London, December 7
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(1)—the Palmerston press feels that it works among "pleasing hindrances".(2) On the one hand, it admits that the law officers of the Crown(3) 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 compelling 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 question of material right again. The great importance of the case appears to demand a brief examination of the question of material right.
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 Queen Victoria's proclamation of neutrality of May 13, 1861. The passage reads:
"Victoria R. "As we are at peace with the United States ... we warn all our beloved subjects ... to abstain from contravening our Proclamation ... by breaking the legally recognised blockade or by carrying officers ... dispatches ... or any other contraband of war. All persons so offending will be liable to the various penalties imposed in that behalf by the English municipal law and by the law of nations.... Such persons will in no way receive our protection against the consequences of their conduct but will, on the contrary, incur our displeasure."(4)
This proclamation of Queen Victoria, therefore, in the first place declares dispatches to be contraband and makes the ship that carries such contraband liable to the "penalties of the law of 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(5):
"The carrying of dispatches of the enemy subjects the neutral vessel in which they are transported to capture and confiscation. The consequences of such a service are infinitely beyond the effect of conveying ordinary contraband.... As Sir W. Scott, the English judge, says, the carrying of military stores is necessarily of limited nature, while the carrying of dispatches is an act that may defeat the entire plan of campaign of the other belligerent.... The confiscation of the noxious article, which constitutes the usual penalty for contraband, would be ridiculous when applied to dispatches. There would be no freight dependent on their transporta-tion. Therefore, their confiscation does not affect the shipowner and hence does not punish the ship carrying them. 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 English 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,(6) says in his latest work on international law, p. 370:
"Official communications from an official person (7) on the 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 plans of a Belligerent may be forwarded or obstructed.... The penalty is confiscation of the ship which conveys the dispatches and of the cargo.".3
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 interpre-ters, 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 shot-proof 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",(8) 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 Trent captain 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(9)
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 the enemy of all those with whom his nation is at war."(10)
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,(11) but an error in forma,(12) because, actually, no violation of material right is to hand. The Palmerston organs chatter about the question of material right 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",(13) 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.[3] 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 every one 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, in every war, England has committed as a matter of course—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 visitation and 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."(14)
With regard to the utterances of the "organs of public opinion", The Free Press remarks:
"The bray of Baron Munchausen's thawing post-horn was nothing to the clangour of the British press on the capture of Messrs. Mason and Slidell. " (15)
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".
Endnotes
[125] Die Presse published this article with the following editorial introduction: "The Anglo-American quarrel has plunged the European business world, as well as the public at large, into a state of frantic agitation. There is a premonition of the dangers, of the crises and catastrophes, that an armed clash between the world's two biggest commercial and industrial nations, the two nations with the greatest business experience, would bring with it, a feeling bordering on certainty that Britain's power, tied up in a transatlantic conflict, would cease to be a pillar, a guarantee of European peace, that Italy would succumb entirely to the disastrous influence, indeed the sway, of Napoleon's policy, and that the tragic duel between Faust and Valentine, who wields the sword for Mephistopheles, would be resumed, though without the certainty that Valentine would be defeated this time. The whole of Britain is clamouring about the infringement perpetrated by the Americans, and international law, the treaties, are looming large in the English papers just now. But even granted that an infringement did take place, which is by no means an established fact, must it lead to war, as almost the whole of Britain maintains? Is there no possibility of a compromise, no milder method of releasing Messrs Mason, etc., as demanded by Britain? Let us hope that a way out will be found. Even in Britain, the mediation party is already raising its voice; in the United States, the captain of the San Jacinto declares that he was acting entirely on his own responsibility when he arrested the Trent passengers, and as regards the message John Russell sent to Washington, we hear that it is almost begging the Washington Cabinet to display flexibility. Lastly, opinions are divided in the Ministries of London and Washington, and for all the sabre-rattling, we still believe that, unless Palmerston wants war at any price, unless he had already decided on war even before the Trent incident, the chances of a peaceful solution outweigh the danger of war. "The emphasis now placed in Britain on the legal aspect impels the Wiener Zeitung today to draw a conclusion which suggests itself to any reader of the Palmerston papers. 'Is it not like an old fairy-tale,' the Wiener Zeitung says, 'when we hear people in Britain today talking of the binding principles of international law, of existing treaties, of positive Constitutional law, indeed of the word and letter of this or that stipulation which have to be upheld even with the sword? Formal right in its most immediate sense, defined by the nation's leading legal authorities, is being invoked; we can expect a reply formulated in similar terms. All of England is a party in this great lawsuit. It swears by its own good right and is prepared to avenge the infringement of that right, to stake its power and its blood for it; England appeals to the world and to history to back it with their verdict in the battle to uphold that right! With what feelings these enthusiasts of justice must have received the news from Turin that Rome has to be taken because it is essential for maintaining control over the Kingdom of the Two Sicilies, and that Veneria will be invaded as soon as the army has been brought up to 300,000 men!!" "But is it really an established fact that international law, the letter of treaties and formal right are on Britain's side in the Trent affair? Weighty voices contest this view, and from our London correspondent we have received a communication today which exhaustively answers the above question." The article was first published in English in: Karl Marx and Frederick Engels, The Civil War in the United States, New York, 1937, London, 1937, pp. 113-20.
[3] Construction of the Suez Canal was begun in 1859 and completed in 1869. The Fortress of Gae'ta, the last stronghold of Francis II, King of the Two Sicilies (the Kingdom of Naples), was seized by the Piedmont troops on February 12, 1861, as a result of which the Kingdom of the Two Sicilies became part of the united Kingdom of Italy.