« PreviousContinue »
application, and the intercourse be regulated by usages which have the evidence of a much more general consent.
It hardly needs an argument to show that the questions arising in this case of the Trent are to be considered and determined as questions wholly between the United States and Great Britain, and upon the principles and usages which have been promulgated, sanctioned, acknowledged, and claimed as suitable and proper principles to determine the rights and to regulate the intercourse of those two nations; and not, mainly, by any principles which are of general authority and application throughout Christendom.
Clearly the questions at issue cannot be determined by any principles of natural or revealed law. The
The rights of war, and the proper mode of carrying on a war, so far as coercion by force, gunpowder, shot, and shell are concerned, are generally regulated (if regulated) by the usages of mankind, rather than by natural or revealed religion, or even by treaty stipulations. This must almost necessarily be the case, each occasion for hostilities depending upon the peculiar circumstances attending the offence which gives rise to them, and the modes by which the hostilities may be rendered most effective. The general object of offensive warfare is to do injury to the enemy, and thereby compel him to submit to what is required of him.
Even the general laws of war may not suffice to determine the rights of the belligerent and of the neutral in this case, because the general principles regulating war do not reach the special circumstances of the case, as one arising between the United States and Great Britain. Not that there is any treaty stipulation between the two countries which determines their respective rights in reference to this matter. No treaty stipu
. lation exists. Great Britain expressly refused to accede to certain principles which the United States desired to incorporate into a treaty, and which, if incorporated, might have had an essential bearing upon some of the questions involved in
For this very reason, however, no treaty stipulation between the United States and any other nation can be regarded as governing this case, or even as having a legitimate bearing on the questions arising in it. Mr. Sumner, in the speech the title of which we have placed at the head of this article, has, with a great, and for the purposes of this case useless diligence, made a collection of the varying expressions of our treaty stipulations with other powers. But the most which these treaties can serve to show is, either that the principles of international law in relation to the subject-matter were unsettled, and that the parties to the treaty desired to have them made certain, in accordance with what they deemed to be the true principle; or that by the rules of law, as generally received, the right or usage was otherwise than as settled by the treaty stipulation, and that the parties to the treaty were desirous of having the matter placed upon a different, and, as they deemed it, a better basis. In either view, the treaties furnish no argument whatever against the positions assumed by Captain Wilkes. On the latter supposition, the treaties, so far from furnishing an argument against his proceedings, would, as between the United States and Great Britain, furnish very conclusive evidence in his favor.
So in relation to the intervention of France, and other powers of Europe, by the expression of their hopes that the United States would accede to the demand of Great Britain ; and in reference also to M. Thouvenel's suggestion, that the seizure was erroneous, and that the United States would be in the wrong if they insisted upon holding the prisoners. The intervention was valuable as an evidence of courtesy and friendly relations between those powers and the United States, shown by the expression of their desire that we should not enter into a conflict with Great Britain in which they could not sustain our right on their principles. But unless it may be shown that their principles are those upon which Great Britain has acted toward the United States, or at least that they are the principles which at the time were the governing principles as between the United States and Great Britain, those interventions and representations can have no tendency to show the right or the wrong, as between the parties to the matter at issue.
This is made especially apparent by the despatch from M. Thouvenel to M. Mercier, which was read to Mr. Secretary Seward, in which M. Thouvenel argues the question upon the rules of law as they are held by France, and upon the stipulations of the treaties between the United States and France ; whereas the principles maintained by France in relation to neutral rights are not acknowledged by Great Britain, and the United States have no treaty with her of the same character, in this respect, as they have with France.
So, again, in relation to the writings of foreign publicists. Although undoubtedly such writings are evidence of the principles of international law, the evidence may be limited to the usages and customs of some nations, and not of others. Such writings cannot avail as evidence in this case, unless they recognize the principles asserted by Great Britain, and assented to or acquiesced in by the United States. This is particularly
. true of M. Hautefeuille, who has made himself somewhat impertinently busy in reference not so much to the principles which govern the case, as in denunciation and vituperation of the United States. He disagrees with Wheaton, and rejects entirely the authority of Lord Stowell, whose character as a jurist has not only received, as we have seen, very strong commendation in this country, but the most of whose decisions were regarded as authoritative expositions of the rights of belligerents against neutrals long before M. Hautefeuille was even heard of here. It is certainly something more than modest assurance when M. Hautefeuille, ignoring the authority of a judge who has decreed the confiscation of millions, perhaps, of American property, for violation of neutrality, and to whose decrees and judgments the sufferers and the government submitted, if not without a murmur, at least without a resort to arms for that cause, - ignoring also the fact that American publicists had lauded his great learning and eminent character, recognized his authority, and promulgated his principles as the governing, if not the best, principles of international law,- presumes to denounce the proceedings of Captain Wilkes, and to censure the United States because they have not conducted in relation to an English vessel according to his standard in regard to neutral rights.
It is perhaps not necessary to our present purpose, but we take occasion to say, that, upon any open question, not settled by agreement or consent between the two nations, but upon which each has maintained an opinion adverse to that of the other, either has the right, at any time, to act upon the principle contended for by the other, and thus to express an assent to it, if there has not previously been something to show a withdrawal. This is the usual mode by which assent is given by implication, and in relation to such subjects it is sufficient if the assent is expressed when the occasion arises for it.
We proceed to inquire into certain principles of international law as held by Great Britain, and as recognized by the United States, their judicial tribunals and jurists, which may apply directly, or by analogy, to the case of the Trent.
The convenience or necessity of a belligerent has sometimes led to the violation of neutral territory, as in the case of the burning of the steamer Caroline within the limits of the State of New York; and the power of the belligerent has occasionally been sufficient to resist a claim for redress. In other words, the party committing the wrong, in the language which the London Times lately applied to Great Britain, has “ fought it through," instead of doing justice. But such a course does not settle the principles which are applicable to future cases.
The main difficulties in determining the rights of the belligerent and the neutral have arisen in relation to the vessels of the latter navigating the open sea, which is the highway of all nations. It has been asserted by some, that a vessel on
a the ocean is to be regarded as a part of the territory of the government to which she belongs; but this position cannot be maintained, either in the nature of the thing, or according to the received rules of law. If there is any similarity between the two, it is only of a limited character. The term territory is sometimes applied to a vessel with the meaning merely that she is under the jurisdiction and laws of the nation to which she belongs, but with no intention to assert an immunity from search and seizure of the ship for violation of neutrality. Such was evidently the use of the term by Mr. Webster in his negotiation with Lord Ashburton. The belligerent and the neutral are alike entitled to pass and repass upon the
ocean, and there is no territory there. The belligerent has the right to carry on his hostilities against his enemy wherever he can find him on the high seas, and the neutral character of a vessel there cannot be known except upon inquiry, for which purpose visit is allowed ; — whereas neutral territory manifests itself, is known, and is to be respected without visit, search, or inquiry, except upon evidence of a violation of neutrality.
In an article on the affair of the Trent, in the February number of the London Law Magazine and Law Review, — the tone and temper of which are in marked contrast with the frothy and malignant issues of Blackwood, the Edinburgh, the North British, and even of the Christian Observer,* — it is
stated that, in a paper upon the subject read by Mr. C. Clark before the Juridical Society, he maintained as a first proposition, “ that a ship is, as a rule, part of the soil of the country to which it belongs.” In a subsequent part of the paper he said that the rule that each nation claims jurisdiction over its own vessels at sea depends on the principle that every vessel is part of the state to which it belongs; and he adds : “ This principle I am prepared to maintain, and must do so, for it will become of much importance in a future stage of this discussion.” But he certainly does not succeed in obviating the objections of Mr. Manning to that doctrine, in his Commentaries on the Law of Nations, which Mr. Clark cites and attempts to controvert; and assuredly it is no more necessary, in order to substantiate a claim to jurisdiction over
* The January number of the Observer betrays its ignorance of American affairs by speaking of “Lord Lyons, the British Ambassador at New York," and airs its vocabulary by a liberal utterance about “preposterous arrogance,” “ ridiculous pride," " national vanity,” “arrogance and bluster," "contemptuous disregard of the rights of other nations,” &c., &c., and cloaks all this vituperation of the United States under a sanctimonious assumption of the right of Christian rebuke.
Commenting on the affair of the Trent, the Observer speaks of “a display of violence towards Miss Slidell, which might have, and probably would have, terminated in bloodshed, but for the heroic conduct of the English commander, who threw himself between her and the bayonets of the marines." Quære, on which side was the danger of bloodshed? If Commander Williams's story about Miss Slidell's conduct toward Lieutenant Fairfax were entitled to any credence, it would seem that the danger was on the part of the marines, and that they must have presented their bay. onets (if presented) in self-defence.