United States, failures in 1861..... 316 Vessels, arrivals of, at N. Y., 1851-61 273

GEORGE W. WOOD, Printer, No. 2 Dutch Street, N. Y.

THE

MERCHANTS' MAGAZINE

AND

COMMERCIAL REVIEW.

JANUARY, 1862.

INTERNATIONAL LAW vs. THE TRENT AND SAN JACINTO.

FACTS AS TO SAILING AND ARREST OF MESSRS. MASON AND Slidell-PRINCIPLES MORE SATISFACTORY AUTHORITY THAN PRECEDENTS-NaturaL JUSTICE THE FOUNDATION OF INTERNATIONAL LAW-THE RIght of Self-Defence and THE DUTY OF NEUTRALS NOT TO BENEFIT EITHER BELLIGERENT NATURALLY FLOW FROM IT-THE SUBJECT of Contraband of War A NECESSARY CONCLUSION-The right of VISIT AND SEARCH, IN TIME OF WAR, CLEARLY FOLLOWS-The act OF THE CAPTAIN OF THE TRENT IN ALLOWING MESSRS. MASON AND SLIDELL TO TAKE PASSAGE ON HIS VESSEL A GROSS VIOLATION OF THE ABOVE PRINCIPLES-STILL THEIR REMOVAL BY CAPTAIN WILKES WAS WRONG-WE MUST DELIVER THEM UP TO ENGLAND IF SHE PROPERLY DEMANDS IT OF US-WE OWE IT TO OURSELVES NOT TO ALLOW SUCH A CASE TO STAND AS A PRECEDENT-ENGLAND SHOUld be called UPON TO MAKE REPARATION FOR THE ACT OF THE CAPTAIN OF THE TRENT IN ALLOWING THESE COMMISSIONERS TO TAKE PASSAGE ON HIS VESBEL, &C.

THE seizure of Messrs. MASON and SLIDELL has given rise to many questions of international law, and their arrest on and removal from an English vessel has been made a ground of complaint by Great Britain. These individuals were once Senators of the United States. For the past few months, however, they have been engaged in a traitorous conspiracy to overthrow the government of which they are subjects, and in furtherance of that object have, with others, formed a government of their own, which has been recognised by England and France as a belligerent power. When arrested they were on their way to Europe, on board the TRENT, (a merchant vessel carrying the mail and belonging to persons subjects of the Queen of Great Britain,) as commissioners of the government they had thus helped to form, and for the purpose of obtaining the assistance of European nations in their treasonable endeavors. They first fled from the United States to Havana, and there, after making known their object and position, took passage and were received on the TRENT,

VOL. XLVI.-NO. I.

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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, 'quæ 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."

We

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. 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