We will pass to the next point. If the San Jacinto had a right with respect to the Trent, she had also a duty. The duty was to take the English vessel into an American port and there to try her fairly, with full right of appeal, in the Court of international justice, required by the law, usage, and treaties of Christendom, called the Prize Court. The attempt to claim the privileges and shirk the obligations of a belligerent is simply a monstrous outrage which affects every neutral State. It is worse than idle to suggest that the decision of the Prize Court must have been hostile to the Trent because she carried despatches and envoys from the belligerents. In the first place, it proves too much, for it renders the proceedings of all Prize Courts nugatory, and makes the rough sailor at once captor and judge. The individual might as well execute his own justice on the person he alleges to have injured him. It is an argument subversive of all amicable relations between States. It can have but one effect-to render neutrality impossible. It has often happened that Prize Courts have condemned captors belonging to their own country in the costs and damages of their capture. No longer ago than during the last war, England paid large sums to feeble foreign States in consequence of decisions of her Supreme Court of Prize adverse to English captors. There is no

reason to doubt that the judges who sit in the chair of Story would do justice as well as the successor of Stowell*-though, alas! it might be practically of little consequence, if the President should subject the Judge of the Prize Court, as well as the Judge of the municipal tribunal, to the custody of a military sentinel.

The

In the second place, the anticipation of the judgment of the Prize Court is wholly erroneous. Trent was not, so far as we know, carrying contraband despatches; and she was carrying persons whose character exempted them from the operation of hostilities. The despatches which are contraband are communications from a belligerent to another part of its own kingdom, or to a colony, or to an ally with respect to naval or military operations, or political affairs. These are the kind of despatches which Lord Stowell held (with the approval of American jurists) to be contraband. (The Caroline-The Atalanta, 2 Robinson, Ad. Rep. 440-461.) But despatches from a belligerent (Lord Stowell says) to

*The adoption by America of the decisions of the English Prize Court is a fact of great value, "there is scarcely a decision "in the English Prize Courts at Westminster which has not "received the express approbation and sanction of our national

Courts," says the great American Chancellor Kent, vol. i. p. 68.

his consul resident in a neutral State may lawfully be carried by a neutral vessel, because the functions of the consul relate to the joint commerce in which the neutral as well as the belligerent is engaged. (The Madison, Edwards, Ad. Rep. 224.) Much less, then, are the despatches of a belligerent to a neutral relating merely to questions of amicable intercourse between the two States, of the nature of contraband. (The Caroline, 6 Rob. Ad. Rep. 468.) It is manifest that the interests of the neutral may imperatively demand such an intercourse. Indeed, but little reflection will show that the lawfulness of such intercourse is a necessary consequence from even the limited recognition of a de facto State as a belligerent. A State so recognised must have organs of communication with the neutral. How is the neutral, for instance, to obtain redress for injuries done to her own subjects? She must make her complaints through some regular channel-in other words, she must recognise, for this purpose at least, a Government and a diplomatic officer. But the neutral has rights beyond this. She is entitled to communicate with both the belligerents for the purpose of bringing about peace; for a state of war is a state of unmerited suffering to the neutral, which she is justified in seeking by all lawful means to bring to an end.

"It would be almost tantamount (Lord Stowell says) to preventing the residence of an ambassador in a neutral State, if he were debarred from the means of communicating with his own." Most clearly, therefore, the despatches were not of the nature of contraband; and on this ground the Trent would have succeeded in the Prize Court.

The next question is as to the persons of the envoys. It would be strange if the living man were to be contraband when his despatches were innocent. But it is reported to be said in America, that though the envoy is not exactly contraband (which would be ridiculous), Phillimore may be cited as an authority to show, that he may be seized on his voyage. In Phillimore's book there are two passages on the subject-one in which he is dealing with the question of a civil war, and he says:-"When rebellion has grown, from the numbers who partake in it, the severity of the struggle, and other causes, into the terrible magnitude of a civil war, the emissaries of both parties have been considered as entitled to the privilege of ambassadors so far as their personal safety is concerned 'in hoc eventu [Grotius says] gens una quasi duæ gentes habetur"--a very remarkable expression. Phillimore is here speaking of emissaries between the parties to the civil war. The argument is of course still stronger as to emis

saries to a third State; and in a note he cites the opinion of Bynkershoek, which is to the effect that if both parties to the civil war be de facto independent, they enjoy the full rights of legation; but if one party be still struggling, and not yet independent, he enjoys these rights with regard to third States only:-" ut legatio pleno jure utrimque consistat status utrimque liber desideratur, qui si ab unâ parte duntaxat liber sit ab eâ missi tantum jure legatorum utuntur." Then follow these words, decisive of the present question :—“ ab aliâ missi ad externum principem habentur pro nunciis" (Phillimore, v. 2, pp. 143-4). This is exactly the position of law now relied upon by England. In the other passage-to which alone it appears the Americans have referred-(vol. iii. p. 368), Phillimore is dealing with the subject of contraband, and he uses the very words of Lord Stowell's judgment in the Caroline, which legalizes the carrying of diplomatic despatches by the neutral vessel. Lord Stowell says:

It is, indeed, competent for a belligerent to stop the ambassador of his enemy on his passage; but when he has arrived, and has taken upon himself the functions of his office, and has been admitted into his representative character, he is entitled to peculiar privileges, as set apart for the protection of the relations of amity and peace, in maintaining which all nations are, in some degree, interested. With respect to this question, the convenience of the neutral State is also to be considered; for its interests may