their property. Dead men cannot avenge the possession of the Border districts; and if themselves, and their survivors may forget the Government no longer expects to rethem; but confiscation is an ever-open sore. cover the Gulf States, there is less reason The only terms which have ever been sug- for keeping terms with slave-owners, who, in gested for the restoration of the Union in- ceasing to be enemies, will become aliens volve strict guarantees for the security of and strangers. It is always desirable that Southern property and institutions. An at- the real prospects and possibilities of a strugtempt to introduce forcible emancipation gle should be understood, for the issues of into the heart of the South will be regarded, war must be settled before compromise or not only as a robbery, but as an unpardon- mediation can be attempted; but, at present, able outrage. The planters will feel that the prospect of an accommodation seems exthe worst of dangers is coincident with the tremely remote. Neither of the belligerent heaviest of losses, and they will assuredly governments is at liberty to surrender a disnever forgive the authors of their sufferings puted territory until the wishes of the local and their terrors. The domestic misery population have been distinctly ascertained. which hangs over the slave-owner is a for- Both in the North and the South, in spite of midable weapon, and the wounds it will in- the theories of politicians, the States enjoy a flict are incurable. large amount of political independence. The people of Kentucky or of Missouri will not be disposed of by distant governments, so long as they are themselves divided by a fierce domestic contest. While the Federalists can scarcely hope or wish to extend their dominion to Richmond, the Virginians are not likely to submit without compulsion to the forcible disruption of their state. The proposed neutrality of Kentucky, which has proved to be untenable as well as illegal, represented the conflict of sympathies which is now finding a vent in civil war. Missouri itself is figliting out the quarrel which it long since commenced in Kansas, and if the tide of war rolls southward, a similar crisis will find the same solution in Tennessee. Until one of the combatants has established a superiority on all the long line of the Border, it seems as if the termination of the war was independent of the wishes of both the central governments. The menace which is held out by the occupation of Port Royal might have been effective if the submission of the South had been possible; but although there was originally no just or plausible cause of war, the mutual injuries which have been inflicted, and the vast armaments on both sides, are now sufficient arguments against an immediate peace. The success of the naval expedition is the first blow which has been dealt against the South, and it cannot be expected that the party which has for the most part been victorious should give way at the first serious check. The old allies of the Northern Democrats may perhaps hope that party feeling may be aroused against the open triumph of Republican principles, or even of Abolitionist doctrines; and at all events, whatever danger may impend over the Slave States, they cannot, in the present state of the struggle, afford to give way. It is not impossible that the Government at Washing- In fighting for its frontier, the Federal ton may have begun to approximate to the Government is, perhaps, taking the best opinion which has long been general in Eng- means of preserving the internal unity of land. While the multitude is amused with the North. The twenty Free States, insepthe alternative of endless war or of complete arably united, would still be among the victory, responsible statesmen may have greatest powers of the world; nor is it cerlearned to confine their expectations to the tain that the real strength of the Union conquest or retention of those territories would be diminished by the secession. With which may be thought naturally to belong to a practically boundless territory, and with a the North. The frontier of the United States courageous and energetic population, the is already advanced beyond the line of de- Northern Union would receive in exchange marcation which separates free labor from for its lost provinces an exemption from ali slavery. Maryland is, by the alliance of the the internal complications which were incesUnion party with the military commanders, santly arising from slavery. The chief danfor the present ostensibly loyal; while the ger of the disruption consisted in the preceDistrict of Columbia and the city of Wash-dent which it involved. The universal exington have, by a political accident, become citement in the North after the fall of Fort the Federal head-quarters. The highland Sumter at once modified the habitual love country of Western Virginia has attempted for state independence, and gave the whole to detach itself from the seceding state, and in Kentucky and Missouri the belligerents are in presence with apparently balanced forces. The war is, by its own nature, more and more resolving itself into a struggle for population a common feeling, which has since been deepened in the prosecution of a great national enterprise. From the first commencement of the war there was an end of the risk that Pennsylvania or Western New York would pass out of the Union in connection with the Border States. A central Federation excluding New England and the vast regions of the North-west would have been far more fatal to the Union than any possible Southern secession. The exaggerated horror of rebellion which has been expressed by orators and journalists finds its best excuse in their natural fear of an insurrection which has never occurred. It might be thought that enough had now been done to secure for a considerable time the unity of the North, but the Government deems it necessary to arouse another common sentiment by cultivating the popular animosity against England. The search of the Trent will be received with vociferous applause in every part of the Federal States, and the universal irritation which will necessarily be expressed by all Englishmen will in its turn be used as a justification for further encroachments and affronts. From The London Review, 30 Nov. INTERNATIONAL LAW AND INTERNA- public journals intelligent teachers and not ignorant parasites. A people is indeed free who, in the moment of irritation, can listen to the voice of reason and justice. Such a nation is fit to govern the world, for it shows that it knows how to govern itself. In our judgment the Times has rendered a signal public service by its wise and prudent moderation. By a timely appeal to the sense of justice and the love of law inherent in the English mind, it has saved the country from the disgrace of an ignorant outburst of unjustifiable indignation. These are the triumphs of which a great journal may be justly proud. It is well to have a giant's power when it is thus employed. Happy the nation which can bear with patience the restraint of law, and which can endure from its teachers and its governors the language of truth! The first impression produced on the public mind by the intelligence of the affair of the Trent and the San Jacinto was no doubt of a most painful and disagreeable character. It is not too much to say that on Wednesday afternoon all unlawyered London was crying out for war and vengeance. But a little time for reflection and information has moderated what proves after all to have been a somewhat ignorant impatience. The truth is that the present generation has been so far removed from experience of the practical evils of war-for, indeed, the Russian quarrel was shut up in an out-of-theway corner of the world that it is only the careful students of history and law who possess a real knowledge of what is and what is not permitted to belligerent nations. Yet an ignorance of the simple and elementary propositions of international law is likely, as between this country and the rival combatants in America, to produce a state of exasperation in the public mind which may result in most serious consequences. WE have witnessed with supreme satisfaction the behavior of the better portion of the English people and the wiser portion of the English press under the natural excitement and irritation produced by the first news of the affair of the Trent and the San Jacinto. Of course everywhere there must be foolish and ill-informed persons, and we are not surprised to find the Liverpool Stock Exchange and the Morning Herald taking a leading part in a display of unreasoning absurdity. But, on the whole, the The office of a journalist-at least, of a public mind of England and its public in- journalist who rightly appreciates his restructors have conducted themselves in this sponsibilities-is to inform the judgment, conjuncture in a manner worthy of their and not to inflame the passions of the public reputation and their responsibilities. Of he pretends to instruct. If we attempt to course no country can be altogether without a class of journals which live by sensation paragraphs, but the real leaders of public opinion have shown their sense both of duty and power by endeavoring, in a moment of popular passion, to reason with and inform instead of truckling to and inflaming public indignation. We may well be proud of the contrast between the tone in which this question has been discussed at the outset by the Times, and the temper in which a similar event would have been treated by the New York press. The better portion of the English people wish to have in their perform that task in regard to this affair of the Trent it is especially because we think it unworthy of a great and powerful nation to give itself up to a passion of anger in a case where it is possible that we may have nothing of which we can justly complain. In the contest between the Federal and the Confederate States of America, England has very wisely assumed the position of a neutral. A neutral nation-especially in the case of a country which has a great maritime commerce-enjoys great advantages from the carrying trade which it naturally engrosses during the war. On the other hand, it is subject to certain inconveniences which the steam-packet. This is a principle for it is impossible to escape, because they are which the English Government has at all imposed upon it by the settled, and well- times successfully struggled, and as a belestablished principles of the law of nations, ligerent has most unequivocally affirmed. and against which it is especially idle for We cannot with any decency now pretend England to declaim, because she has always to question, as neutrals, a right which as beltaken the most prominent part in maintain- ligerents we have loudly proclaimed and ing and enforcing them. The truth is that stoutly insisted upon. The principles which England has been so incessently a belliger- regulate the right of search in time of war are ent power in all the great contests of the laid down by Chancellor Kent with his usual world that her individual experience of the accuracy and precision. duties of a neutral is very scanty and recent. We may be disposed to regret the principles we have established against ourselves, and to exclaim, "Quam temere in nosmet legem sancimus iniquam; " but we cannot in decency refuse to abide by the laws we have made. Lord Stowell, in the case of the Maria, speaking of the pretensions of a neutral convoy to protect itself by the flag of the manof-war with which it sails, says : a 66 Kent, Commentaries, p. 153. "In order to enforce the rights of belligerent nations against the delinquencies of neutrals, and to ascertain the real as well as assumed character of all vessels on the high seas, the law of nations arms them with the practical power of visitation and search. The duty of self-preservation gives to belligerent nations this right. It is founded on necessity, and is strictly and exclusively "I am not ignorant that amongst the loose time of peace, unless conceded by treaty. a war right, and does not rightfully exist in doctrines which modern fancy, under the All writers upon the law of nations, and the various denominations of philosophy and highest authorities, acknowledge the right in philanthropy, and I know not what, have time of war as resting on sound principles of thrown upon the world, it has been within these few years advanced, or rather insinu- public jurisprudence, and upon the institutes ated, that it might possibly be well if such And if upon making the search the vessel be and practice of all great maritime powers. security (i.e. of the man-of-war's flag) were found employed in contraband trade, or in accepted. Upon such unauthorized specu- carrying enemy's property, or troops, or delations it is not necessary for me to descant. The law and practice of nations (I include patches, she is liable to be taken and particularly the practice of Sweden, when it brought in for adjudication before a prize court. Neutral nations have frequently happens to be belligerent), gives them no been disposed to question and resist the exsort of countenance; and, until that law and ercise of this right. This was particularly practice are new modelled, in such a way the case with the Baltic Confederacy during as may surrender the known and ancient the American war, and with the convention rights of some nations to the present con- of the Baltic powers in 1801. The right of venience of other nations (which nations search was denied, and the flag of the state may, perhaps, remember to forget them when was declared to be a substitute for all docuthey happen to be themselves belligerent), no reverence is due to them, they are the elementary and other proof, and to exclude all ments of that system which, if it is consist-right of search. Those powers armed for the ent has for its real purpose an entire aboli-Purpose of defending these neutral pretention of capture in war.' sions, and England did not hesitate to consider it as an attempt to introduce by force It does not become us, after this, to "re-a new code of maritime law inconsistent with member to forget" the language which we her belligerent rights, and hostile to her inemployed, and the practice we pursued, when terests, and one which would go to extinwe were ourselves belligerents, nor to com-guish the right of maritime capture. The promise the rights which, when we become belligerents again, it may be our interest once more to assert. One of the great but inevitable evils to which a neutral country is subject, is the liability of its mercantile marine to the right of visitation and search (and in some cases, of capture), by the ships of war of both the belligerent powers. The captain of the Trent seems to have been ignorant that the commander of the San Jacinto had a clear and unquestionable right to visit and search attempt was speedily frustrated and abandoned, and the right of search has since that time been considered incontrovertible. . . Every belligerent power has a right to insist on the only security known to the law of nations on this subject, independent of any special covenant, and that is the right of personal visitation and search to be exercised by those who have an interest in making it. The penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation; and in war, much further than the Americans have been willing to admit. But the case of the Trent and the San Jacinto is clearly within even the restricted right which the Americans have always conceded. the infliction of the penalty is conformable ried the right of search, both in peace and to the settled practice of nations as well as to the principles of the municipal jurisprudence of most countries in Europe. There may be cases in which the master of a neutral ship may be authorized by the natural right of self-preservation to defend himself against extreme violence threatened by a cruiser grossly abusing his commission; but except in extreme cases, a merchant vessel has no right to say for itself, and an armed vessel has no right to say for it, that it will not submit to visitation or search, or be carried into a proximate port for judicial inquiry. Upon these principles a fleet of Swedish merchant ships sailing under a convoy of a Swedish ship of war, and under instructions from the Swedish Government to resist by force the right of search claimed by British lawfully commissioned cruisers, was condemned. The resistance of the convoying ship was a resistance of the whole convoy, and justly subjected the whole to confiscation." The limitations to this right are ascertained with equal precision : "The exercise of the right of visitation and search must be conducted with due care and regard to the rights and safety of the vessels. If the neutral has acted with can dor and good faith, and the inquiry has been wrongly pursued, the belligerent cruiser is responsible to the neutral in costs and damages to be assessed by the prize court which sustains the judicial examination. The mere exercise of the right of search involves the cruiser in no trespass, for it is strictly lawful; but if he proceeds to capture the vessel as prize, and sends her in for adjudication, and there be no probable cause, he is responsible. It is not the search, but the subsequent capture, which is treated in such a tortious act." It has been said that the Americans themselves have been in the habit of resisting the right as against themselves which they have just exercised. But this is a mistake. Persons inaccurately acquainted with the questions of international law have confounded the very distinct rights of visitation and search in time of war and in time of peace. We did at one time insist on a right of visitation in order to search for slaves on board American vessels in time of peace. The Americans always resisted, and denied the right of search in time of peace, and in the opinion of most lawyers on good grounds. But neither the Americans, nor any other nation in the world, have ever questioned the right of a belligerent to search a neutral vessel. Our pretensions have always car Now, this being clear and unquestionable law-law, as it will be observed, founded mainly on English decisions-it is evident that Captain Moir was quite in the wrong to oppose any obstacles, by refusing to show his list of passengers or otherwise, to the visitation and search of the captain of the San Jacinto. As a neutral merchantman, the captain of the Trent had nothing to do but to submit cheerfully to being stopped and searched by the captain of the belligerent man-of-war. The resistance which Captain Moir, from a misapprehension of his rights, offered, or attempted to offer, might have seriously compromised his rights in case the San Jacinto had thought fit to carry the Trent into an American port to be adjudicated upon in an American prize court. For in the celebrated case of the Swedish convoy referred to in the passages we have quoted from Kent, Lord Stowell decided that the resistance on the part of the convoying vessel of war to the search by the British cruiser was a ground for the condemnation of the whole convoy, which was involved in that resistance. And further, that it was not necessary that an actual resistance should have taken place, but that a threat of resistance, which yielded to superior force, was enough to condemn the vessels. It is highly desirable that the Government should take some steps to make the captains of our merchant vessels acquainted with the real state of the law, and to warn them of the danger of resisting demands, the justice of which cannot be disputed. So far, then, it is quite clear that in firing a shot across the bows of the Trent-the ordinary method by which a man-of-war compels a vessel to bring to-and in proceeding to search the steam-packet, the San Jacinto was guilty of nothing of which we have any right to complain. Indeed, if the American captain had there and then carried the Trent into the port of New York, there to be adjudicated upon in a prize court, he would have done only what he was strictly entitled to do. And if it had turned out that the nature of the cargo and the character of the ship did not justify the capture, the only remedy, as is pointed out by Kent, would be the costs and damages which would be assigned by the prize court for the captured vessel. It has been suggested that the seizure of the commissioners, even if lawful, on account of their hostile character, was not properly conducted, and that the San Jacinto ought subjects, then they could only justify their to have carried the Trent into some Ameri- act by insisting on the doctrine which their can port for judicial condemnation. We Government have always denied. And the confess it seems to us hardly to lie in our English Government can only complain of mouth to raise such an objection. The in- the transaction by repudiating the view of jury to British property and the inconven- the law for which we have always contended; ience to British subjects, would have been and for the maintenance of which, indeed, far greater if the American captain had in- in 1812, we went to war with the United sisted on taking the Trent to New York in- States. This certainly would not be a credstead of allowing her to continue her voyage itable position for either Government to octo Southampton. The vessel and cargo cupy. But it is not on this ground, probawould probably have been condemned. The bly, that the Americans will rest their British owners would have irreparably lost defence. There is another principle to which their property, and the British passengers would have suffered enormous inconvenience. That the San Jacinto might have legally carried the Trent into New York is certainly true, but it seems to us equally clear that we cannot make a grievance of her having abstained to do so injurious an act. Indeed, conceding as we must, that the American captain had a right to stop the Trent, he seems to have done as little injury to British interests as the nature of the transaction admitted. But there still remains behind another and a very important question; viz., as to the lawfulness of the seizure of the Southern commissioners; and this question, it must be confessed, does not admit of a solution by any means so clear and decisive as that of which we have just disposed. There has been a long-standing quarrel between the lawyers and statesmen of England and the United States as to the extent of the right of capture exercised as against neutrals the English, as usual, contending for the most extensive rights of the belligerents, and the Americans, always up to this time insisting on the largest privileges for the neutrals. The different views entertained by the two countries up to this day is thus explained in a note to Kent's commentaries : "The Government of the United States admits the right of visitation and search by belligerent Government vessels of their private merchant vessels for enemy's property, contraband of war, or men in the land or naval service of the enemy. But it does not understand the law of nations to authorize the right of search for subjects or seamen. England, on the other hand, asserts the right to look for her subjects on the high seas, into whatever service they may wander, and will not renounce it." The English have always maintained, and the Americans have always denied, the right of a belligerent ship to search for and take its own subjects out of a neutral vessel. If the Federal Government choose to regard the Southern commissioners as their own they may possibly appeal with success. It is quite clear that the neutral flag cannot, be used to cover either property or persons who are devoted to the purpose of promoting the hostile views and preparations of one of the belligerents. It is admitted, even by those who have contended most strenuously for the privileges of the neutral flag, that it cannot protect either goods which are contraband of war, or persons engaged in the land or naval service of one of the belligerents, or emissaries carrying instructions or despatches. The question is whether the principle, which makes such persons and goods liable to capture even under a neutral flag, applies to individuals in the position of the Southern commissioners. It may be said on the one hand that they are not occupied in the land or naval service of the belligerent, and that no despatches were in fact found upon them. But, on the other hand, it may be argued with much force, that their very title and occupation connects them sufficiently closely with the forwarding of hostile operations to justify their capture. Whether the Southern commissioners who had just run the blockade were actually occupied in the business of the war against the United States, is a question of fact rather than of law, the decision of which would probably be materially influenced by the nature of the tribunal which had to adjudicate on it. But, in truth, the great difficulty in the way of the captors has been in fact removed by the confession of the individuals captured. From the moment that Messrs. Slidell and his friends acknowledged themselves to be commissioners, i. e., emissaries from one of the belligerent parties, their seizure became lawful. In ordinary cases the proof is made by the discovery of despatches on the party seized. But if the character of the persons is clearly established, as in this case, by their own confession, all need for proof by despatches is superseded. It certainly would be a strange doctrine, that while you are at liberty to seize the despatches, you are bound to set free the messenger, who probably carries their contents in his |