memory. A man may carry instructions in his head just as well as in written papers. And such a man is, in fact, neither more nor less than a living despatch. It is difficult, certainly, to understand how, if the despatch is contraband, the emissary can be innocent. And if you can by any means clearly establish that he is the bearer of instructions, it signifies not whether they exist in documents, or in his own breast. It is this proof which the commissioners, by their own confession, have supplied. It has been objected that the captain of the Trent might have been ignorant of the contraband character of his passengers. In the first place, as a fact, this is highly improbable. But in the second place, it is wholly immaterial. A captain who carries secret contraband is not absolved from condemnation, by ignorance of the character of his cargo. If a captain carries gunpowder in a barrel labelled soft soap, it will be liable to seizure. And if he should ship on board a seeming Quaker gentleman, who in fact turns out to be a belligerent emissary, he must answer for it.

We have said enough to show that it is doubtful whether there is anything in this transaction of which we have a right to complain. At all events it is not such a case of outrage as to absolve us from the duty of discussing it with temper and moderation. The preservation of our friendly relations with the United States is a matter of infinite importance, and not to be perilled by petulance or passion. We in this country have been sufficiently in the habit of censuring the blustering and bullying of American orators and the American press. We hope that in this juncture we shall not imitate their bad example. As belligerents we have always enforced with strictness our rights against neutrals. As neutrals we cannot fairly refuse to submit to the law we have ourselves laid down. A proud and powerful nation can afford to be calm without fearing the imputation of want of spirit, and to be just without the suspicion of cowardice.

From The London Review, 30 Nov. THE CASE OF THE "NASHVILLE." WE have dealt at length in another article with the case of the Trent and the San Jacinto. We have endeavored to expound the law of nations as applicable to that transaction, and to deprecate any unreasonable irritation in this country at an inconvenience which legitimately flows from our position as neutrals. It is not improbable that when the news of the affair of the Nashville reaches New York, the exasperation which the success of the Southern

cruiser will cause will be at least as great as the intelligence of the stoppage of the Trent caused, at the first moment, in this country. Neutrals have something to suffer from belligerent rights, and belligerents have something to concede to neutral obligations. We fear, however, that the people and the press of New York are not likely to imitate the good sense and moderation which have been generally exhibited here in the discussion of an affair at first sight of an highly offensive character.

We have no doubt that the "sensation press" of New York and the Republican platforms will resound with denunciations of Great Britain for harboring the Nashville in its ports; and that with the same ignorance and folly which have led some English journals to characterize the acts of the San Jacinto as piratical, the American journalists and orators will apply the same term to the capture effected by the Southern cruiser. We have endeavored at some length to set out the reasons which ought to soothe the English exasperation at the affair of the Trent. And as for the important end of the preservation of friendly relations between England and the Federal Government, it is equally desirable that the latter should be satisfied that it has no just grounds of complaint, we shall endeavor to point out the entire baselessness of the grounds on which it has been alleged that the English Government are bound to refuse a refuge to the Nashville.

As here in England it has been confidently alleged that the Nashville might be treated as a pirate in consequence of a defect in her commission, there is little doubt that this text will be largely insisted upon on the other side of the Atlantic. Now this point may be very shortly and summarily disposed of. We shall not stop to inquire whether the Nashville was or was not a public vessel of war, nor even whether she had a commission, either for the ship herself, or a personal commission for the captain. And for this simple reason. It is wholly immaterial whether she was a public or a private ship, and equally so whether she or her captain had or had not a commission. When belligerents are at war, any ship of one side, whether public or private, may make captnres upon any ship on the other side, whether with or without a commission. It is a common error to suppose that a privateer without a letter of marque is liable to be treated as a pirate. That is not so. only object and effect of a letter of marque is to give the privateer a title to the booty which he captures. But for that permission from his own sovereign everything which he takes is taken for his sovereign. But the

The

he can acquire no property to himself in the prize, and if the act be contrary to the regulations of his own sovereign, he may be lia

pun

Kent, Commentaries, Vol, 1, p. 95. "The subject has been repeatedly discussed in the Supreme Court of the United States, and the doctrine of the law of nations is considered to be that private citizens cannot acquire a title to hostile property unless seized under a commission, but that they may still lawfully seize hostile property in their own defence. If they depredate upon the enemy without a commission, they act upon their peril, and are liable to be ished by their own sovereign, but the enemy are not warranted to consider them as criminals, and, as respects the enemy, they violate no rights by capture. Such hostilities without a commission are, however, contrary to usage, and exceedingly irregular and dangerous, and they would probably expose the party to the unchecked severity of the enemy; but they are not acts of piracy unless committed in times of peace. Vattel, indeed, says (B. 3, cap. 15, sec. 226) that private ships of war without a regular commission are not entitled to be treated like captures

cap

made in a formal war. The observation is rather loose, and the weight of authority undoubtedly is, that non-commissioned vessels of a belligerent nation may at all times ture hostile ships without being deemed by the law of nations pirates. They are lawful combatants; but they have no interest in the prizes they may take, and the property will remain subject to condemnation in favor of the Government of the capture as droits of the Admiralty."

And this doctrine is borne out to the full by a celebrated judgment in the Supreme Court of the United States.

The Nereide, 9 Cranch's Reports, p. 449. "Nor is it true, as has been asserted in argument, that a non-commissioned armed ship has no right to capture an enemy's ship, except in her own defence. The act of capture without such pretext, so far from being piracy, would be strictly justifiable on the law of nations, however it might stand upon the municipal law of the capturing ship. Vattel has been quoted to the contrary, but on a careful examination it will be found that his text does not warrant the doctrine. If the subject capture without a commission

But as to the enemy he violates no rights by the capture. Such, on an accurate consideration, will be found to be the doctrine of Puffendorf and Grotius and Bynkershock, and they stand confirmed by a memorable decision of the Lords of Appeal in 1759.”

This being so, it is plain that neither we as neutrals, nor, indeed, the Federal Government as belligerents, have anything to do with the authority which the captain of the Nashville might or might not hold from his Government. If he captured his prize by lawful authority, he captured it for his own benefit; if he captured it without such authority, he captured it for his own Government. In neither case have we any concern with the question. All that we have to do is, by the exercise of an impartial vigilance, to prevent either party from making use of our territory for the purpose of hostile preparations or attacks on the other belligerent. We might, if we pleased, absolutely exclude both parties from our ports, upon whatever pretext they came here; or we may, without so extreme a measure, limit the use which shall be made by both sides of the refuge we accord them, so long as we extend to either party the same measure. The Foreign Enlistment Act has defined the acts which are prohibited to be done within our territory, either by our own subjects or by those of other countries, in respect of equipping or furnishing armaments to be employed against other states. The following sections are applicable to any attempt which might be made to fit or improve the warlike fittings of vessels in our ports to be employed in hostilities against another state :

"That if any person, within any part of the United Kingdom, or in any part of His Majesty's dominions beyond the seas, shall, without the leave and license of His Majesty for that purpose first had and obtained as aforesaid, equip, furnish, fit out, or arm, or attempt or endeavor to equip, furnish, fit out, or arm, or procure to be equipped, furnished, fitted out, or armed, or shall knowingly aid, assist, or be concerned, in the equipping, furnishing, fitting out, or arming of any ship or vessel, with intent or in order that such ship or vessel, shall be employed in the service of any foreign prince, state, or potentate, or of any foreign colony, province, or part of any province, or people, or of any person or persons exercising, or assuming to exercise any power of government in or over any foreign state, colony, or province, or part of any province, or people, as