The Trent Case

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London, November 28, 1861

The conflict of the English mail ship Trent with the North American warship San Jacinto in the narrow passage of the Old Bahama Channel is the lion among the events of the day. In the afternoon of November 27 the mail ship La Plata brought the news of the incident to Southampton, where the electric telegraph at once flashed it to all parts of Great Britain. The same evening the London Stock Exchange was the stage of stormy scenes similar to those at the time of the announcement of the Italian war. Quotations for government stock sank three-quarters to one per cent. The wildest rumours circulated in London. The American Ambassador, Adams, was said to have been given his passport, an embargo to have been imposed on all American ships in the Thames, etc. At the same time a protest meeting of merchants was held at the Stock Exchange in Liverpool, to demand measures from the British Government for the satisfaction of the violated honour of the British flag. Every sound-minded Englishman went to bed with the conviction that he would go to sleep in a state of peace but wake up in a state of war.

Nevertheless, the fact is well-nigh categorically established that the conflict between the Trent and the San Jacinto brings no war in its train. The semi-official press, like The Times and The Morning Post, strikes a peaceful note and pours juridically cool deductions on the flickerings of passion. Papers like the Daily Telegraph, which at the faintest mot d'ordre roar for the British lion, are true models of moderation. Only the Tory opposition press, The Morning Herald and The Standard, hits out. These facts force every expert to conclude that the ministry has already decided not to make a casus belli out of the untoward event.

It must be added that the event, if not the details of its enactment, was anticipated. On October 12, Messrs. Slidell, Confederacy emissary to France, and Mason, Confederacy emissary to England, together with their secretaries Eustis and MacFarland, had run the blockade of Charleston on the steamship Theodora and sailed for Havana, there to seek the opportunity of a passage under the British flag. In England their arrival was expected daily. North American warships had set out from Liverpool to intercept the gentlemen, with their dispatches, on this side of the Atlantic Ocean. The British ministry had already submitted the question whether the North Americans were entitled to take such a step to its official jurisconsults for their opinion. Their answer is said to have been in the affirmative.

The legal question turns in a narrow circle. Since the foundation of the United States, North America has adopted British maritime law in all its rigour. A major principle of this maritime law is that all neutral merchantmen are subject to search by the belligerent parties.

"This right, " said Lord Stowell in a judgment which has become famous, "offers the sole security that no contraband is carried on neutral ships."

The greatest American authority, Kent, states in the same sense:

"The right of self-preservation gives belligerent nations this right. The doctrine of the British admiralty on the right of visitation and search ... has been recognised in its fullest extent by the courts of justice in our country."

It was not opposition to the right of search, as is sometimes erroneously suggested, that brought about the Anglo-American War of 1812 to 1814. Rather, America declared war because England unlawfully presumed to search even American warships, on the pretext of catching deserters from the British Navy.

The San Jacinto, therefore, had the right to search the Trent and to confiscate any contraband stowed aboard her. That dispatches in the possession of Mason, Slidell and Co. come under the category of contraband even The Times, The Morning Post, etc., admit. There remains the question whether Messrs. Mason, Slidell and Co. were themselves contraband and might consequently be confiscated! The point is a ticklish one and differences of opinion prevail among the doctors of law. Pratt, the most distinguished British authority on "Contraband", in the section on "Quasi-Contraband, Dispatches, Passengers" specifically refers to "communication of information and orders from a belligerent government to its officers abroad, or the conveyance of military passengers". Messrs. Mason and Slidell, if not officers, were just as little ambassadors, since their governments are recognised neither by Britain nor by France. What are they, then? In justification of the very broad conceptions of contraband asserted by Britain in the Anglo-French wars, Jefferson already remarks in his memoirs that contraband, by its nature, precludes any exhaustive definition and necessarily leaves great scope for arbitrariness. In any event, however, one sees that from the standpoint of English law the legal question dwindles to a Duns Scotus controversy, the explosive force of which will not go beyond exchange of diplomatic notes.

The political aspect of the North American procedure was estimated quite correctly by The Times in these words:

"Even Mr. Seward himself must know that the voices of the Southern commissioners, sounding from their captivity, are a thousand times more eloquent in London and in Paris than they would have been if they had been heard in St. James's and the Tuileries."

And is not the Confederacy already represented in London by Messrs. Yancey and Mann?

We regard this latest operation of Mr. Seward as a characteristic act of tactlessnesses by self-conscious weakness simulating strength. If the naval incident hastens Seward's removal from the Washington Cabinet, the United States will have no reason to record it as an "untoward event" in the annals of its Civil War.