaton, p. 382), a Swedish ship taken by an American cruiser whilst carrying i provisions from Ire- land to Spain for the use of the British forces n that country. In delivering the opinion of the majority of the Court (four to three), Mr. Justice Story said, "If the neutral be guilty of fraudulent or un- neutral conduct, or has interposed himself to assist the enemy in carrying on the war, he is justly deemed to have forfeited his title to freight. Hence the carrying of contraband goods to the enemy, the spoliation of papers, and the fraudulent suppression of enemy interests, have been held to affect the neutral with the forfeiture of freight; and in cases of a more flagrant character, such as carrying despatches or hostile military passengers, an engagement in the transport service of the enemy and a breach of blockade, the penalty of confiscation of the vessel has also been inflicted." And again further on : "It has been solemnly adjudged that being engaged in the transport service or in the conveyance of military persons in his employ are acts of hostility which subject the property to confisca- tion." And Chief Justice Marshall, in delivering the opinion of the minority of the Court, after dwelling, in somewhat less absolute terms than Justice Story, on the case of despatches, says, "To transport troops or military persons belonging to the enemy from one place to another has also been determined to subject the-vessel to condemna- tion." It is difficult to suppose that either of these excellent lawyers had deemed the conveyance of civilians to be a breach of neutral duty, they would not have alluded to it. In perfect accord- ance with this view, we find that Dr. Wheaton, in his "Elements of International Law," says nothing as to a breach of neutrality being committed by carrying civilians.
Can it be argued that the seizure of Messrs. Slidell and Mason was justifiable on the ground that they were, in fact, sent as ambassadors ? But any claim to stop an ambassador in transitu is set at nought by Mr. Webster's doctrine, that "every merchant vessel on the seas is rightfully considered as part of the territory of the country to which it belongs." What jurist has ever ventured to assert the right of a belligerent to stop :his enemy's ambassador on a neutral territory ? tip • tar 'Nom this, any violence exercised by the neutral power itself smeinst an s of either belligerent when in transits through one of t always been considered as a grievous breach of the law of nations. England might have warned off all Confederate emissaries from her shores or ships ; the commander of the Trent might have refused to receive them on board ; bat from the moment they were there—according to Mr. Webster's showing—they were on British soil as much as if they had been in London, inviolable without breach of peace by any Federal officer. This is in no way discordant, but, on the contrary, perfectly consistent with the pro- hibition to neutrals of carrying military passengers in the belligerent service, and with the whole law of contraband. It is, of course, a breach of the laws of neutrality to make warlike preparations in one country for the invasion of another with which it is at peace, whether by collecting munitions of war or by harbouring or disciplining soldiers. But it never has been held a breach of those laws to erow or prepare ordinary articles of consumption for either belligerent, to shelter its civilians, to receive its ambassadors. As respects ambas- sadors in particular, it is palpable that, even if sent for a hostile purpose, yet are they necessary media for the eventual conclusion of peace. As the civilian ambassadors, or agents of a belligerent within a neutral territory, therefore, the Southern Commissioners were, on the principles of American jurisprudence, beyond the reach of seizure. Could it be alleged,indeed,in 'defence of the act, that they were rebels? This would at once, by denying the state of war, render the search illegal, according to the words of Mr. Adams, that the right of search is one " exclusively of war." But passing over this, it is not less evident that the whole doctrine of American statesmen and jurists in reference to our claim to a right of search for deserters expressly ne- gatives this. Thus President Madison, in his confidential message of June, 1812, says, "British cruisers have been in the continued practice of violating the American flag on the great highway of na- tions, and of seizing and carrying off persons sailing under it, not in the exercise of a belligerent right founded on the right of nations, against an enemy, but of a municipal prerogative over British sub- jects. British jurisdiction is thus extended to neutral vessels in a situation where no laws can operate but the law of nations and the laws of the country to which the vessels belong."
So Mr. Webster, in 1842 : " A Brit,* cruiser enters an American merchant vessel in order to take therefrom supposed British subjects, offering no justification therefor under the law of nations, but claiming the right under the law of England respecting the king's prerogative. This cannot be defended. English soil, English territory, English jurisdiction, is the sphere for the operation of English law. The ocean is the sphere of the law of nations, and any merchant vessel on the seas is by that law under the protection of the laws of her own nation, and may claim immunity, unless in cases in which that law allows her to be entered or visited. . . . English law cannot be of force beyond English dominion. Whatever duties or relations that law creates between the sovereign and his subjects can be enforced and main- tained only within the realm or proper possessions and territory of the sovereign." It will thus be seen that, so far as the seizure of the Commissioners may be sought to be justified on the ground of their being amenable to American law, Mr. Webster's reasoning is a complete answer to such a plea. " American soil, American territory, American jurisdic- tion," may we say with him, " is the sphere for the operation of American law; the ocean is the sphere of the law of natiohs."
So again Dr. Wheaton, in his "Elements" (pp. 154-5), says : 4 "As to .private vessels belonging to the subjects of a foreign na- tion, the right to search them on the high seas for deserters and other persons liable to military and naval service, has been uniformly asserted by Great Britain, and as constantly denied by the United States."
But let us carry the case to still more untenable lengths. Let us suppose that thecarriage of despatches (where are they ?), even from neutral port to neutral port, was the primary offence, and that it was only incidentally to the search for these that the Commissioners were seized. Here again American jurisprudence steps in to inform us that the case was one in which the carriage of despatches could not be complained of. "It is conceived," says Mr. W. B. Laurence, in a note to his edition of Wheaton (I quote in this instance from the Times, not having been able to get a sight of the work itself), " that the carrying of despatches can only invest a neutral vessel with a hostile character in the case of its being employed for that purpose by the belligerent, and that it cannot affect with criminality either a regular postal packet or a merchant ship which takes a de- spatch in its ordinary course of conveying letters; and of the contents of which the master must necessarily be ignorant." Yet take the last step. Suppose the carriage of the despatches actually fraudulent, the vessel lawfully searched and liable to seizure, the Commissioners themselves guilty as rebels. Btill an American president, in anticipatory agreement with our law officers, will con- demn the act in the plainest terms. "Could the seizure of British subjects in such cases," wrote Mr. Madison in his before-quoted messagd of June, 1812, " be regarded as within the exercise of a belligerent right, the acknowledged laws of war, which forbid an article of captured property to be adjudged with- out a regular investigation before a competent tribunal, would im- periously demand the fairest trial when the sacred rights of persons were at issue. In place of such a trial, these rights are subjected to the will of every petty commander." With these clear and apt words I leave this branch of the subject.
I am, Sir, your obedient servant,
A BAR33.1STBS. Or LINCOLN'S INN.
8, Old-square, Dec. 8, 1861.
Previous page
