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of the nation whose flag floats over known well how to assert that alleged that vessel-it seems but fair that he right on their own behalf; putting should be able to claim the benefits, as even out of view the Trent case, they well as bound to bear the obligations, of have now unfortunately shown also his temporary allegiance : that, in short, in the utterly lawless seizure of exhe should be able to claim the protection senator Gwir and other Confederates on of the flag. Of course it is competent their passage through the neutral terfor the master of the vessel, considered ritory of the Isthmus of Panama, how as the executive authority of the munici- ready they are to trample upon it when pal laws of his own country on board, asserted against them by a Power too and subject to any civil liabilities for weak and defenceless for them to rebreach of contract, to deliver up or expel spect. the claimant, whenever he might be de- I have indicated a few of the grave livered up or expelled from the country questions of international law which the itself. But where the claim of protection affair of the Trent has raised, and none is made, and not refused, it is difficult of which it will certainly have sufficed to see how the individual can be sepa to settle. Can nothing be done to settle rated from the whole ship-how inter- them, otherwise than by the wrangle of national law can step in between them, diplomatists on each side ? Such interto seize the one, and let the other go. national law as exists has, in fact, grown
I cannot help thinking, therefore, up at a time when war, and not peace, that, subject to a duly regulated exercise was considered as the chief concern of a of the right of search and of seizure for nation's life. It is only within the unneutral conduct, the principle of abse- present century, it may be said, that the lute protection of persons by a bona interests of war have been felt to be fide neutral flag deserves to be ad. wholly subordinate to those of peace. mitted into international law. I say, Hence international law requires to be by a bona fide neutral flag, as of revised from that new point of view, course the principle could not apply of which the neutral is the reprewhere the hoisting of such flag is sentative. But the privileges of neumerely colourable, -where another mu- trals require no less to be revised than nicipal law than that it denotes, is the rights of belligerents. Hitherto, so really in force on board;—where, in short, entirely has the point of view been one the ship is practically in the service of of war, that virtually a state of war has one of the belligerents. In the case of been assumed between the neutral himthe Trent, beyond all question the flag self and each belligerent, the former was a bona fide one,- the ship was a being held entitled to do everything that British ship, governed by British muni. a belligerent did not hinder him from cipal law, and the persons of the envoys doing. But the secret war carried on claiming the protection of the flag by a neutral in fomenting hostilities, should, upon the principles laid down, under colour of peace, is really an have been inviolable. But there would offence against mankind. The interests be no greater mistake than to suppose of all being peace, he injures all by that international law, as at present re- covertly assisting war. The time will cognised, does in any way cover those principles. The “right of asylum," of I have not adverted in this paper to the which we hear talk in the matter, has proposal, much agitated of late years, to render not risen to be more than a comity among
all private property inviolable at sea. There
is probably more to say upon it than Chamnations—a very noble policy pursued
bers of Commerce, which bave shown thenby some, who have conscience enough to Belves so ready to vote upon it, are aware. recognise, and strength enough to fulfil, But it is a question chiefly important as bethe common human duty of harbouring
tween belligerents; and, dealing only here
with those questions which may divide belthe defenceless, until shown unworthy
vorthy ligerent and neutral, I have felt myself entitled
her territory on land ? Here again, why should Belgian ships be subject to a different rule?
But now we come across the difficult question of the rights of ambassadors. It is admitted that neutrals have a right to keep up equal friendly relations with either belligerent, subject to the belligerent right of blockade. It is admitted that they may send, receive, and keep ambassadors to, from, and with each. It is admitted that such ambassadors, while within the neutral's territory, are inviolable. It is admitted, as we have seen, that despatches may be lawfully carried by a neutral from the ambas sador of a belligerent in a neutral state to the belligerent country, and this on the ground that “it is too much to say “ that all the business of the two states “shall be transacted by the minister of “theneutral state, residentin the enemy's "country." But on the other hand, Lord Stowell, following Vattel, followed by Phillimore, has expressly said that “you may stop the ambassador of your “enemy on his passage.”
Are these positions strictly consistent? When a belligerent stops his adversary's ambassador from reaching the neutral state, does he not practically compel "all “ the business of the two states” to be “ transacted by the minister of the “neutral” one? If the neutral has a right to receive ambassadors at all, is not that right inchoate from the instant that ambassador sets his foot on board at least that neutral's ship to come to him?
Clearly, then, in the interest of neutrals, the international law on the subject of ambassadors, as well as their despatches, requires to be settled and rendered consistent. The right to stop an ambassador in transitu, if to be exercised at all on board a neutral vessel not breaking a blockade, would seem to require limitation by the right of the neutral power to whom such ambassador is accredited, of receiving such ambassador, and thereby of claiming to have him delivered up; a limitation which would apply to every subordinate agent sent to open relations
mission must be a bona fide one; the ambassador must not be sent simply to organise war. If he does so, as in the case of the French minister Genet, in the early days of the United States, who used his position as minister in that country to direct hostile operations against England, he clearly puts himself out of the pale of international law, whether at sea or on shore.
I have now endeavoured to glance at the various heads under which rights of search and seizure have been or should be claimed. The question of the protection which may be afforded by a national flag is one much involved with the former ones, yet somewhat overlapping them. There was a time when a right of sanctuary was claimed by ambassadors. It is now admitted that on land no such right generally exists ; that a foreign ambassador's flag in a country cannot override the municipal law of that country, so as to screen offenders against it, unless in the persons of the ambassador himself and his followers, who are deemed, by a fiction, "extra territorial.” I say “ generally exists,” because few people can doubt that in countries where municipal law has, properly speaking, no existence, or at times when it is utterly trampled under foot, an ambassador is often morally justified, and would often be supported by his country, in extending the protection of his flag to those who would otherwise fall victims to a despot's caprice, or to the violence of a mob. But such are rather cases of international morality, than of international law. They are governed simply by the broad human principle of sheltering a fellow-creature against unjust violence.
At sea the case is different. There is no need of a fiction of extra-territoriality. The ship is a physical domain of municipal law. Every person who is on board the ship of a particular nation, whether belonging to that nation or not, is subject to the municipal laws of that nation, If he commits an offence there, he is punishable according to those laws, and not according to his own. This being of the nation whose flag floats over that vessel—it seems but fair that he should be able to claim the benefits, as well as bound to bear the obligations, of his temporary allegiance : that, in short, he should be able to claim the protection of the flag. Of course it is competent for the master of the vessel, considered as the executive authority of the municipal laws of his own country on board, and subject to any civil liabilities for breach of contract, to deliver up or expel the claimant, whenever he might be delivered up or expelled from the country itself. But where the claim of protection is made, and not refused, it is difficult to see how the individual can be sepa rated from the whole ship-how international law can step in between them, to seize the one, and let the other go.
I cannot help thinking, therefore, that, subject to a duly regulated exercise of the right of search and of seizure for unneutral conduct, the principle of absolute protection of persons by a bona fute neutral flag deserves to be admitted into international law. I say, by a bona fide neutral flag, as of course the principle could not apply where the hoisting of such flag is merely colourable, -where another municipal law than that it denotes, is really in force on board;where, in short, the ship is practically in the service of one of the belligerents. In the case of the Trent, beyond all question the flag was a bona fide one,the ship was a British ship, governed by British municipal law, and the persons of the envoys claiming the protection of the flag should, upon the principles laid down, have been inviolable. But there would be no greater mistake than to suppose that international law, as at present recognised, does in any way cover those principles. The “right of asylum," of which we hear talk in the matter, has not risen to be more than a comity among nations—a very noble policy pursued by some, who have conscience enough to recognise, and strength enough to fulfil, the common human duty of harbouring the defenceless, until shown unworthy
known well how to assert that alleged right on their own behalf; putting even out of view the Trent case, they have now unfortunately shown also in the utterly lawless seizure of exsenator Gwir and other Confederates on their passage through the neutral territory of the Isthmus of Panama, how ready they are to trample upon it wheu asserted against them by a Power too weak and defenceless for them to respect.
I have indicated a few of the grave questions of international law which the affair of the Trent has raised, and none of which it will certainly have sufficed to settle. Can nothing be done to settle them, otherwise than by the wrangle of diplomatists on each side ? Such international law as exists has, in fact, grown up at a time when war, and not peace, was considered as the chief concern of a nation's life. It is only within the present century, it may be said, that the interests of war have been felt to be wholly subordinate to those of peace. Hence international law requires to be revised from that new point of view, of which the neutral is the representative. But the privileges of neutrals require no less to be revised than the rights of belligerents. Hitherto, so entirely has the point of view been one of war, that virtually a state of war has been assumed between the neutral himself and each belligerent, the former being held entitled to do everything that a belligerent did not hinder him from doing. But the secret war carried on by a neutral in fomenting hostilities, under colour of peace, is really an offence against mankind. The interests of all being peace, he injures all by covertly assisting war. The time will
I have not adverted in this paper to the proposal, much agitated of late years, to render all private property inviolable at sea. There is probably more to say upon it than Chambers of Commerce, which have shown themselves so ready to vote upon it, are aware. But it is a question chiefly important as between belligereuts; and, dealing only here witb those questions which may divide belligerent and neutral, I have felt myself entitled come, I believe, when to carry contraband of war or otherwise knowingly aid a belligerent under a neutral flag, will be held an offence against the law of nations only inferior to piracy, entailing search and seizure by neutral vessels as well as belligerent, and condemnation in any neutral court of Admiralty.
And now, as we have seen, all the nations of Europe are, as they have never been before, united in one interest, and that a neutral one. Why should not they settle once for all — with or without the concurrence of both belligerents or either the terms upon which the rights of peace shall henceforth be trenched upon by the so-called rights, or rather the alleged necessities, of war? A beginning of that good work was made at the Congress of Paris in 1856. England, by accepting the rule of “ free ships, free goods," as respects articles not contraband of war, has shown her willingness for concession. Why not carry the work now further? Why should not a few of the maritime nations, having agreed previously upon a few leading principles or bases of settlement, appoint each a really able jurist as Commissioners to draw up an international “Code of the Sea,”—the respective rights of neutrals and belligerents to form the first subject of consideration, and with power for the Commissioners to add to their number representative jurists from other mari. time states as they may be appointed ? The Code once framed might be embodied in a great international treaty, and in the meanwhile might receive force, chapter by chapter, through special conventions, as each state acceded to what was done. From the moment when the bases of settlement were agreed upon, still more from the adoption of any chapter of the Code, the navy of each power should be pledged to the enforcement of the rules laid down on behalf of all powers agreeing to them, so that every neutral trader should feel assured of protection wherever the flag of any neutral man-of-war was flying. Such a system would not have the
called “armed neutrality;" it might possibly lead to the establishment of an international “ police force of the seas,” the ships affected to which should be inviolable in any war whatsoever.
The work I have sketched out need really not be a difficult or a long one. The Great Exhibition of next year, the approaching meeting of the Social Science Association in London, might be made materially to assist towards its being taken in hand. Assuming that really efficient men were appointed, and at a sufficient rate of remuneration to secure the exercise of all their energies for the time being, six weeks, or two months, ought to be sufficient to give the world some authoritative heads of a “law of search in time of war," which is the main thing required, and a couple of years might probably enable us to see the whole Code framed, together with those authoritative translations into all the maritime languages of Christendom which are essential to its efficacy. And if only the case of the Trent, which, while I write, is still but a dark political riddle, by calling attention to many unsettled questions involved in the present “law of the sea," should lead to an authoritative solution of some of them, it may yet be felt that, in the words of another riddle of old, “out of the “eater came forth meat, and out of the “ strong came forth sweetness."
But in the meanwhile ? Well, we neutrals must bear and forbear. It is not a pleasant part to play, that of neutral, especially when, like England, you are by no means used to it. To have your merchant-ships stopped and overhauled on every sea by foreign officers-by mere privateers — seldom over-courteous, often not very scrupulous, is decidedly disagreeable. War, it must be admitted, is a terrible nuisance; and, after all, we should be thankful that it makes itself such. For the chorus of grumbling which it awakes from every captain, ship-owner, merchant, whose ship has been delayed, whose expenditure has been increased, whose profit has been diminished, by a
such stoppage, swelling as it is sure to but of new birth—believing, as I do, do year after year, must help greatly in that the tremendous necessities of a course of time to stun and paralyse the gigantic struggle will gradually purge very belligerents. But we must re- away the dross, and bring to the surface member that—not to speak of older the more solid and nobler portions of the times—in the days of our own fathers nation,-I trust, also, that we shall know we inflicted at all events the maritime how to forbear towards it. Our journalportion of the war-nuisance, for the ists seemed never to have done enough better part of a quarter-century, on all in sermonizing the American people as the nations of the civilized world, and to their folly in falling out together; that none suffered at our hands as as to the horrors of a fratricidal strife neutrals more acutely than they whose between the members of a kindred race; belligerent, doings we are now com- as to the absurdity of their mutual plaining of. We must remember that outbursts of violence. The South might at no time are men's passions more vio bombard Sumter ; take sudden posseslent than during the struggle of a sion of all the Federal property which doubtful civil war, such as that now it could lay hold of; commission priraging between the two fractions of the vateers ; threaten the Capitol. Still, in late American Union; and as bystanders, England, the doves of the broadsheets we shall do well to make allowance for went on cooing to the North of peace. these passions, and not to be carried Now, a single utterly bloodless “outaway by them. We must remember, rage upon the British flag" has been that owing to the monopoly of federal committed without authority by a nooffice held almost without intermission toriously hasty-tempered officer ; and since the very formation of the Union because that act is not instantly disby the party who have now led off the avowed, but is lauded by American folly, secession of the South, the men now in every dove is turned into a raven, and office at Washington are raw hands, ill- our nation is not only told to prepare prepared by stump oratory, electioneer- for war, but is, from some quarters, ing factions, or even the governorship of actually hounded on to it. I do single states, for the functions which not say that, if the Commissioners they have to fulfil; and we shall do were not released, war would not be well to make allowance for their inex- for England a dread necessity. But perience. We must remember that, I say that that war would be at least demoralized as it has been by the long as great a folly, very nearly as true ascendancy of the slave power, the North a fratricide, as the civil war between has not yet even risen to a clear per- North and South-I believe that to ception of its own standing-ground some extent it would be even more so. that the party now in office simply I believe there are large tracts of country represents the negative principle of re- in these islands, whose relations of kinsistance to the slave power, many of its dred with the North are closer and more members being really mere free-soil fili- multiplied than those of the North itself busters instead of pro-slavery ones; and with the South. It has been truly said, we shall do well to make allowance for that in our manufacturing districts there the low morality of this New York is scarcely a family which has not some stratum of the republican party—this member in America ; and I believe mere topmost drist of spouters and there are more Englishmen, Irishmen, intriguers, who share with, I believe, and Scotchmen at the North (in which more sterling elements (the President I include the whole present United himself included) the direction of the States), than there are Northerners at present American Cabinet. Trusting, the South, or Southerners at the North. as I do, that the present crisis of our And I believe that the true North—the great sister nation across the Atlantic is old Puritan North of the Pilgrim