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that of the nation against which they were in rebellion.

This is important, for the reasons solely, that the act of the commander of the San Jacinto, for which reparation was demanded by Great Britain, is de fensible only as the exercise of a lawful belligerent right.

The right of public vessels of a belligerent nation to arrest upon the high seas, and search all merchant vessels of a neutral power, for the purpose of ascertaining if they are, in any manner, employed in the service of the adverse belligerent, is a right which has never been denied or questioned by any ! authority among nations.

The employment of a neutral merchant vessel in the service of a belligerent power, by the law of nations, subjects her to the penalty of confiscation, if captured by the public vessel of the adverse bel ligerent, while engaged in that service.

By the law of nations, as asserted by the British elementary writers, and as laid down and adminis tered by her courts, the carrying of ambassadors, dispatches, or military persons of a belligerent, by a merchant vessel of a neutral power, is such an employment as subjects the vessel, if captured in the service, by the public ship of the adverse belligerent, to the like penalties, as if engaged in the carrying of contraband of war, for the service of the enemy.

"The belligerent may stop the ambassador of the enemy on his passage," says Sir William Scott, the great British oracle of public law. And again, he

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says: "It seems to me, on principle, to be but reasonable, that whenever it is of sufficient importance to the enemy, that such persons should be sent out on the public service, at the public expense, it should afford equal ground of forfeiture against the vessel that may be let out for a purpose so intimately connected with hostile operations."1

The numerous decisions, as well by the British courts of admiralty, as by the Lords, establishing this doctrine, as also the doctrine that the conveyance of hostile dispatches justly subjects the offending ship to confiscation, were cited in the first edition of this work.2

It should be borne in mind that there was no pretence of the practice of an imposition upon the neutral vessel, the Trent, by the smuggling or concealing the rebel emissaries on board of her, upon her voyage between neutral ports. Their character and mission were alike notorious; and the service was undertaken with the full knowledge that it was service in behalf of the insurgents in the United States, recognized as belligerents by Great Britain, and it was boldly entered upon as such service.

From the notorious character of the emissaries, it was well known that their dispatches from those who sent them (their letters of authority being dispatches of the highest character), must necessarily have been borne with them, and, of course, not deposited in the mail bags of the packet.

The case, therefore, does not come within the exception suggested by Mr. Phillimore, in his able treatise on international law, nor can it be regarded

The Orozembo, 6 Rob., 434.

2 Vide p.

as coming within the principle urged by the justly celebrated French writer upon the rights of neutral nations, Hautefeuille, in combating the extreme doctrine upon this subject of "the official organ of the English admiralty."

"The advocate of Her Britannic Majesty, in the office of admiralty," Mr. Phillimore says, "with respect to such a case as might exempt the carrier of dispatches from the USUAL PENALTY, it is to be ob served, that, where the commencement of a voyage is in a neutral country, and is to terminate in a neutral port, or at a port to which, though not neutral, an open trade is allowed, in such a case there is less to excite the vigilance of the master, and therefore it may be proper to make SOME ALLOWANCE for any imposition that may be practised upon. him."1

And Hautefeuille says:

"A packet-boat, charged with a postal service, receives all the letters, all the dispatches which are committed to it by the post-office, without exception -it is not thus acting for a special case-is not in the service of the belligerent state, and simply discharges the mission intrusted to it in peace as well as in war. If, among the letters with which it is thus freighted, there be found dispatches of war, whatever may be their importance, the vessel has failed in none of the duties of neutrality, has com mitted no act of war, has not become denationalized, since she has simply performed the commission intrusted to her by her own government, a neutral government, and a commission compatible

13 Phill., 371.

with the duties of neutrality. Moreover, it can be affirmed that she has committed no act of contraband of war."1

And again, he says: "The opinion of Sir Wil liam Scott can have no weight in my eyes. As the official organ of the English admiralty, he was bound to sustain the doctrines of his country. He has clothed them with all the prestige of his learning and his talent. But if we adopt his system, all correspondence would become impossible in time of war, between neutrals and belligerents, and even very difficult between nations remaining loyal spectators of the struggle, except through the intervention of the belligerent that is most powerful on the sea." "No neutral ship would consent to take charge of the postal service, in the fear that a suspected letter should be found among the dispatches, and thus compromise her safety. Consequently, the belligerent that was the most powerful, would alone become charged with the maritime correspondence of the world, and it is easy to comprehend the advantage it might draw from the monopoly.""

Regarding the employment in which the Trent was engaged, solely in the light of British authority, to be characterized in conformity with British precedent, maintained by that government in the plenitude of her belligerent power, against the protests of all neutral nations, one may not readily reconcile the assertion, that the obnoxious individuals were "taken from on board a British vessel,

Droit des Nations Neutres, 465.

'Hautefeuille, Droit des Nations Neutres, 466, 468.

the ship of a neutral power, WHILE SUCH VESSEL WAS PURSUING A LAWFUL AND INNOCENT VOYAGE," with that high-toned integrity which should ever pervade the public declarations of those who are intrusted with a nation's destiny, and which has been not unfrequently paraded as the peculiar attribute of the British statesman.

For what particular cause, or on what specific ground, the removal of the emissaries of the insurrectionists from on board the Trent, by the commander of the San Jacinto, was regarded as a violation of international law, Earl Russell does not venture to state in his note to Lord Lyons.

But the world is not left in ignorance of the real and sole cause of complaint, and that cause sufficiently accounts for this singular reticence of the British minister.

Publicity has been given to the professional opinion of the law officers of the British Crown, and the action of the government is known to have been based upon that opinion.

Had Earl Russell expressed the precise ground of complaint of the removal of the rebels from the British vessel, as an infraction of international law, as the same is embraced in the opinion of the law officers, the world would have read in amazement, substantially as follows:

"We do not complain that a public armed vessel of the United States subjected a British mail steamer to visitation and search upon the high

seas;

"We do not contend that the British mail steamer was not lawfully subject to capture and confiscation, for resisting the exercise of this belligerent right;

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