Imagens das páginas

MEMoRANDUM – The following Article, intended for the April number of the North American Review, but not finished in season, was completed in that month, and printed for the next number. This will serve to explain why certain matters appear in notes which, if it had been written at a later date, might have found a place in the text, and why its appearance in its present form is delayed until July.

The substance of the legal argument, on the facts then existing, was stated in a Lecture delivered to the students in the Law School of Harvard College, in the

course of the author's duties as Royall Professor of Law, January 17, 1862.

CAMBRIDGE, May 1, 1862.


1. Correspondence relative to the Case of Messrs. Mason and

Slidell. Pub. Doc. 2. Papers relating to Foreign Affairs, accompanying the Pres

ident's Message to Congress at the Opening of its Session

in December, 1861. Pub. Doc. 3. Speech of SENATOR SUMNER, delivered in the Senate, Janu

ary 9, 1862. Washington, D. C.: Scammell & Co. 4. The Trent Affair. The remaining Despatches. Boston

Daily Journal, January, 1862. 5. Additional Despatches on the Trent Case. Boston Daily

Journal, February 12, 1862. 6. Opinion of M. D'HAUTEFEUILLE. New York Times, Janu

ary 4, 1862.

THE affair of the Trent is settled so far as immediate results are involved. Messrs. Mason and Slidell have been delivered up to Lord Lyons, and have reached their destination by the way of St. Thomas and Southampton. There has been no war with Great Britain, no humiliating surrender, no apology, no ovation, nor any great manifestations of rejoicing among the people of England. The most unkind cut of all is the declaration of the London Times that Great Britain would have done as much for two negroes; as she might have done with much more propriety if the United

States had made a seizure on board the Trent of that de-
In the mean time no principles of international law have
been settled in relation to the rights of belligerents and neu-
trals. The demand is couched in the most general terms,
ignoring all the particular circumstances upon which the seiz-
ure was made, and which were supposed by Captain Wilkes to
justify it. It is acceded to with a substantial declaration that
the act was justifiable but for the neglect to bring the vessel
in for adjudication; and the surrender is made on account
of this omission, or because the United States long ago con-
tended for certain doctrines in relation to neutral rights,
which Great Britain strenuously resisted, but which she is
supposed to sustain by this demand;—it does not appear to be
quite certain upon which ground it is placed. At the same
time it is declared, that, if the safety of the Union required the
detention of the captured persons, it would be the right and
duty of the government to detain them; but the effectual
check and waning proportions of the existing insurrection, as
well as the comparative unimportance of the captured persons
themselves, happily forbid a resort to that defence.
Earl Russell replies to this, that the neglect to send in the
Trent was by no means the sole ground of the demand; he
does not admit that Great Britain has abandoned any of her
ancient doctrines, and he informs Mr. Seward “that Great
Britain could not have submitted to the perpetration of that
wrong, however flourishing might have been the insurrection
in the South, and however important the persons captured
might have been.”
How far this assertion of the Secretary of State may be
considered as an admission that Great Britain was justifiable
or excusable in her claim of a right to impress her seamen
when found on board of our vessels, a claim which it was
attempted to sustain by the plea of necessity, and which, how-

[ocr errors]

ever shaken, has never been formally abandoned; and a further admission that the adoption of the act of McNab, in invading our territory and burning the steamer Caroline, (which also it was attempted to justify by this same necessity, and which has never been atoned for,) has a like justification or excuse; and how far, on the other hand, Earl Russell's reply, that Great Britain would not have admitted the safety of the Union to be an excuse for the capture and detention, however flourishing might have been the insurrection in the South, may be regarded as a concession on his part that Great Britain was entirely wrong when she alleged necessity as a plea for impressment in the one case, and for the violation of neutral territory and the burning of the steamer in the other,are matters which remain for diplomatic discussion whenever some new transaction shall require it.

As the diplomatic correspondence has been of no avail to settle any principles of international law, but has rather left

confusion worse confounded, we propose to follow the discusĮsion of those principles somewhat further. Neither the cor

respondence nor subsequent reflection upon the subject has at all shaken our confidence in the opinions which we expressed in the article in our number for January, upon “ The Foreign and Domestic Relations of the United States."

For the right understanding of the subject, we inquire, in the first place, What is to be understood by international law, and from what sources is it derived ?

International law has been defined by Mr. Wildman to be “the customary law which determines the rights and regulates the intercourse of independent states in peace and war.” Sir William Scott (3 Rob. Ad. Reports, 326) remarks, that it was a law “ made up of a good deal of complex reasoning, though derived from very simple rules, and altogether composing a pretty artificial system.” The British government have said that it is “founded upon justice, equity, conven

ience, and the reason of the thing, and confirmed by long usage.” See 1 Phill. Int. Law, [15] 55. Dr. Phillimore states that

Analogy has great influence in the decision of international as well as municipal tribunals; that is to say, the application of the principle of a rule which has been adopted in certain former cases to govern others yet undetermined.” — 1 Int. Law, [35] 68.

The sources of international law, as set forth by the very learned jurist last cited, are the Divine law natural and revealed, reason, and the coạsent of nations. He

He says:

“ The obligations of natural and revealed law exist independently of the consent of men or nations, and although the latter acknowledge no superior upon earth, they nevertheless owe obedience to the laws which they have agreed to prescribe to themselves, as the rules of their intercourse in peace and war. .... . . This consent is expressed in two ways: 1. It is openly expressed by being embodied in positive conventions or treaties. 2. It is tacitly expressed by long usage, practice, custom.”

Ibid., [37] 69. Speaking of the repositories and evidences of the consent of nations, the same author enumerates history, the contents of treaties, proclamations or manifestoes issued by the governments of states to the subjects of them upon the breaking out of war; and he says of the latter, “ These public documents furnish, at all events, decisive evidence against any state which afterwards departs from the principles which it has thus deliberately and solemnly invoked.” (Ibid., [50] 78.) He adduces the decisions of prize courts, and of the tribunals of international law, as an evidence of the consent of nations, and in that connection takes occasion to refer to the judgments of Lord Stowell (Sir William Scott), and to the strong commendations bestowed upon them by Chancellor Kent and Dr. Story, quoting the language of the latter as follows:

« AnteriorContinuar »