agreement for the protection, shows that the change in the mode of transacting business does not of itself furnish pro

tection.

Thus far we have considered the case on its analogy to the capture of goods contraband of war, Earl Russell, following the lead of Mr. Seward, having argued it on that basis. It has been supposed that the legality of the capture must depend upon the question, Contraband of war or not? But we are of opinion that the analogy to the case of enemy's goods is quite strong, and by no means to be ignored. Considered in reference to the principles which regulate the capture of such goods, some of the objections to the legality of the proceeding vanish at once. It seems necessary only to establish the hostile character of the persons at the time of the capture. In this view of the case there is no longer any question as to the direction and termination of the voyage, as enemy's goods may be captured on any voyage; and the question respecting the necessity of sending in the vessel must disappear, because the carriage of enemy's goods does not render the vessel liable to confiscation. There would have been no necessity for sending in the Trent for the carriage of the persons, nor in fact any propriety in so doing; and an adjudication releasing the vessel, if she had been sent in, and requiring the captors to pay the costs of sending her in, could not be required. There would have been no good reason for libelling her. The legal proceedings would with more propriety have come from the master or owners, to procure the payment of expenses.

In the view of the case we have thus presented we have been content to treat the act of the Trent as if it were not one of hostility; but it is by no means clear that it is entitled to that favorable construction. Our limits, however, admonish us that it is not expedient to enter upon the discussion of that question.

From the examination we have thus made of the principles of international law, as existing between the United States and Great Britain at the time when the Trent was stopped, we draw these inferences and conclusions, to wit:

1. Regarding Messrs. Mason and Slidell as being, in the language of Earl Russell, quasi ambassadors, the principle

quoted from Vattel and approved by Sir William Scott, stated by Dr. Phillimore and indorsed by Mr. Wheaton, that you may stop the ambassador of your enemy on his passage, has for its foundation a right to deal with him as an enemy, and an important officer of the enemy, who is not protected, on his outward passage, by his diplomatic character, even on board a neutral vessel; and that you may capture him, notwithstanding he has reached a neutral port, and taken his passage from that place, provided he has not reached the country of his destination, the voyage from the neutral port which he has reached to the port of his destination being but a continuation of the voyage originally undertaken.

2. If, on principle, you may capture an ambassador under such circumstances, a fortiori you may capture any hostile agent or official of the enemy, found proceeding, under like circumstances, on a hostile errand or mission. In fact, upon principle, the right to capture the latter exists, even if a right to stop the former were denied.

3. The right to capture despatches being conceded, (with the exception of despatches from, and even to, ambassadors and consuls abroad,) a fortiori you may capture the bearers of despatches, commissioned for that purpose, being at the same time, in the emphatic language of Captain Wilkes, themselves "the embodiment of despatches." This case is not within the exception, there being no ministers or consuls of the Confederate States abroad, but agents only, who were exerting all possible diligence in hostility to the United States.

4. Upon the principles which regulate the transportation of contraband of war, in the absence of treaty stipulations, Mason and Slidell were as much contraband as officers and soldiers, and equally liable to capture. The question is not dependent upon the usage of wearing a uniform and a feather, nor upon the use of arms merely. If a character of hostility attaches to the person at the time as an agent or civil officer, he is liable to capture. The errand of Mason and Slidell was emphatically one of hostility, and it makes no difference whether the voyage was or was not from neutral port to neutral port, if in the prosecution of it the parties are giving aid to the hostilities of the enemy.

5. Upon the principles which regulate the capture of enemy's goods, which bears the closest analogy to the case of the capture of enemy persons, the latter are liable to capture wherever found on the high seas, and these persons were most emphatically enemies, in actual hostility at the time.

6. In the case of the capture of persons only, the belligerent may well waive the right to capture the neutral vessel in which they are found (supposing such right to exist) for any reason that seems sufficient to him, and the omission to send in the vessel cannot affect the right of capture and detention, because there is no judicial tribunal having jurisdiction to try the validity of the capture, even if the vessel were sent in.

Mr. Secretary Seward, in his communication to Lord Lyons, says: "The claim of the British government is not made in a discourteous manner. This government, since its first organization, has never used more qualified language in a similar case." And Mr. Sumner, in his speech in the Senate, refers to the delivery of the parties as having been done at the instance of the British government, "courteously conveyed."

While we have no desire to add anything to the honest indignation which has been exhibited by the great body of the Northern people respecting the circumstances under which this demand was made, we must protest against these admissions, as being utterly unfounded, and therefore improper. It is true that the phrase of the despatch was that of the most studied courtesy. After a statement of facts which omitted all the well-known reasons which induced Captain Wilkes to make the capture, the conclusion is reached, and undoubtedly well reached on that statement of facts, that the government of the United States ought to offer such redress as alone should satisfy the British nation; and that is, the liberation of the prisoners and a suitable apology for the aggression. "Should these terms not be offered by Mr. Seward, you will propose them to him."

If this had been all, and the United States government had been left free to present the full statement of facts, and its views of the right to make the capture, the courteous tone of the despatch would have deserved all commendation. But

behind all this is the instruction to Lord Lyons to leave Washington within a week if the demand should not be complied with, most extensive naval and military preparations in England, -the immediate embarkation of large bodies of troops for Canada,- and orders to the commanders of naval squadrons in the Gulf and elsewhere, the nature of which may be surmised, although not promulgated. To the inquiry made by Mr. Adams, in consequence of these preparations, whether a refusal would be followed by war, it was answered that the course was not determined on; and Lord Lyons was instructed, if an inquiry should be made by Mr. Seward as to the consequence of a refusal, to make an equally oracular reply.

It was fully understood, therefore, as well as if it had appeared in the despatch itself, that any attempt to sustain the seizure on the principles of international law as used and heretofore approved by Great Britain would be at the peril of instant war, and that Great Britain held herself in readiness to avail herself of her great naval strength to ravage our unprotected coasts, towns, and cities, in order to avenge the outrage of stopping the Trent for an hour or so, and taking from that vessel four persons, not subjects of Great Britain, and in whom she professed no interest, except as they were passengers on board a passenger packet belonging to her subjects. Really this is a somewhat strong exhibition of courtesy. If this be courtesy, save us from our friends."

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Taking the statement of facts, as presented by Earl Russell himself, without qualifications, suppose the seizure to have stood without justification and without excuse, it did not appear to have been made by the order of the government in the first instance, and at the most it could have been supposed to be only a mistake of his rights on the part of Captain Wilkes. Putting the worst construction upon it, the case was not one which required instant war, or a demand with instant war as the possible alternative of non-compliance. It is not wonderful that this kind of courtesy should have elicited a deep feeling on the part of the people of the United States, which, although it has subsided, is not extinguished, nor likely to be entirely so within the present generation. The

case is in singular contrast with the conduct of the United States, which remonstrated and negotiated respecting impressment for years and years before threatening hostilities; and which let the invasion of their territory and the burning of the Caroline remain to be discussed, years afterward, by Mr. Webster and Lord Ashburton. Perhaps the expenditure of Great Britain, incurred by these warlike preparations, whether it was to the extent of five or twenty millions, and the loss of a direct trade with the Northern States, occasioned by the course of the British government, to the amount of some twenty millions more or less, with the incidental losses otherwise occasioned by a fear of war on the part of her own subjects, may be regarded as some punishment for the insane violence of her press and people, which drove the government into such an exhibition of national courtesy, and proved, that it is in a constitutional monarchy that the mob is the ruling power, and not in a republic.

As we have become pretty well accustomed, within the last year, to the manifestations of injustice toward the United States by a very large portion of the English press, and even to their openly expressed wishes that the Confederates may succeed in their attempts to dismember the Union, the warlike ebullition of the English people upon the capture of Mason and Slidell was less surprising to us than it would otherwise have been. But we must admit, that it was with no little astonishment that we have perused, in the columns of the New York Times, of January 4th, an article purporting to be an opinion of M. Hautefeuille upon this subject, to which we have already referred. Known as an extreme supporter of neutral, as against belligerent rights, it might have been expected that his views, based upon what he deemed the true principles of international law, would be adverse to the right of capture, because he has advocated, to the full extent, the principle, that free ships make free goods, and of course free persons; and maintains that, unless the ship is let out to the belligerent for the purposes of the transportation, there is no violation of neutrality. Rejecting, as he does, the British decisions as authority, he himself cannot be regarded as authority on the questions at issue, and the expression of an opinion by