“The Search of the Trent”. Dundee Courier, Wednesday 18 December 1861, p.2 col.1-2 (pdf image)
(Printed Dec 18 1861)
This editorial responds in detail to the arguments in Matthew’s second letter. The Editors’ point is that the legality of the Union action in the Trent Affair hinges on whether the two sides had been recognised by Britain as belligerents or not.
THE SEARCH OF THE TRENT.
We publish to-day a letter from a correspondent, who has previously addressed us on the above subject, and the fact induces us to return to a matter which, we hoped, had been made sufficiently clear. A large part of the communication we refer to relates to topics which have no connection with the point in dispute between our correspondent and ourselves, and that portion we may at once strike out as surplusage which it unnecessary to allude to. We have previously indicated the possibility of the old American Union splitting into more than two Confederacies, but present discussion of such speculations only overlays and obscures the point to be settled. That point is as to the legal or illegal character of the act committed by Captain WILKES. That has to be decided by reference to the law, and a dispassionate consideration of its provisions. We are told that it is right to blend law and feeling, but the way in which that assertion is put is another proof of the confusion of the mind from which it emanates. Feeling has no proper part to play when it has to be ascertained what the law is; but feeling has a considerable share in regulating its application. Our correspondent would make it appear that it is the feeling of the parties to a case which regulates the application of the law. That is simply a mistake, as he might have seen, if he had paid attention to the examples he gives us. He instances the verdict of a jury, the sentence of a judge, and the prerogative of mercy possessed by the Crown; but those only arise after the law has been ascertained and declared. They have no part in settling what is. Our correspondent seemed sensible by anticipation that the answer may be against him, for he endeavours to cast discredit upon the law. He says that it rests mainly upon the character of some Dutch jurists. If it were so, it would be no reason for disobeying it while it is law; but the assertion is another mistake. Its origin bears a much earlier date than the writing of any Dutch jurist. It began before there was a community of Dutchmen, and has been recognised in later times by English and American judges, whose dicta, we shall presently have occasion to quote. The Dutch jurists then only continued the record of law, which has been contributed to by our own countrymen, who lived in days when men were not inferior in patriotism to their descendants in the present age. We hope we may take it for granted that our correspondent will agree with us, that if the law can be ascertained, we are bound to abide by it. To contend against such a proposition would be to say that the nation is to become lawless, and a lawless nation is to the community of nations what a lawless individual is to a community of individuals.
Our correspondent, resorting to the tu quoque, retorts upon us the charge of confusion which we brought against him; but he conveniently omits to do what we did, that is, prove it. His confusion consisted in mixing up the conduct to be pursued toward rebels and toward belligerents. He admits that the Confederates are belligerents, and at the same time he asserts that they are entitled to our hospitality, and to the protection of our flag. That is a curious inconsistency, and one which shows either ignorance of what the law is, or a determination to disregard it. If they were rebels, they were political offenders entitled to our protection. In that case a state of war not having arisen, there was no right to search the Trent, to say nothing of taking men out of her. But, Mr MATTHEW, in asserting that they were belligerents, cuts the ground from under his own feet, for, if that be true, nothing is more clear than that there was a right to search the Trent and carry her into port. If our correspondent does not evince confusion, we must get a new meaning for the word.
Starting, then, from the assumption in which our correspondent agrees, that the Confederates are belligerents, we have some more fallacies to deal with, and shall rest our case mainly upon the judgments of legal authorities who are not Dutch jurists. It has been contended that the two Confederates taken were peaceful men, and, therefore, not to be regarded belligerents. According to the law, every individual of a State engaged in war is a belligerent. On that point, Chancellor KENT, whose judgment has never been disputed, says — “a war between the Governments of two nations is a war between all the individuals of which the one, and all the individuals of which the other nation is composed,” that dictum, while it is unreversed, settles the point.
Again, it has been argued that, because the Confederate Commissioners embarked at a neutral port, and were going to another neutral port, they were, therefore, not liable to capture. Lord STOWELL, whom, we suppose, our correspondent will admit to be a great authority, summarily disposed of that objection. In a case, relating to a seizure of a vessel called the Friendship, he asked — “can it be allowed that neutral vessels shall step in and make themselves a vehicle for the liberation of such persons whom the chance of war has made, in some measure, prisoners in a distant port in the West Indies,” and he answers the question to the negative. The decision is one which completely covers the present case.
It has been also argued that the Confederate Commissioners, being Ambassadors, were entitled to protection. That is another error. In the first place, they were not Ambassadors. An Ambassador is a person accredited by one Government, and accepted and recognised by another. We do not know what credentials the gentlemen captured had, but we know that they had been neither accepted nor recognised as Ambassadors by our Government, and that they were not entitled to any special protection which may hedge round the ambassadorial character. The fact, however, is, that if they had been Ambassadors they were liable to seizure. The point arose in the case of the ship Caroline, and the following is an extract from the judgment of Lord STOWELL, “You may stop the Ambassador of your enemy on his passage.” While that decision stands, it does not matter whether the Confederate Commissioners were, or were not Ambassadors.
We are entitled to say then, that some points, if the law is to be observed, are beyond doubt. These for instance — (1) that all the subjects of states at war are belligerents; (2) that all, whether they be simple civilians, diplomatists, or soldiers, embarked board neutral vessels, are liable to capture; (3) that it is of no consequence whether they are voyaging between neutral ports or not; (4) that neutral vessels are bound not to carry them under the penalty of suffering the consequences of disobedience. When Mr MATTHEW assumes that the Confederates are belligerents, he leaves himself without a legal foothold for argument. If he means to contend that the law should be altered, that is another matter, and we should like to know his reasons; but even if he were establish a case, the alteration could not be retrospective, without the consent of both parties. The truth is that the only point open to argument is the one raised by the law officers of the Crown. Had Captain WILKES a right to take the Confederate Commissioners out of the ship, without the decision of a Prize Court? The reference which Mr MATTHEW makes to the proclamation of neutrality, is the oddest thing his letter. He does not yet appear to see that that proclamation is at the bottom of all our trouble. If it had not been for that, and for the recognition of the blockade, there would have been no dispute as to whether the Confederates are to be regarded as rebels or belligerents, and no pretence for the searching of a British vessel. Our Minister had to do nothing in order to be safe, but he did something and plunged us into danger. There was no legal necessity to issue a proclamation of neutrality, and thus, by implication, to recognise the Confederates as belligerents. By issuing it, an ambiguous position was produced, and our commerce greatly injured. If Mr MATTHEW could see that, he would see also that we have to deal with our Minister for his act, without which there would have been no pretext for the act of the Federal Government. He, however, assumes very complacently that our Cabinet, out of a desire for peace, issued the proclamation as a pledge of sincerity and goodwill. Suppose it to be so, does it follow, as Mr MATTHEW seems to think, that the American Government cannot call upon us carry out the proclamation? Was it a pledge on paper, to be broken in action? Was it a proof of goodwill to issue the proclamation, without the intention of carrying it into effect? Would it be a proof of sincerity, after issuing it, to allow it to be broken through? We should like Mr MATTHEW to answer those questions. Surely the sincerity and goodwill had to be proved by upholding the proclamation as well as issuing it; and if it is to be regarded as valid (a point upon which we express no opinion), the Federal Government has a right to call upon our rulers to prosecute those who disobey commands put forth in the name of the QUEEN. We have heard of a great many unworthy things being suggested, but we do not recollect one so unworthy as this; that a great nation, after recognising the existence of hostilities between two States, and forbidding its subjects to aid either, to say that the issuing of the command satisfied its obligations, and it was not bound to bring to justice those who disobeyed.