Controversy Over the Trent Case

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London, December 7, 1861

The Palmerston press (and on another occasion I will show that in foreign affairs Palmerston's control over nine-tenths of the English press is just as absolute as Louis Bonaparte's over nine-tenths of the French press) -- the Palmerston press fells that it works among "pleasing hindrances". On the one hand, it admits that the law officers of the Crown have reduced the accusation against the United States to a mere mistake in procedure, to a technical error. On the other hand, it boasts that on the basis of such a legal quibble a haughty ultimatum has been presented to the United States such as can only be justified by a gross violation of law, but not by a formal error in the exercise of a recognised right. Accordingly, the Palmerston press now pleads the material legal question again. The great importance of the case appears to demand a brief examination of the material legal question.

By way of introduction, it may be observed that not a single English paper ventures to reproach the San Jacinto for the visitation and search of the Trent. This point, therefore, falls outside the controversy. First, we again call to mind the relevant passage in Victoria's proclamation of neutrality of May 13, 1861. The passage reads:

"Victoria R."

Whereas we are at peace with the United States ... we do hereby strictly charge ... all our loving subjects ... to abstain from contravening ... our Royal Proclamation ... by breaking ... any blockade lawfully ... established ... or by carrying officers ... dispatches ... or any article or articles considered contraband of war.... All persons so offending will be liable ... to the several penalties and penal consequences by the said Statute or by the law of nations in that behalf imposed.... And ... persons who may misconduct themselves ... will do so at their peril ... and ... will ... incur our high displeasure by such misconduct.

This proclamation of Queen Victoria, therefore, in the first place declared dispatches to be contraband and make the ship that carries such contraband liable to the "penalties of the law of the nations". What are these penalties?

Wheaton, an American writer on international law whose authority is recognised on both sides of the Atlantic Ocean alike, says in his Elements of International Law, p. 565

"The fraudulent carrying of dispatches of the enemy will also subject the neutral vessel in which they are transported to capture and confiscation. The consequences of such a service are indefinite, infinitely beyond the effect of any contraband that can be conveyed. 'The carrying of two or three cargoes of military stores,' says Sir W. Scott [the judge], 'is necessarily an assistance of limited nature; but in the transmission of dispatches may be conveyed the entire plan of a campaign, that may defeat all the plans of the other belligerent.... The confiscation of the noxious article, which constitutes the penalty for contraband ... would be ridiculous when applied to dispatches. There would be no freight dependent on their transportation and therefore this penalty could not, in the nature of things, be applied. The vehicle, in which they are carried, must, therefore, be confiscated.."

Walker, in his Introduction to American Law, says:

"...neutrals may not be concerned in bearing hostile dispatches, under the penalty of confiscation of the vehicle, and of the cargo also."

Kent, who is accounted a decisive authority in British courts, states in his Commentaries:

"If, on search of a ship, it is found that she carries enemy dispatches, she incurs the penalty of capture and of confiscation by judgment of a prize court."

Dr. Robert Phillimore, Advocate of Her Majesty in Her Office of Admiralty, says in his latest work on international law, p. 370:

"Official communications from an official person on the public affairs of a belligerent Government are such dispatches as impress an hostile character upon the carriers of them. The mischievous consequences of such a service cannot be estimated, and extend far beyond the effect of any Contraband that can be conveyed, for it is manifest that by the carriage of such dispatches the most important operations of a Belligerent may be forwarded or obstructed.... The penalty is confiscation of the ship which conveys the dispatches and ...of the cargo, if both belong to the same master."

Two points are therefore established. Queen Victoria's proclamation of May 13, 1861, subjects English ships that carry dispatches of the Confederacy to the penalties of international law. International law, according to its English and American commentators, imposes the penalty of capture and confiscation on such ships.

Palmerston's organs consequently lied on orders from above -- and we were naive enough to believe their lie -- in affirming that the captain of the San Jacinto had neglected to seek for dispatches on the Trent and therefore had of course found none; and that the Trent had consequently become shotproof through this oversight. The American journals of November 17 to 20, which could not yet have been aware of the English lie, unanimously state, on the contrary, that the dispatches had been seized and were already in print for submission to Congress in Washington. This changes the whole state of affairs. Because of these dispatches, the San Jacinto had the right to take the Trent in tow and every American prize court had the duty to confiscate her and her cargo. With the Trent, her passengers also naturally came within the pale of American jurisdiction.

Messrs. Mason, Slidell and Co., as soon as the Trent had touched at Monroe, came under American jurisdiction as rebels. If, therefore, instead of towing the Trent herself to an American port, the captain of the San Jacinto contented himself with seizing the dispatches and their bearers, he in no way worsened the position of Mason, Slidell and Co., whilst, on the other hand, his error in procedure benefited the Trent, her cargo and her passengers. And it would be indeed unprecedented if Britain wished to declare war on the United States because Captain Wilkes committed an error in procedure harmful to the United States, but profitable to Britain.

The question whether Mason, Slidell and Co., were themselves contraband, was only raised and could only be raised because the Palmerston journals had broadcast the lie that Captain Wilkes had neither searched for dispatches, nor seized dispatches. For in this case Mason, Slidell and Co. in fact constituted the sole objects on the ship Trent that could possibly fall under the category of contraband. Let us, however, disregard this aspect for the moment. Queen Victoria's proclamation designates "officers" of a belligerent party as contraband. Are "officers" merely military officers? Were Mason, Slidell and Co. "officers" of the Confederacy? "Officers," says Samuel Johnson in his dictionary of the English language, are "men employed by the public", that is, in German: Öffentliche Beamte. Walker gives the same definition. (See his dictionary, 1861 edition.)

According to the usage of the English language, therefore, Mason, Slidell and Co., these emissaries, id est, officials of the Confederacy, come under the category of "officers", whom the royal proclamation declares to be contraband. The captain of the Trent knew them in this capacity and therefore rendered himself, his ship and his passengers confiscable. If, according to Phillimore and all other authorities, a ship becomes confiscable as the carrier of an enemy dispatch because it violates neutrality, in a still higher degree is this true of the person who carries the dispatches. According to Wheaton, even an enemy ambassador, so long as he is in transitu, may be intercepted. In general, however, the basis of all international law is that any member of the belligerent party may be regarded and treated as "belligerent" by the opposing party.

"So long as a man," says Vattel, "continues to be a citizen of his own country, he is enemy of all those with whom his nation is at war."

One sees, therefore, that the law officers of the English Crown reduced the point of contention to a mere error in procedure, not an error in re, but an error in forma, because, actually, no material violation of law is to hand. The Palmerston organs chatter about the material legal question again because a mere error in procedure, in the interest of the Trent at that, gives no plausible pretext for a haughty-toned ultimatum.

Meanwhile, important voices have been raised in this sense from diametrically opposite sides: on the one side, Messrs. Bright and Cobden; on the other, David Urquhart. These men are enemies on grounds of principle and personally: the first two, peaceable cosmopolitans; the third, the "last of the Englishmen"; the former always ready to sacrifice all international law to international trade; the other hesitating not a moment: "Fiat Justitia, pereat mundus", and by "justice" he understands "English" justice. The voices of Bright and Cobden are important, because they represent a powerful section of middle-class interests and are represented in the ministry by Gladstone, Milner Gibson and also, more or less, by Sir Cornewall Lewis. The voice of Urquhart is important because international law is his life-study and everyone recognises him as an incorruptible interpreter of this international law.

The usual newspaper sources will communicate Bright's speech in support of the United States and Cobden's letter, which is conceived in the same sense. Therefore I will not dwell on them.

Urquhart's organ, The Free Press, states in its latest issue, published on December 4:

"'We must bombard New York!' Such were the frantic sounds which met the ears of everyone who traversed the streets of London on the evening of this day week, on the arrival of the intelligence of a trifling warlike incident. The act was one which England has committed as a matter of course [in every war] -- namely the seizure on board of a neutral of the persons and property of her enemies."

The Free Press further argues that, in 1856 at the Congress of Paris, Palmerston, without any authority from the Crown or Parliament sacrificed English maritime law in the interest of Russia, and then says:

"In order to justify this sacrifice, Palmerston's organs stated at that time that if we maintained the right of search, we should assuredly be involved in a war with the United States on the occasion of the first war in Europe. And now he calls on us through the same organs of public opinion to bombard New York because the United States act on those laws which are theirs no less than our own."

With regard to the utterances of the "organs of public opinion", The Free Press remarks:

"The bray of Baron Munchausen's thawing posthorn was nothing to the clangour of the British press on the capture of Messrs. Mason and Slidell."

Then humorously, it places side by side, in "strophe" and "antistrophe", the contradictions by which the English press seeks to convict the United States of a "breach of law".