"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.
The Anglo-American Conflict Karl Marx The Anglo-American Conflict London, November 29, 1861The law officers of the Crown had yesterday to give their opinion on the naval incident in the Bahama Channel. Their records of the case consisted of the written reports of the British officers who have remained on board the Trent and of the oral testimony of Commodore Williams, who was on board the Trent as Admiralty agent, but disembarked from the La Plata on November 27 at Southampton, whence he was immediately summoned by telegraph to London. The law officers of the Crown acknowledged the right of the San Jacinto to visit and search the Trent .
Since Queen Victoria's proclamation of neutrality on the outbreak of the American Civil War expressly lists dispatches among articles of contraband, there could be no doubt on this point either. There remained, then, the question whether Messrs. Mason, Slidell and Co. were themselves contraband and therefore confiscable. The law officers of the Crown appear to hold this view, for they have dropped the material legal question entirely. According to the report of The Times , their opinion blames the commander of the San Jacinto only for an error in procedure .
Instead of Messrs. Mason, Slidell and Co., he should have taken the Trent herself in tow as a prize, brought her to the nearest American port and there submitted her to the judgment of a North American prize court. This is incontestably the procedure corresponding to British and therefore to North American maritime law.
It is equally incontestable that the British frequently violated this rule during the anti-Jacobin war and proceeded in the summary fashion of the San Jacinto . However that may be, the whole conflict is reduced by this opinion of the law officers of the Crown to a technical error and consequently deprived of any immediate import. Two circumstances make it easy for the Union government to accept this point of view and therefore to afford formal satisfaction. In the first place, Captain Wilkes, the commander of the San Jacinto , could have received no direct instructions from Washington. On the voyage home from Africa to New York, he called on November 2 at Havana, which he left again on November 4, whilst his encounter with the Trent took place on the high seas on November 8. Captain Wilkes's stay of only two days in Havana did not permit any exchange of notes between him and his government. The consul of the Union was the only American authority with whom he could deal. In the second place, however, he had obviously lost his head, as his failure to insist on the surrender of the dispatches proves.
The importance of the incident lies in its moral effect on the English people and in the political capital that can easily be made out of it by the British cotton friends of secession. Characteristic of the latter is the Liverpool protest meeting organised by them and previously mentioned by me. The meeting took place on November 27 at three in the afternoon, in the cotton auction-rooms of the Liverpool Exchange, an hour after the alarming telegram from Southampton had arrived.