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and thus set sail for Southampton. While on the voyage the TRENT was intercepted by the San Jacinto, a public armed vessel of the United States, under command of Captain Wilkes, Messrs. Mason and SLIDELL were removed to the San Jacinto, and the Trent was allowed to proceed on its passage.
In discussing the questions that arise from these facts, or in discussing any legal question, it is not to be expected that a precedent will always be found agreeing in every particular with the case at issue. Besides, in settling international relations, a precedent is not the most satisfactory authority, for there is, in reality, no tribunal before which questions between States can be adjudicated, and, therefore, a decision in one country may not be adopted by another. But all international law is founded on certain great principles of right, and a decision made is only an illustration of some such principle.
If, therefore, we would come to a correct conclusion as to the rights of nations in any particular instance, we must first understand, and, during such a discussion, always remember, what is the foundation, source and object of international law. Here, too, we can have no difficulty, for all modern writers agree in stating that the law of nations consists in the application of the principles of natural justice to international relations, and that the great object is to work out as little harm as possible to one another. As PhilliMORE, in his learned work, (page 48, vol. 1,) says:
“From the nature, then, of States, as from the nature of individuals, certain rights and obligations towards each other necessarily spring. These are defined and governed by certain laws. These are the laws which form the bond of justice between nations, 'quo societatis humanæ vinculum continent,' and which are the subject of international jurisprudence, and the science of the international lawyer-jus inter gentes."
And then, on page 49, the same writer adds: “To secure, by law, throughout the world, the maintenance of right against the aggression of the national wrong-doer, is the primary object of the commonwealth of States, and the great duty of the society of societies.”
Kent, also, in his Commentaries (vol. 1, page 2) says:
“ The law of nations is a complex system, composed of various ingredients. It consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality, and to the relations and conduct of nations, and of a collection of usages, customs and opinions, the growth of civilization and commerce; and of a code of conventional or positive law. In the absence of these latter regulations, the intercourse and conduct of nations are to be governed by principles fairly to be deduced from the rights and duties of nations and the nature of moral obligations.
WHEAton, also, (Wheaton's Elements of International Law, page 22,) gives utterance to the same idea when he says: “International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces as consonant to justice, from the nature of the society existing among independent nations.”
But we will not multiply these citations. It is evident that here is the foundation of all international law-the working out of the principles of natural justice, so that each State may exercise equal rights, and receive no unnecessary harm or injury from any other State. Of course, there is a code of conventional or positive law which may be gathered
from treaties of peace, alliance and commerce, declaring, modifying or defining the pre-existing international law. But no such treaties will be found to be opposed to this great principle of justice, except it may be in the case of some individual nation, which has, perhaps, sold its birthright for a mess of potage. A treaty of that kind, however, could not, of course, ever reach the dignity of law, as between nations other than the contracting parties, and cannot, therefore, need noticing here.
Growing out, then, of this ruling principle, is the right of self-preservation, which, as Phillimore says, (vol. 1, page 226,) " is the first law of nations as it is of individuals." WHEATON (page 85) expresses the same idea a little more fully. He says: “ Of the absolute international rights of States, one of the most essential and important, and that which lies at the foundation of all the rest, is the right of self-preservation. It is not only a right with respect to other States, but a duty with respect to its own members, and the most solemn and important which the State owes to them. This right necessarily involves all other incidental rights which are essential as means to give effect to the principal end."
So, also, Kent, in his Commentaries, (vol. 1, page 23,) says : " Every nation has an undoubted right to provide for its own safety and to take due precaution against distant as well as impending danger. The right of self-preservation is paramount to all other considerations."
PHILLIMORE (on page 227, vol. 1) shows the extent and force of this principle, when he adds:
" International law considers the right of self-preservation as prior and paramount to that of territorial inviolability, and where they conflict, justifies the maintenance of the former at the expense of the latter right.”
So, also, we find VATTEL (vol. 3, c. 7, $133) maintaining the same view: “ It is certain that if my neighbor gives refuge to my enemies when they would have been worsted, and have found themselves too feeble to escape me, leaving them time to collect themselves and to watch for an occasion to try a new invasion of my land, this conduct, so prejudicial to my safety and my interests, would be incompatible with neutrality. When, then, my vanquished enemies withdraw themselves to his domain, if charity does not permit him to refuse them passage and safety, he ought to make them pass beyond or outside as soon as possible, and not to suffer them to lie in wait to attack me afresh. Otherwise he gives me the right to go and seek them upon his land.”
There are also in the books many cases illustrating the great extent to which this principle has been carried. We shall
, however, content ourselves with the citation of but one of them, which is familiar to all. We refer to the case of the capture of the CAROLINE, in 1838. It will be remembered that Great Britain alleged the Canadian rebels not only found shelter on the American frontier of the Niagara, but that they obtained arms by force from the American arsenals, and that shots were fired from an island within the American territories, while a steamer called the CAROLINE was employed in the transport of munitions of war to the island, which, when not so employed, was moored off the American shore. In this state of things a British captain and crew having boarded, forcibly captured and fired the CAROLINE, cut her adrift and sent her down the falls of Niagara. The act was made the subject of complaint by the American government, on the ground of violation of territory, and vindicated by Great Britain on the ground of self-preservation. If
this version of the facts was correct, it was undoubtedly a complete vindication of the act.
Thus, then, we see how far this right of self-preservation allows a nation to go, in enforcing its rights. And might we not stop here and show that there is, as a mere matter of principle, very little difference between entering upon neutral territory, as the English thus did, for the purpose of seizing the vessel in question, and the visiting and searching the ship of a neutral and taking from it rebels who were on their way to a neutral territory for the purpose of there plotting and working out the destruction of their country? Were there no law known among nations, giving a State the right, under such circumstances, of visiting a neutral vessel and obtaining possession of such agents of evil, certainly this law of selfpreservation would dictate and necessitate it.
But there is still another fundamental principle of international law, regulating the acts of neutrals during a war, which principle naturally follows from the foregoing. We have seen above, that where a neutral harbors either belligerent, his territory loses its inviolability. From this rule we easily deduce the more general one, that a neutral must not take any part in the contest; he has no right to favor or injure either belligerent. This principle--so eminently just in itself—is too familiar to need more than a passing notice. Among the nations of antiquity, the right of one to remain at peace while other neighboring nations were engaged in war, was not admitted to exist. He who was not an ally was an enemy. But since international relations were “regulated by the principles of justice applicable to those relations," a different rule has existed, and
middle-men,' as Grotius calls them, will be found during every conflict. If, however, a nation would hold the office of a neutral, and retain the rights and privileges of such a position, all its acts must be free from favor towards either belligerent. BYNKERSHOEK says, (Bynkershoek, Quaest. Jur. Pub. lib. 1, cap. 9 :) " The duty of neutrals is to be every way careful not to interfere in the war, and to do equal and exact justice to both parties;
as to what relates to the war, let them not prefer one party to the other, and this is the only proper conduct for neutrals." PhilliMORE, in treating of this same subject, says, (vol. 3, page 202 :) “The neutral is justly and happily designated by the Latin expression in bello medius. It is of the essence of his character that he so retain this central position as to incline to neither belligerent. He has no jus bellicum himself; but he is entitled to the continuance of his ordinary jus pacis, with, as will presently be seen, certain curtailments and modifications which flow from the altered state of the general relations of all countries in time of war. He must do nothing by which the condition of either belligerent may be bettered or strengthened-quo validor fiat."
In the light of these citations, and numberless others to the same effect that might he made, can there be any doubt but that the captain of the Trent was doing an hostile act in conveying, as he did, the commissioners of the Confederate States? Was he not doing all he could to benefit one belligerent and injure the other? It will not be pretended that the character of these persons, and the object of their mission, was unknown. If any harm could be done the United States, it was known that it was the object of these commissioners to do it. The captain of that vessel lent himself to the service of the Confederate States for that purpose, and, in doing so, grossly violated the character
of a neutral. We submit, therefore, that the principle of self-defence, so nobly illustrated by Great'Britain in the case of the Caroline above referred to, would, under such circumstances, require us to prevent the consummation of such an act by similar means, did the law of nations furnish no other remedy.
But still there was no necessity for following such an extraordinary precedent, nor could we be justified in doing so, since (if for no other reason) we have a very simple remedy, and, had it only been properly used, an effectual one; for, growing out of the foregoing principles, has arisen the doctrine of contraband of war; and the right of visit and search in time of war necessarily follows. We have seen above that a neutral has no right to strengthen or injure either belligerent. As a conclusion, then, from this principle, certain articles have been admitted by all nations to be contraband, and the general freedom of neutral commerce with the respective belligerent powers is, therefore, subject to such exceptions. The reason for this restriction exists in the fact, as we have stated, that “the principles of natural justice require” no assistance in the war should be furnished by a neutral to either party. As Mr. JENKINson, afterwards Lord LIVERPOOL, in his “discourse on the conduct of Great Britain to neutral nations,” in 1758, says:
“ The liberty of navigation, in fair construction, can mean no more than the right of carrying to any mart, unmolested, the product of one's own country or labor, and bring back whatever may be received in return for it; but can it be lawful that you should extend that right to my detriment—that you should exert it in the cause of my enemy?”
If, therefore, we wish to determine, at any time, whether any article is contraband, all we have to know is whether the article in question would necessarily help to advance the interests of either belligerent. Warlike instruments or materials, by their own nature, fit to be used in war, are not the only weapons a belligerent can make serviceable. Strategy is frequently more effective than bullets. Therefore, all messages or messengers, despatches or commissioners, sent by a belligerent for the purpose of strengthening his cause in the war, are contraband.
We thus reach this position as a natural and necessary conclusion from the foregoing principles, and one could not but feel perfect confidence in its correctness, even had nothing ever been written or decided on th point. For it is pre-eminently just that my friend (a neutral) should not be allowed to help my enemy. This would seem to be particularly the case when a nation is laboring to put down a rebellion that threatens its very existence. Then, if ever, a neutral should keep aloof; for if she is to assist such an enemy in its strategic movements, (in its endeavors to obtain the help of other nations to assist in the destruction of its country,) how tenfold worse than an open enemy she becomes. But, as we have seen, the ability legally to do such injustice does not exist, and a moment's examination will show us that all writers on international law unite jo declaring, in the broadest terms, despatches and commissioners, or embassadors, contraband.
We find this doctrine very clearly laid down by PAILLIMORE, in his work on international law, which we have several times before referred to. He says, (vol. 3, page 370 :)
Official despatches from an official person on the public affairs of the belligerent government impress a hostile character upon the carriers of them,
The mischievous consequences of such a service cannot be estimated, and extend far beyond the effect of any contraband that can be conveyed, for it is manifest that by the carriage of such despatches the most important operations of a belligerent may be forwarded or obstructed. In general cases of contraband the quantity of the article carried may be a material circumstance, but the smallest despatch may suffice to turn the fortunes of war in favor of a particular belligerent.”
On page 369 of the same volume he adds: “As to carrying of military persons in the employ of a belligerent, or being in any way engaged in his transport service, it has been most solemnly decided by the tribunals of international law, both in England and the United States of North America, that these are acts of hostility on the part of the neutral, which subject the vehicle in which the persons are conveyed to confiscation at the hands of the belligerent."
Wildman, in his Institutes, makes use of the following language: “It is the right of the belligerent to intercept and cut off all communication by despatches. It is not to be said, therefore, that this or that letter is of small moment. The true criterion will be, is it on the public business of the State, and passing between public persons in the public service? If the papers so taken relate to public concerns, be they great or small, civil or military, the court will not split hairs, and consider their relative importance. What appear small words, or what may, perhaps, be artfully disguised, may relate to objects of infinite importance.'
So, also, Chancellor Kent, (vol. 1, page 152,) says:
“There are other acts of illegal assistance afforded to a belligerent besides supplying him with contraband goods, and relieving his distress under a blockade. Among these acts, the conveyance of hostile despatches is the most injurious, and deemed to be of the most hostile and noxious character. The carrying of two or three cargoes of stores is necessarily an assistance of a limited nature; but in the transmission of despatches may be conveyed the entire plan of a campaign, and it way lead to a defeat of all the projects of the other belligerent in that theatre of the war. The appropriate remedy for this offence is the confiscation of the ship; and in doing so, the courts make no innovation on the ancient law, but they only apply established principles to new combinations of circumstances. There would be no penalty in the mere confiscation of the despatches. The proper and efficient remedy is the confiscation of the vehicle employed to carry them; and if any privity subsists between the owners of the cargo and the master, they are involved by implication in his delinquency.”
WHEaton, also, is equally explicit on this point. He says, (page 562 :) “Of the same nature with the carrying of contraband goods is the transportation of military persons or despatches in the service of the enemy."
Then, on page 565, we find this same learned commentator quoting and approving of the following extract from the opinion of Sir William Scott, in the case of the OROZEMBO, (Robinson's Adm. Rep. vol. 6, p. 430 :)
"The carrying of two or three cargoes of stores is necessarily an assistance of a limited nature; but in the transmission of despatches may be conveyed the entire plan of a campaign that may defeat all the projects of the other belligerent in that quarter of the world. It is true, as has been said, that one ball might take off Charles XII., and might produce the most disastrous effects in a campaign; but that is a consequence so remote and accidental, that in the contemplation of human events it is a sort of eva