that with many this kind of reasoning produces disgust, not conviction; and the proposal would be entertained with readier attention if no other nation had done the like.

To conclude, the codification which it seems to me would be necessary to obviate existing evils in the state of our law, consists not merely in reducing to a systematic form the vital statute law, but also in reforming its language, using in the course of this process all the lights to be gathered from the decisions of the courts, the comments of the learned judges, and the recitals of the statutes themselves, so as to embody and express, in exact language, the true intent of the Legislature; adopting, where necessary to the consistency and completeness of the code, the declared rules of the common law, but so as not to exclude those rules where not expressed.

I do not think that we should aim at that exhaustive method which the French Code attempts or has achieved. There should still be left to the courts all those rules of construction, all those applications of common-law principles, all that action according to precedent, by which they are now guided, and to their decisions all the authority they now possess. These are, it appears to me, matters beside this question; principles which would endure with as much vitality after our statutes had been subjected to this process as before.

505

XXVI.-IS THE CAPTURE OF THE SOUTHERN COMMISSIONERS FROM ON BOARD THE MAIL STEAMER "TRENT," DEFENSIBLE BY THE LAW OF NATIONS? BY C. CLARK, Esq.

(Read December 16, 1861.)

IN undertaking to introduce the question, "Is the capture of the Southern Commissioners from on board the mail steamer 'Trent' defensible by the law of nations?" I had no intention to present to this Society the opinions of a partisan, or to endeavour to rouse its feelings and win its applause by the employment of strong language in the assertion, or the defence, of national prejudices. I respect too much the established character of this Society; and, in the absence of still higher motives, that alone would have prevented me from treating the question in any other spirit than that of a jurist. We sit here, not indeed affecting to hold the position of judges, but sincerely desirous to conduct our discussions with judicial fairness. And, in this instance, the consequences of passion or prejudice may be so great, that it is imperatively the duty of every one who affects to lead a discussion on this subject, to avoid these faults. I have tried to keep myself entirely free from their influence; and whatever may be the result of the present differences, I trust that the consideration of the question in this Society may assist in putting upon a right footing a matter interesting to all the nations of the earth, and one, a misconception as to which may compromise the peace of two nations, and the comfort and security of many others.

The question we have to discuss is one upon international law. This very name is modern. I believe it owes its existence to Bentham, although some of the foundations on which it rests existed in ancient times. Selden had used the phrase "Jus inter Gentes" in his Essay on the Dominion of the Sea, and about the middle of the seventeenth century Dr. Zouch published a work "De Jure inter Gentes," a title which he afterwards wove into a longer one, descriptive of the nature and object of another

treatise. The spirit of this expression does not, however, appear to have been adopted into works on this subject, till Bentham employed the expressive translation "international law."

NEUTRALITY IN ANCIENT TIMES.

The respect due to heralds and embassies may be found recorded in the earliest writers, sacred and profane, in prose and in verse. But they were the special representatives of sovereigns or of states at war with each other, or seeking each other's alliance. The condition of a neutral having interests different from either, which interests could hardly be served without occasioning possible offence to one or the other, can scarcely be said to have been then known. Nor can it be wondered at that, in those early days, the rights of neutral nations should have been unknown, since there could hardly happen any war between two powerful states, into which the states immediately around them would not be forced to enter. The eddy of the great whirlpool swept into it all surrounding substances; and, if it did not, passion, or supposed self-interest, drew them into the vortex. But facts change habits, and introduce new doctrines and new practices. Most of the states of the earth at that time, so far as ordinary history makes us acquainted with them, were small; the bare fact of largely increased and infinitely diffused populations existing in the world, has greatly modified the relations of all its various countries with each other. What were once small communities have become great nations, and, instead of two great empires contending, and being alone able to contend, for the mastery of the world, as was once the case, there is no one now able to put forth a claim to universal dominion; while there are several, each of which could powerfully contest such a claim, and, if these should neglect or desert their duty, there are many of smaller extent and less force that, by their union, might render the success of the claim impossible.

RESULTS OF INCREASED POPULATION.

This fact has modified the relations of all states towards each other. The claims of neutrals have necessarily become numerous

and complicated. The smallest states have set up to have rights even against the greatest; and it has become frequently dangerous, and always impolitic, for any of the greatest states to refuse the recognition of those rights. When, therefore, great states have been at war, the interests of these small states have claimed and received acknowledgment. And hence, in a great measure, has arisen that branch of international law which we have now assembled to discuss-the law relating to neutrals in time of war. For, as the earth became more fully peopled, and distant populations arose, requiring supplies which their own lands did not afford them, commerce grew into universal importance; it became a really national interest, and the protection of it assumed every where the character of a national duty and a national necessity. And, independently of this, which is the primary and honourable origin of the law of neutrals, there arose the desire upon certain occasions to secure large and unaccustomed profits, and perhaps, at the same time, to serve the purposes of a favoured power, without directly and justifiably incurring the hostility of his opponent. These matters, real and pretended neutrality, have become seriously, if not almost inextricably, blended; and in the cases to which we shall shortly have occasion to refer, it will be difficult, perhaps impossible, to assign more than a very small number of them to the excusable desire to make a good profit out of accidental circumstances-to obtain a benefit from the quarrels of two states without acting unjustly to either.

It is this which has occasioned much of the labour of the jurist, and which accounts for much of that uncertainty in international law, imperceptible to conscientious jurists, but loudly asserted by interested political partisans to have an actual existence.

PRINCIPLES OF INTERNATIONAL LAW-FAIRNESS

-PROMOTION OF PEACE.

The first great principle of international law is fairness. Whatever violates that principle, however speciously supported, is of questionable validity. The next great principle is the promotion of peace. These principles hardly allow of an

exception; for whatever cases may, at first sight, appear to bear that character, will be, when fully considered, found to be subservient to them.

A SHIP PART OF THE STATE TO WHICH

IT BELONGS.

Peace is, in law-I wish it was in fact-the normal condition of the world. One of the great material blessings of peace is the free intercourse of the various parts of the world, and the free interchange of their commodities. For such a purpose the sea is open to all-it is the property of no one; it is truly described as "the highway of nations." But there must be something of rule in the use of this highway, or the benefits which its use ought to produce to all might be liable to be lost, if not even perverted into mischiefs. As a first rule, each nation claims jurisdiction over its own vessels at sea. This rule is as ancient as navigation itself, though all its applications may not have been early developed. This rule depends on the principle, that every vessel is part of the state to which it belongs. This principle, I am prepared to maintain, and must do so, for it will become of much importance in a future stage of this discussion— and it has been doubted, as it seems to me, on very insufficient reasoning, by some writers on international law. Manning, in his "Commentaries on the Laws of Nations," p. 209, says, that "this position has been relied on by writers who have claimed that the flag of a neutral shall protect the goods of a belligerent." If such was the only purpose for which the doctrine was to be maintained, it would not have my support, but my opposition, since I believe that such an unqualified doctrine would receive an unqualified application, and would thereby only lengthen war, and make it more disastrous. The doctrine that the ship is part of the state to which it belongs, has, however, other consequences not only not objectionable, but absolutely just and praiseworthy. Let us see how Mr. Manning, who has put together the objections of other writers, assails it. He says: "The argument is based on the fact, that a belligerent has no right to capture the property of his enemy when in the territory of a neutral. It is asserted that the ship is part of the territory