« PreviousContinue »
“1. Were the persons nam- “ The second inquiry is, wheMr. Seward's Reply to ed and their supposed dis-tber Captain Wilkes bad
Mr. Seward's Reply to the Demand.
the Demand. patches contraband of war? right, by the law of nations, to “ 2. Might Captain Wilkes lawfully stop and detain and search the Trent. search the Trent for these contraband persons and “ The Trent, though she carried mails, was a con. dispatches?
tract or merchant vessel, a common carrier for bire. “ 3. Did he exercise that right in a lawful and Maritime law knows only three classes of vessels proper manner ?
vessels of war, revenue vessels and merchant veg. “ 4. Having found the contraband persons on sels. The Trent falls within the latter class. Whatboard, and in presumed possession of the contra- ever disputes have existed concerning a right of band dispatches, had he a right to capture the per visitation or search in time of peace, none, it is supsons?
posed, has existed in modern times about the right “5. Did he exercise that right of capture in the of a belligerent, in time of war, to capture contramanner allowed and recognized by the law of na- band in neutral and even friendly merchant vessels, tions ?
and of the right of visitation and search, in order to “ If all these inquiries shall be resolved in the af- determine whether they are neutral and are docufirmative, the British Government will have no mented as such according to the law of nations. I claim for reparation.
assume in the present case what, as I read British “ I address myself to the first inquiry, namely: authorities, is regarded by Great Britain herself as
“ Were the four persons mentioned and their dis- true maritime law-that the circunstances that the patches contraband ?
Trent was proceeding from one neutral port to ano. “Maritime law so generally deals, as its profes-ther neutral port, does not modify the right of the sors say, in rem,, that is, with property, and so sel- belligerent captor. domn with persons, that it seems a straining of the “ The third question is, whether Captain Wilkes term contraband to apply it to them. But persons exercised the right of search in a lawful and proper as well as property may beconie contraband, since manner? If any doubt hung over this point, as the the word means, broadly, 'contrary to proclama- case was presented in the statement of it adopted tion, prohibited, illegal, unlawful. All writers and by the British Government, I think it must have al. judges pronounce naval or military persons iu the ready passed away before the modifications of that service of the enemy, contrabands. Vattel says: statement which I have already submitted. • War allows us to cut off from the enemy all his re- “ I proceed to the fourth inquiry-namely, having sources and to hinder him from sending ministers to found the suspected contraband of war on the Trent, solicit assistance.' And Sir William Scott says: had Captain Wilkes a right to capture the same? *You may stop the ambassador of your enemy on Such a capture is the chief, if not the only recog. his passage. Dispatches are not less clearly con- nized object of the permitted visitation and search. traband, and the bearers or couriers who undertake the principle of the law is that the belligerent exto carry them, fall under the same condemnation.' posed to danger may prevent the contraband per
“A subtelty might be raised whether pretended sons or things from applying themselves, or being ministers of a usurping Power, not recognized as applied to the hostile uses or purposes designed. legal by either the belligerent or the neutral, could The law is so very liberal in this respect, that when be held to be contraband. Bat it would disappear contraband is found on board a neutral vessel, not on being subjected to what is the true test in all only is the contraband forfeited, but the vessel cases-namely: the spirit of the law. Sir William which is the vehicle of its passage or transportation, Scott, speaking of the civil magistrates who were being tainted, also becomes contraband, and is subarrested and detained as contraband, says: “It apjected to capture and confiscation. pears to me on principle to be but reasonable that “ Only the fifth question remains-namely, did when it is of sufficient importance to the enemy that Captain Wilkes exercise the right of capturing the such persons should be sent out on the public ser- contraband in conformity with the law of nations ? vice, at the public expense, it should afford equal | It is just here that the difficulties of the case begin : ground of forfeiture against the vessel that may be What is the manner which the law of nations prelet out for a purpose so intimately connected with scribes for disposing of the contraband when you the hostile operations.'
have found and seized it on board of the neatral “I trust that I have shown that the four persons vessel ? who were then taken from the Trent by Captain “ The answer would be easily found if the question Wilkes, and their dispatches, were contraband of were,
should do with the contraband veg. sel? You must take or send her into a convenient
MR. SE WARD'S REPLY
TO TI E DEMAND.
port and subject her to a judi. | for or against the captured per. Mr. Seward's Reply to
Mr. Seward's Reply to cial prosecution there in admi- sons. But it was assumed that the Demand.
the Demand. ralty, which will try and decide there would result from the de. the questions of belligerency, neutrality, contra- termination of the court concerning the vessel a legal band and capture. So, again, you will promptly certainty concerning the character of the men. This find tho same answer if the question were, what is course of proceeding seemed open to many objecthe manner of proceeding prescribed by the law of tions. It elevates the incidental interior private innations in regard to the contraband, if it be propterest into the proper place of the main paramount erty or things of material or pecuniary value ? public one, and possibly it may make the fortunes,
“But the question here concerns the mode of pro- the safety, or the existence of a nation depend on cedure in regard, not to the vessel that was carry the accidents of a merely personal and pecuniary ing the contraband things which worked the forfeit- litigation. Moreover, when the Judgnient of the ure of the vessel, but to contraband persons. prize-court upon the lawfulness of the capture of
“ The books of law are dumb. Yet the question the vessel is rendered, it really concludes nothing is as important as it is difficult. First, the belliger. and binds neither the belligerent State nor the neuent captor has a right to prevent the contraband tral upon the great question of the disposition to be officer, soldier, sailor, minister, messenger or cou. made of the captured contraband persons. That rier from proceeding in his unlawful voyage, and question is still to be really determined, if at all, by reaching the destined scene of his injurious ser. diplomatic arrangement or by war. One may well vice. But, on the other hand, the person captured express his surprise when told that the law of namay be innocent; that is, he may not be contra- tions has furnished no more reasonable, practical band. He therefore has a right to a fair trial of the and perfect mode than this of determining questions accusation against him. The neutral State that has of such grave import between sovereign powers. taken him under its flag is bound to protect him if The regret we may feel on the occasion is, never. he is not contraband, and is therefore entitled to be theless, modified by the reflection that the difficulty satisfied upon that important question. The faith is not altogether anomalous. Similar and equal of that State is pledged to his safety if innocent, as deficiencies are found every system of municipal its justice is pledged to his surrender if he is really law, especially in the system which exists in the contraband. Here are conflicting claims, involving greater portions of Great Britain and the United personal liberty, life, honor and duty. Here are States. The title to personal property can hardly conflicting national claims, involving welfare, safety, ever be resolved by a court without resorting to the honor and empire. They require a tribunal and a
fiction that the claimant has lost and the possessor trial. The captors and the captured are equals, the
has found it; and the title to real estate is disputed neutral and the belligerent State are equals.
by real litigants under the names of imaginary per. “ While the law authorities were found silent, it sons. It must be confessed, however, that, while was suggested at an early day by this Government, all aggrieved nations demand, and all impartial that you should take the captured persons into a
ones concede, the need of some form of judial proconvenient port, and institute judicial proceedingscess in determining the characters of contraband there to try the controversy. But only courts of persons, no other form than the illogical and cir. admiralty have jurisdiction in maritime cases, and cuitous one thus described exists, nor has any other these courts have formulas to try only claims to yet been suggested. Practically, therefore, the eontraband chattels, but none to try claims con
choice is between that judicial remedy or no judi. cerning contraband persons. The courts can enter-cial remedy whatever. tain no proceedings and render no judgment in favor
“ If there be no judicial remedy, the result is that of or against the alleged contraband men.
the question must be determined by the captor “ It was replied, all this is true ; but you can
himself on the deck of the prize vessel. Very grave reach in those courts a decision which will have the objections arise against such a course. The captor moral weight of a judicial one ; by a circuitous pro- | is armed—the neutral is unarmed. The captor is ceeding convey the suspected men, together with interested, prejudiced, and perhaps violent - the the suspected vessel, into port, and try there the
neutral, if truly neutral, is disinterested, subdued question whether the vessel is contraband. You and helpless. The tribunal is irresponsible, while can prove it to be so by proving the suspected men
its judgment is carried into instant execution. The to be contraband, and the court must then deter
captured party is compelled to submit, though mine the vessel to be contraband.
bound by no legal, moral or treaty obligation to ac“If the men are not contraband, the vessel will quiesce. Reparation is distant and problematical, escape oondemnation. Still there is no judgment and depends at last on the justice, magnanimity or
weakness of the State in whose nations, but as one transacMi Seward's Reply to
Mr. Seward's Reply to behalf, and by whose authority tion-one capture only—then the Demand.
the Demand. the capture was made. Out of it follows that the capture in these disputes reprisals and wars necessarily arise, this case was left unfinished or was abandoned. and these are so frequent and destructive that it whether the United States have a right to retain may well be doubted whether this form of remedy the chief public benefits of it-namely, the custody is not a greater social evil than all that could follow of the captured persons-on proving them to be if the belligerent right of search were universally contraband, will depend upon the preliminary quesrenounced and abolished forever. But carry the tion whether the leaving of the transaction unfocase one step farther : What, if the State that has ished was necessary, or whether it was unnecessary, made the capture unreasonably refuse to hear the
and therefore voluntary. If it was necessary, Great complaint of the neutral, or to redress it? In that Britain, as we suppose, must of course waive the case the very act of capture would be an act of defect, and the consequent failure of the judicial war-of war begun without notice—and possibly remedy. On the other hand, it is not seen how the entirely without provocation.
United States can insist upon her waiver of that “ I think all unprejudiced minds will agree that judicial remedy, if the defect of the capture resulted imperfect as the existing judicial remedy may be from an act of Captain Wilkes, which would be a supposed to be, it would be, as a general practice, fault on their own side. better to follow it than to adopt the summary one “ Captain Wilkes has presented to this Govern. of leaving the decision with the captor, and relying ment his reasons for releasing the Trent. upon diplomatic debates to review his decision. " " I forebore to seize ber,' he says, “in consePractically it is a question of law, with its imper.quence of my being so reduced in officers and crew, fections and delays and war, with its evils and des- and the derangement it would cause innocent perolations.
sons, there being a large number of passengers who "Nor is it ever to be forgotten that neutrality, would have been put to a great loss and inconveni. honestly and justly preserved, is always the harbin. ence as well as disappointment, from the interrupger of peace, and therefore is the common interest tion it would have caused them in not being able to of nations, which is only saying that it is the inter- join the steamer from St. Thomas to Europe. I est of humanity itself.
therefore concluded to sacrifice the interests of my “At the same time it is not to be denied that it officers and crew in the prize, and sufiered her to may sometimes happen that the judicial remedy proceed after the detention necessary to effect the will become impossible--as by the shipwreck of transfer of those commissioners, considering I the prize vessel, or other circumstances which ex- had obtained the important end I had in view, and cuse the captor from serding or taking her into port which affected the interests of our country and interfor confiscation. In such a case, the right of the rupted the action of that of the Confederates.' captor to the custody of the captured persons, and “ I shall consider, first, how these reasons ought to dispose of them, if they are really contraband, so to affect the action of this Government; and, as to defeat their unlawful purposes, cannot reason- secondly, how they ought to be expected to affect ably be denied.
the action of Great Britain. The reasons are satis“What rule shall be applied in such a case? factory to this Government, so far as Captain Wilkes Clearly the captor ought to be required to show that is concerned. It could not desire that the San Ja. the failure of the judicial remedy results from cir-cinto, her officers and crew, should be exposed to cumstances beyond his control and without his fault. danger and loss by weakening their number to deOtherwise he would be allowed to derive advantage tach a prize crew to go on board the Trent. Still from a wrongful act of his own.
less could it disavow the humane motive of prevent“ In the present case Captain Wilkes, after cap-ing inconveniences, losses, and perhaps disasters, toring the contraband persons and making prize of to the several hundred innocent passengers found the Trent, in what seems to us a perfectly lawful on board the prize vessel. manner, instead of sending her into port, released “Nor could this Government perceive any ground her from the capture, and permitted her to proceed. for questioning the fact that these reasons, though with her whole cargo, upon her voyage. He then apparently incongruous, did operate in the mind of effectually prevented the judicial examination which Captain Wilkes, and determined him to release the might otherwise have occurred. If now the capture Trent. Human actions generally proceed upon of the contraband persons, and the capture of the mingled and sometimes conflicting motives. We contraband vessel, are to be regarded, not as two measured the sacrifices which this decision would separable or distinct transactions under the law of cost. It manifestly, however, did not occur to him
8 E WARD'S REPLY TO TIE DEMAND.
that, beyond the sacrifice of the nations by Captain Wilkes of his Mr. Seward's Reply to private interests (as he calls
Mr. Seward's Reply to
reasons for leaving the capture the Demand.
them) of his officers and crew, incomplete to affect the action there might also possibly be a sacrifice even of the of the British Government? The observation upon the chief and public object of his capture-namely, the point which occurs is, that Captain Wilkes' expla. i'ght of his Government to the custody and disposi- nations were not made to the authorities of the caption of the captured persons. This Government tured vessel. If made known to them they might cannot censure him for the oversight. It confesses have approved and taken the release upon the con. that the whole subject came unforeseen upon this dition of waiving a judicial investigation of the Government, as doubtless it did upon him. Its pre- whole transaction, or they might have refused to sent convictions on the point in question are the re- accept the release upon that condition. sult of deliberate examination and deduction now “ But the case is not one with them, but with the made, and not of any impressions previously formed. British Government. If we claim that Great Bri
“ Nevertheless, the question now is not whether tain ought not to insist that a judicial trial has been Captain Wilkes justified to his Government in lost because we voluntarily released the offending what he did, but what is the present view of the vessel, out of consideration for her innocent passenGovernment as to the effect of what he has done. gers, I do not see how she is to be bound to acqui. Assuming now, for argument's sake only, that the esce in the decision which was thus made by us release of the Trent, if voluntary, involved a waiver without necessity on our part and without know. of the claim of the Government to hold the captured ledge of conditions or consent on her own. The quespersons, the United States could, in that case, have tion between Great Britain and ourselves, thus no hesitation in saying that the act which has thus stated, would be a question not of right and of law, already been approved by the Government must be but of favor to be conceded by her to us in return allowed to draw its legal consequence after it, for favors shown by us to her, of the value of which
" It is of the very nature of a gift, or a charity, favors on both sides, we ourselves shall be the judge. that the giver cannot, after the exercise of his be- Of course, the United States could have no thought nevolence is past recall or modify its benefits. of raising such a question in any case.
“We are thus brought directly to the question, “ I trust that I have shown to the satisfaction of whether we are entitled to regard the release of the the British Government, by a very simple and natuTrent as involuntary, or whether we are obliged to ral statement of the facts and analysis of the law apconsider that it was voluntary. Clearly, the release plicable to them, that this Government has neither would have been involuntary had it been made meditated nor practised, nor approved any delibersolely upon the first ground assigned for it by Cap. ate wrong in the transaction to which they have tain Wilkes--namely, a want of a sufficient force to called its attention, and, on the contrary, that what send the prize vessel into port for adjudication. It has happened has been simply an inadvertency, is not the duty of a captor to kazard his own vessel consisting in a departure by the naval officer-free in order to secure a judicial examination to the cap- from any wrongful motive—from a rule uncertainly tured party. No large prize crew, however, is les established, and, probably, by the several parties gally necessary; for it is the daty of the captured concerned, either imperfectly understood or entirely party to acquiesce and go willingly before a tribunal unknown. For this error the British Government to whose jurisdiction it appeals. If the captured has a right to expect the same reparation that we, party indicate purposes to employ means of resist- as an independent State, should expect from Great ance which the captor cannot with probable safety Britain, or from any other friendly nation, in a simi. to himself, overcome, he may properly leave the lar case. vessel to go forward, and neither she nor the State “I have not been unaware that in examining this she represents can ever afterwards justly object question I have fallen into an argument for what that the captor deprived her of the judicial remedy seems to be the British side against my own counto which she was entitled.
try. But I am relieved from all embarrassment on * But the second reason assigned by Captain that subject. I had hardly fallen into that line of Wilkes for releasing the Trent differs from the first. | argument when I discovered that I was really deAt best, therefore, it must be held that Captain fending and maintaining, not an exclusively British Wilkes, as he explains himself, acted from combined | interest, but an old, honored and cherished Amerisentiments of prudence and generosity, and so that can cause, not upon British authorities, but upou the release of the prize vessel was not strictly ne- principles that constitute a large portion of the dis. cessary or involuntary.
tinctive policy by which the United State have de “Secondly-How ought we to expect those expla- | veloped the resources of a continent, and, thus becoming a considerable maritime | tive unimportance of the eap. Ma. Seward's Reply to
Mr. Seward's Reply to power havewon the respect and tured
persons themselves, the Demand.
the Demand. confidence of many nations. when dispassionately weighed, These principles were laid down for us in 1804 by Mr. | happily forbid me from resorting to that defense. Madison, when Secretary of State, in the adminis- “ Nor am I unaware that American citizens are tration of Thomas Jefferson, in instructions given to not in any case to be unnecessarily surrendered for James Monroe, our Minister to England. Although any purpose into the keeping of a foreign State. the case before him concerned a description of per- Only the captured persons, however, or others who sons different from those who are incidentally the are interested in them, could justly raise a question subjects of the present discussion, the ground he as- on that ground. sumed then was the same I now occupy, and the
“Nor have I been tempted at all by suggestions arguments by which he sustained himself upon it that cases might be found in history where Great have been an inspiration to me in preparing this Britain refused to yield to other nations; and even reply.
to ourselves, claims like that which is now before “• Whenever,' he says, 'property found in a neu
us. These cases occurred when Great Britain, as tral vessel is supposed to be liable on any ground to
well as the United States, was the home of genera. capture and condemnation, the rule in all cases is tions which, with all their peculiar interests and that the question shall not be decided by the captor, passions, have passed away. She could in no other but be carried before a legal tribunal, where a reg.
way so effectually disavow any such injury as we ular trial may be had, and where the captor himself
think she does by assuming now as her own the is liable to damages for an abuse of his power. Can ground upon which we then stood. It would tell it be reasonable, then, or just, that a belligerent little for our own claims to the character of a just commander who is thus restricted and thus respon- and magnanimous people if we should so far consent sible in a case of mere property, of trivial amount, to be guided by the law of retaliation as to lift up should be permitted, without recurring to any tri- buried injuries from their grave to oppose against bunal whatever, to examine the crew of a neutral what national consistency and the national cone vessel, to decide the important question of their science compel us to regard as a claim intrinsically respective allegiances, and to carry that decision right. into execution by forcing every individual he may
" Putting behind me all suggestions of this kind, choose into a service abhorrent to his feelings, cut- I prefer to express my satisfaction that, by the ad. ting him off from his most tender connections, expos. justment of the present case, upon principles coning his mind and his person to the most humiliating fessedly American, aud yet, as I trust, mutually discipline, and his life itself to the greatest danger ? satisfactory to both of the nations concerued, a Reason, justice and humanity unite in protesting question is finally and rightly settled between them against so extravagant a proceeding.'
which, heretofore exhausting, not only all forms of * If I declare this case in favor of my own Gov. peaceful discussion, but also the arbitrament of war ernment, I must disavow its most cherished princi- itself, for more than half a century alienated the two ples, and reverse and forever abandon its essential
countries from each other, and perplexed with fears policy. The country cannot afford the sacrifice. Jf and apprehensions all other nations. I maintain these principles and adhere to that poli
“ The four persons in question who are now held in cy, I must surrender the case itself. It will be seen, military custody are at Fort Warren, in the State of therefore, that this Government could not deny the Massachusetts. They will cheerfully be liberated. Your justice of the claim presented to us in this respect lordship will please indicate a time and place for receiving upon its merits. We are asked to do to the British them. nation just what we have always insisted all nations
“ I avail myself of the occasion to offer to your ought to do to us.
lordship a renewed assurance of my very high con. “ The claim of the British Government is not sideration.
WILLIAM H. SEWARD." made in a discourteous manner. This Government,
We should add, to render the record comsince its first organization, has never used more plete, the oorrespondence with the French guarded language in a similar case.
Minister, as indicative of the views and posi. “In coming to my conclusions I have not forgot- tion of Napoleon's Government in the affair. ten that if the safety of this Union required the de- The dispatch of the French Minister of tention of the captured persons it would be the State to M. Mercier read: right and duty of this Government to detain them.
“ADUINISTRATION OF FOREIGN AFFAIRS, But the effectual check and waning proportions of POLITICAL DEPARTMENT, Paris, Dec. 3, 1861. the existing insurrection, as well as the compara- • Sir : The arrest of Messieurs Mason and Slidell,