Let us now approach more closely the question of right. It was well in the first place to rid ourselves of secondary questions which hinder us from seeing it, and above all from seeing it as it is.
They seem to have been afraid in England to look this question of right boldly in the face. There is no subterfuge that they have not tried in order to avoid its serious investigation.
Have they not gone so far as to object to the United States that, considering the Southern States as rebellious and refusing them the quality of belligerents, they could not exercise the right of search, which is reserved to belligerents? From this point of view they add, Messrs. Mason and Slidell would simply be rebels taking refuge under the English flag; and what country would consent to give up political refugees? The answer is simple: no country more than England has recognized, in this instance, the quality of belligerents which her partisans are seeking to contest in her name. Moreover, the Southern blockade is admitted by her and by the other powers; now, blockade is as impossible as right of search apart from a state of war.
Another subterfuge: the United States have always opposed the right of search—it ill becomes them to exercise it. England has always exercised the right of search; it ill becomes her to oppose it. Let us be honest; rights of this kind are always odious to those who submit to them and always dear to those who profit by them. Alas! this is not the only instance in which, a change in our position works a change in our mode of viewing things. Let us take the human heart as it is, and not demand under penalty of war, that the Americans, in the midst of one of the most terrible social crises (and also of the most glorious) of which history makes mention, should hesitate to seize a weapon which was formerly used against them and which they feel the need of using in return. In neglecting to seize it, they would fail perhaps in their duty to themselves and to the noble cause of which they are the representatives.
There is finally a last and more simple manner of avoiding an embarrassing examination: "What is the use of examining precedents?" we hear on every side, "This is not a matter for legal advisers." It appears to me, however, that it is something of the kind, since Great Britain has begun by interrogating the lawyers of the Crown, and since she has made peace or war depend on the decision which they might render. It would be too convenient, truly, to take exception to precedents made by one's self, and to say to those who act as he has not ceased to do: "I permit no one to imitate me; what I practised in times past, I authorize no one to practise to-day. I have not apprised you of this, but you ought to have divined it, and for not having divined it, you shall have war."
Precedents keep then their full value. What are they?
The enemies of America have cited one which has nothing to do here; the letter written by King Louis Philippe to Queen Victoria to express his regret that a pilot under the protection of the British flag had been carried away by the expedition bound to Mexico. A very different thing is an abduction of this kind, having nothing in common with the right of search or the maintenance of neutrality, and the capture of the Southern Commissioners.
It is in the familiar history of the right of search that precedents must he sought, and they abound there.
In quoting some of them, I impose on myself a double law: first, I will not confound acts of violence with precedents, and from the abuse which the English made in times past of their maritime preponderance, I will not conclude that every one is at liberty to do to-day as they have done; secondly, among the grave and weighty authors who have made a special study of these questions in the quiet of their retirement, I will confine myself to consulting none but English authorities. Doubtless, they will not think of challenging these in England.
Chancellor Kent writes: "If, on making the search, it be discovered that the vessel is employed hi contraband trade, that it transports the enemy's property, troops, or despatches, it may be rightfully seized and carried for adjudication before a prize court."