States had made a seizure on board the Trent of that de

scription.

In the mean time no principles of international law have been settled in relation to the rights of belligerents and neutrals. The demand is couched in the most general terms, ignoring all the particular circumstances upon which the seizure 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 contended 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

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 discussion of those principles somewhat further. Neither the correspondence 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 consent of nations. 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:

"How few have read with becoming reverence and zeal the decisions of that splendid jurist, the ornament, I will not say, of his own age or country, but of all ages and all countries; the intrepid supporter equally of belligerent and neutral rights; the pure and spotless magistrate of nations, who has administered the dictates of universal jurisprudence with so much dignity and discretion in the prize and instance courts of England! - Need I pronounce the name of Sir William Scott?"- Ibid., [57] 82.

The author adds, also, the concurrent testimony of great writers upon international jurisprudence as another evidence of the consent of nations, for which he cites Wheaton on International Law.

From this examination of the general character, sources, and evidence of international law, it is quite apparent that in many instances the rules which must determine the rights, and which should govern the intercourse, of two nations, may be applicable to those nations alone, while in other cases the rights may be dependent upon principles of a more enlarged application, and the intercourse be regulated by usages which have the evidence of a much more general consent.

It hardly needs an argument to show that the questions arising in this case of the Trent are to be considered and determined as questions wholly between the United States and Great Britain, and upon the principles and usages which have been promulgated, sanctioned, acknowledged, and claimed as suitable and proper principles to determine the rights and to regulate the intercourse of those two nations; and not, mainly, by any principles which are of general authority and application throughout Christendom.

Clearly the questions at issue cannot be determined by any principles of natural or revealed law. The rights of war, and the proper mode of carrying on a war, so far as coercion by force, gunpowder, shot, and shell are concerned, are generally regulated (if regulated) by the usages of mankind, rather

tions. This must almost necessarily be the case, each occasion for hostilities depending upon the peculiar circumstances attending the offence which gives rise to them, and the modes by which the hostilities may be rendered most effective. The general object of offensive warfare is to do injury to the enemy, and thereby compel him to submit to what is required of him.

Even the general laws of war may not suffice to determine the rights of the belligerent and of the neutral in this case, because the general principles regulating war do not reach the special circumstances of the case, as one arising between the United States and Great Britain. Not that there is any treaty stipulation between the two countries which determines their respective rights in reference to this matter. No treaty stipulation exists. Great Britain expressly refused to accede to certain principles which the United States desired to incorporate into a treaty, and which, if incorporated, might have had an essential bearing upon some of the questions involved in this case.

For this very reason, however, no treaty stipulation between the United States and any other nation can be regarded as governing this case, or even as having a legitimate bearing on the questions arising in it. Mr. Sumner, in the speech the title of which we have placed at the head of this article, has, with a great, and for the purposes of this case useless diligence, made a collection of the varying expressions of our treaty stipulations with other powers. But the most which these treaties can serve to show is, either that the principles of international law in relation to the subject-matter were unsettled, and that the parties to the treaty desired to have them made certain, in accordance with what they deemed to be the true principle; or that by the rules of law, as generally received, the right or usage was otherwise than as settled by the