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THE

JOURNAL OF JURISPRUDENCE,

1862.

VOL. VI.

EDINBURGH:
T. & T. CLARK, LAW BOOKSELLERS, GEORGE STREET.
GLASGOW: SMITH AND SON. ABERDEEN : WYLLIE AND SON.

LONDON : STEVENS, SONS, AND HAYNES.

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27 AUG 1971

VARY

MURRAY AND GIBB, PRINTERS, EDINBURGH.

TRE

JOURNAL OF JURISPRUDENCE.

WAS THE SEIZURE OF THE SOUTHERN COMMISSIONERS LEGAL?

We do not deem any apology necessary for discussing in a legal journal this all-important question. The press, it is true, has already, with the ability and vigour which distinguish British journalists, completed an investigation; and the writers have turned aside to new inquiries, as if everything had been said about the capture which was worth saying on the subject. We cannot, however, believe that legal readers are yet satisfied with the discussions which have taken place. The issue of war betwixt Great Britain and America is so momentous, to depend upon the rightful solution of a problem of international law, that they who are most familiar with the subjects of inquiry will be the last to form hasty conclusions. Nothing can more strikingly show the importance and dignity of the legal profession in a civilised State, than the course adopted by the Government, and sanctioned by the people, on receipt of the news of the boarding of the Trent. The first step adopted was to ask eminent lawyers their opinion of the legality of the act, and according to the leaning of that opinion the action of the Government was shaped for better or for worse. The consulted lawyers knew that peace or war, in all probability, depended on the result of their deliberations; and so knowing, they doubtless applied themselves to the task, under a most solemn sense of responsibility. We do not know what their opinion was, further than that they regarded the manner of making the seizure to be contrary to international precedent. We are ignorant whether they look upon the Southern Commissioners as parties who might rightfully be seized, or whose

VOL. VI.--NO. LXI. JANUARY 1862.

presence on board a neutral vessel would warrant its capture. Until the latter branch of the subject be fully discussed, and an intelligent, opinion formed upon it, we cannot believe that the people will be content to rest satisfied with the inquiry on the point of form. Undoubtedly the form of using an international right may raise a substantive grievance. An abuse or contempt of forms in the intercourse betwixt a belligerent and a neutral on the high seas may be the method adopted by the belligerent to show his contempt for the neutral power itself,-a disrespect which, if not resented, may lead to grosser offences of the same kind. With all this in view, the people will not shut their eyes to the fact that the breach of form alleged in this instance is, that the belligerent cruiser took from the neutral the contraband of war, and did not carry the neutral vessel itself into port, that the question of contraband might be adjudicated upon by a Prize Court. The complaint of the neutral at first sight seems to be, that the cruiser was more scrupulous than he might have been by the law of nations. It is only at first sight that this view of the matter occasions any misgiving. When investigated, the real complaint regarding the form of capture is discovered to be, that a naval officer should have taken upon himself the functions of a judge, should have given judgment against the neutral without hearing parties, and by means of an armed force should have instantly executed his own decree, by there and then seizing the alleged contraband for his own purposes. From the earliest times, nations have looked with the utmost jealousy upon any attempt by belligerents to invest their naval officers with quasi judicial powers, either over enemy's ships or over neutrals. Even during times when naval warfare was conducted with far greater rigour than would now be tolerated, no power ever pretended to such a dangerous right as to make captors judges of the propriety of their own captures. Had any such monstrous rule been followed, there would have been no necessity, during the French war, of such a court as that in which Lord Stowell presided, and where, by a series of judgments distinguished by every judicial quality, he applied the principles of international law in a manner to command the homage of both hemispheres. The question, accord ingly–which appears one of form merely-lies really and truly at the foundation of the law of belligerent and neutral rights. To concede such a form would be to destroy the whole system of law which successive centuries have been gradually rearing up. We could scarcely expect officers of armed cruisers, with their rough and ready sea manners, calmly to investigate, and rightly to determine, questions which taxed all the rare ability of a Stowell, and which perplex the most industrious and ablest espounders of the law of nations. But we must not disguise that the act of the captain of the cruiser may be represented in a very different light, and doubtless will be so in the communication from the American Government, which may be made public before these pages reach the hands of our readers. It may be represented that the case was so exceptional, that it cannot with propriety be judged of by standards applicable to a very different state of society. No precedent, it may be argued, is laid down in the books as to how a mail steamer, belonging to a neutral power, is to be dealt with when discovered to have on board, amid her general cargo, or among her passengers, a small admixture of contraband of war. It may be pled with considerable force, that it would have been a grievous hardship to have taken the mail steamer, with all her important mercantile correspondence on board, and many innocent passengers, away back to some Federal port, where the question of the liability to detention of the two Commissioners could be tried by an Admiralty judge. Why compel a belligerent to do more harm to a neutral than he himself thought of inflicting? Is it not better, when a question of this kind, with regard to a mail steamer, occurs for the first time in international practice, that a precedent should be set whereby the least amount of detention and injury will be suffered by the neutral ? That is Captain Wilkes' own argument when publicly speaking of the transaction in Boston. The Secretary of the American Navy, in his report to Congress, takes care to guard his department from being supposed to approve of such a precedent. He plainly intimates that the "Trent' ought to have been taken as a prize, and that all vessels must be so treated in like circumstances in future. But the act having been done in Captain Wilkes' own way, it will be defended by the American Government from the plausible point of view which we have already indicated. Many persons in this country may be led away by the plausibilities, or by the feeling that the British Government has taken its stand on the wrongful manner in which the act was done, while less regard has been paid to the substantial legality of the act itself. When war may result, and the most grievous of all wars-a war with kinsmen speaking the same language, professing the same faith

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