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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-
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,  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,  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
“ 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.,  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.,  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: