Mi Seward's Reply to the Demand. weakness of the State in whose behalf, and by whose authority the capture was made. Out of these disputes reprisals and wars necessarily arise, and these are so frequent and destructive that it may well be doubted whether this form of remedy is not a greater social evil than all that could follow if the belligerent right of search were universally renounced and abolished forever. But carry the case one step farther: What, if the State that has made the capture unreasonably refuse to hear the complaint of the neutral, or to redress it? In that case the very act of capture would be an act of war-of war begun without notice—and possibly entirely without provocation. "I think all unprejudiced minds will agree that imperfect as the existing judicial remedy may be supposed to be, it would be, as a general practice, better to follow it than to adopt the summary one of leaving the decision with the captor, and relying upon diplomatic debates to review his decision. Practically it is a question of law, with its imperfections and delays and war, with its evils and desolations. "Nor is it ever to be forgotten that neutrality, honestly and justly preserved, is always the harbinger of peace, and therefore is the common interest of nations, which is only saying that it is the interest of humanity itself. "At the same time it is not to be denied that it may sometimes happen that the judicial remedy will become impossible-as by the shipwreck of the prize vessel, or other circumstances which excuse the captor from sending or taking her into port for confiscation. In such a case, the right of the captor to the custody of the captured persons, and to dispose of them, if they are really contraband, so as to defeat their unlawful purposes, cannot reasonably be denied. "What rule shall be applied in such a case? Clearly the captor ought to be required to show that the failure of the judicial remedy results from circumstances beyond his control and without his fault. Otherwise he would be allowed to derive advantage from a wrongful act of his own. "In the present case Captain Wilkes, after capturing the contraband persons and making prize of the Trent, in what seems to us a perfectly lawful manner, instead of sending her into port, released her from the capture, and permitted her to proceed. with her whole cargo, upon her voyage. He then effectually prevented the judicial examination which might otherwise have occurred. If now the capture of the contraband persons, and the capture of the contraband vessel, are to be regarded, not as two separable or distinct transactions under the law of Mr. Seward's Reply to the Demand. ` nations, but as one transaction-one capture only-then it follows that the capture in this case was left unfinished or was abandoned. Whether the United States have a right to retain the chief public benefits of it—namely, the custody of the captured persons-on proving them to be contraband, will depend upon the preliminary question whether the leaving of the transaction unfinished was necessary, or whether it was unnecessary, and therefore voluntary. If it was necessary, Great Britain, as we suppose, must of course waive the defect, and the consequent failure of the judicial remedy. On the other hand, it is not seen how the United States can insist upon her waiver of that judicial remedy, if the defect of the capture resulted from an act of Captain Wilkes, which would be a fault on their own side. "Captain Wilkes has presented to this Government his reasons for releasing the Trent. sons, "I forebore to seize her,' he says, 'in conse quence of my being so reduced in officers and crew, and the derangement it would cause innocent perthere being a large number of passengers who would have been put to a great loss and inconvenience as well as disappointment, from the interruption it would have caused them in not being able to join the steamer from St. Thomas to Europe. I therefore concluded to sacrifice the interests of my officers and crew in the prize, and suffered her to proceed after the detention necessary to effect the transfer of those commissioners, considering I had obtained the important end I had in view, and which affected the interests of our country and interrupted the action of that of the Confederates.' "I shall consider, first, how these reasons ought to affect the action of this Government; and, secondly, how they ought to be expected to affect the action of Great Britain. The reasons are satisfactory to this Government, so far as Captain Wilkes is concerned. It could not desire that the San Jacinto, her officers and crew, should be exposed to danger and loss by weakening their number to detach a prize crew to go on board the Trent. Still less could it disavow the humane motive of preventing inconveniences, losses, and perhaps disasters, to the several hundred innocent passengers found on board the prize vessel. Nor could this Government perceive any ground for questioning the fact that these reasons, though apparently incongruous, did operate in the mind of Captain Wilkes, and determined him to release the Trent. Human actions generally proceed upon mingled and sometimes conflicting motives. We measured the sacrifices which this decision would cost. It manifestly, however, did not occur to him Mr. Seward's Reply to the Demand. MR. SEWARD'S REPLY TO THE DEMAND. 407 Mr. Seward's Reply to the Demand. that, beyond the sacrifice of the | nations by Captain Wilkes of his private interests (as he calls reasons for leaving the capture 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 '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 conthat 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 made, and not of any impressions previously formed. "Nevertheless, the question now is not whether Captain Wilkes is justified to his Government in what he did, but what is the present view of the Government as to the effect of what he has done. Assuming now, for argument's sake only, that the release of the Trent, if voluntary, involved a waiver of the claim of the Government to hold the captured persons, the United States could, in that case, have no hesitation in saying that the act which has thus already been approved by the Government must be allowed to draw its legal consequence after it, "It is of the very nature of a gift, or a charity, that the giver cannot, after the exercise of his benevolence is past recall or modify its benefits. "We are thus brought directly to the question, whether we are entitled to regard the release of the Trent as involuntary, or whether we are obliged to consider that it was voluntary. Clearly, the release would have been involuntary had it been made solely upon the first ground assigned for it by Captain Wilkes--namely, a want of a sufficient force to send the prize vessel into port for adjudication. It is not the duty of a captor to hazard his own vessel in order to secure a judicial examination to the captured party. No large prize crew, however, is legally necessary; for it is the duty of the captured party to acquiesce and go willingly before a tribunal to whose jurisdiction it appeals. If the captured party indicate purposes to employ means of resistance which the captor cannot with probable safety to himself, overcome, he may properly leave the vessel to go forward, and neither she nor the State she represents can ever afterwards justly object that the captor deprived her of the judicial remedy to which she was entitled. "But the case is not one with them, but with the British Government. If we claim that Great Britain ought not to insist that a judicial trial has been lost because we voluntarily released the offending vessel, out of consideration for her innocent passengers, I do not see how she is to be bound to acquiesce in the decision which was thus made by us without necessity on our part and without know ledge of conditions or consent on her own. The question between Great Britain and ourselves, thus stated, would be a question not of right and of law, but of favor to be conceded by her to us in return for favors shown by us to her, of the value of which favors on both sides, we ourselves shall be the judge. Of course, the United States could have no thought of raising such a question in any case. "I trust that I have shown to the satisfaction of the British Government, by a very simple and natural statement of the facts and analysis of the law applicable to them, that this Government has neither meditated nor practised, nor approved any deliberate wrong in the transaction to which they have called its attention, and, on the contrary, that what has happened has been simply an inadvertency, consisting in a departure by the naval officer-free from any wrongful motive-from a rule uncertainly established, and, probably, by the several parties concerned, either imperfectly understood or entirely unknown. For this error the British Government has a right to expect the same reparation that we, as an independent State, should expect from Great Britain, or from any other friendly nation, in a similar case. "I have not been unaware that in examining this question I have fallen into an argument for what seems to be the British side against my own country. But I am relieved from all embarrassment on "But the second reason assigned by Captain that subject. I 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 States have de "Secondly-How ought we to expect those expla-veloped the resources of a continent, and, thus be Ma. Seward's Reply to the Demand. Mr. Seward's Reply to the Demand. coming a considerable maritime | tive unimportance of the cappower have won the respect and tured persons themselves, 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. "Nor am I unaware that American citizens are Madison, when Secretary of State, in the administration 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 ason that ground. sumed then was the same I now occupy, and the arguments by which he sustained himself upon it have been an inspiration to me in preparing this reply. 666 "Whenever,' he says, 'property found in a neutral vessel is supposed to be liable on any ground to capture and condemnation, the rule in all cases is that the question shall not be decided by the captor, but be carried before a legal tribunal, where a regular trial may be had, and where the captor himself is liable to damages for an abuse of his power. Can it be reasonable, then, or just, that a belligerent commander who is thus restricted and thus responsible in a case of mere property, of trivial amount, should be permitted, without recurring to any tribunal whatever, to examine the crew of a neutral vessel, to decide the important question of their respective allegiances, and to carry that decision into execution by forcing every individual he may choose into a service abhorrent to his feelings, cutting him off from his most tender connections, exposing his mind and his person to the most humiliating discipline, and his life itself to the greatest danger? Reason, justice and humanity unite in protesting against so extravagant a proceeding.' "If I declare this case in favor of my own Government, I must disavow its most cherished principles, and reverse and forever abandon its essential policy. The country cannot afford the sacrifice. If I maintain these principles and adhere to that policy, I must surrender the case itself. It will be seen, therefore, that this Government could not deny the justice of the claim presented to us in this respect upon its merits. We are asked to do to the British nation just what we have always insisted all nations ought to do to us. us. "Nor have I been tempted at all by suggestions that cases might be found in history where Great Britain refused to yield to other nations; and even to ourselves, claims like that which is now before These cases occurred when Great Britain, as well as the United States, was the home of genera tions which, with all their peculiar interests and passions, have passed away. She could in no other way so effectually disavow any such injury as we think she does by assuming now as her own the ground upon which we then stood. It would tell little for our own claims to the character of a just and magnanimous people if we should so far consent to be guided by the law of retaliation as to lift up buried injuries from their grave to oppose against what national consistency and the national con science compel us to regard as a claim intrinsically right. 64 Putting behind me all suggestions of this kind, I prefer to express my satisfaction that, by the adjustment of the present case, upon principles confessedly American, aud yet, as I trust, mutually satisfactory to both of the nations concerned, a question is finally and rightly settled between them which, heretofore exhausting, not only all forms of peaceful discussion, but also the arbitrament of war itself, for more than half a century alienated the two countries from each other, and perplexed with fears and apprehensions all other nations. "The four persons in question who are now held in military custody are at Fort Warren, in the State of Massachusetts. They will cheerfully be liberated. Your lordship will please indicate a time and place for receiving them. "I avail myself of the occasion to offer to your lordship a renewed assurance of my very high consideration. WILLIAM H. SEWARD." We should add, to render the record com "The claim of the British Government is not made in a discourteous manner. This Government, since its first organization, has never used more plete, the correspondence with the French guarded language in a similar case. In coming to my conclusions I have not forgotten that if the safety of this Union required the detention of the captured persons it would be the right and duty of this Government to detain them. But the effectual check and waning proportions of the existing insurrection, as well as the compara Minister, as indicative of the views and posi- "ADMINISTRATION OF FOREIGN AFFAIRS, FRANCE ON THE SEIZURE OF MASON AND SLIDELL. 409 The French View. The French View "There remains, therefore, to invoke, in explana tions of their capture, only the pretext that they were the bearers of official dispatches from the enemy. But this is the moment to recall a circumstance which governs all this affair, and which ren on board the English packet | that Messrs. Mason and Slidell Trent, by an American cruiser, could not be assimilated to perhas produced In France, if not the same emotion as sons in that category. in England, at least extreme astonishment and sensation. Public sentiment was at once engrossed with the lawfulness and the consequence of suɔh an act, and the impression which has resulted from this has not been for an instant doubtful. "The fact has appeared so much out of accord-ders the conduct of the American cruiser unjustifiaance with the ordinary rules of international law that it has chosen to throw the responsibility for it exclusively on the commander of the San Jacinto. "It is not yet given to us to know whether this supposition is well founded, and the Government of the Emperor has therefore also had to examine the question raised by the taking away of the two passengers from the Trent. The desire to contribute to prevent a conflict, perhaps imminent, between two Powers for which it is animated by sentiments equally friendly, and the duty to uphold, for the purpose of placing the rights of its own flag under shelter from any attack, certain principles essential to the security of neutrals, have, after mature reflection, convinced it that it could not, under the circumstances, remain entirely silent. "If, to our deep regret, the Cabinet of Washington were disposed to approve the conduct of the commander of the San Jacinto, it would be either by considering Messrs. Mason and Slidell as enemies or as seeing in them nothing but rebels. In the one, as in the other case, there would be a forgetfulness extremely annoying of principles upon which we nave always fouud the United States in agreement with us. "By what title, in effect, would the American cruiser, in the first case, have arrested Messrs. Mason and Slidell? The United States have admitted, with us, in the treaties concluded between the two Countries, that the freedom of the flag extends itself over the persons found on board should they be enemies of one of the two parties, unless the question is of military people actually in the service of the enemy. Messrs, Mason and Slidell were, therefore, by virtue of this principle, which we have never found any difficulty in causing to be inserted in our treaties of friendship and commerce, perfectly at liberty under the neutral flag of England. Doubtless it will not be pretended that they could be considered as contraband of war. That which constitutes contraband of war is not yet, it is true, exactly settled; the limitations are not exactly the same for all the Powers; but, in what relates to persons, the special stipulations which are found in the treaties concerning military people define plainly the character of those who only can be seized upon as belligerents; but there is no need to demonstrate ale. The Trent was not destined to a point belonging to one of the belligerents; she was carrying to a neutral country her cargo and her passengers; and, moreover, it was in a neutral port that they were taken. "If it were admissable that, under such conditions, the neutral flag does not completely cover the persons and merchandise it carries, its immunity would be nothing more than idle words. At any moment the commerce and navigation of third Powers would have to suffer from their innocent and even their indirect relations with the one or the other of the belligerents. These last would no longer find themselves as having only the right to exact from the neutral entire partiality, and to interdict all intermeddling on his part in acts of hostility; they would impose on his freedom of commerce and navigation restrictions which modern international law has refused to admit as legitimate, and we should, in a word, fall back upon vexatious practices, against which, in other epochs, no Power has more earnestly protested than the United States. "If the Cabinet of Washington would only look on the two persons arrested as rebels, whom it is always lawful to seize, the question, to place it on other ground, could not be solved, however, in a sense in favor of the commander of the San Jacinto. There would be, in such case, misapprehension of the principle which makes a vessel a portion of the territory of the nation whose flag it bears, and violation of that immunity which prohibits a foreign sovereign, by consequence, from the exercise of his jurisdiction. It certainly is not necessary to recall to mind with what energy, under every circumstance, the Government of the United States has maintained this immunity, and the right of asylum which is the consequence of it. "Not wishing to enter upon a more deep discussion of the questions raised by the capture of Messrs. Mason and Slidell, I have said enough, I think, to settle the point that the Cabinet at Washington could not, without striking a blow at the principles which all neutral nations are alike interested in holding in respect, nor without taking the attitude of contradiction of its own course up to this time, give its approbation to the proceedings of the com mander of the San Jacinto. In this state of things, it evidently should not, according to our views, hes- the British nation, and that he itate about the determination to be taken. "Lord Lyons is already instructed to present the demand for satisfaction, which the English Cabinet is under the necessity of reducing to form, and which consists in the immediate release of the persons taken from on board the Trent, and in sending explanations which may take from this act its offensive character toward the British flag. The Federal Government will be inspired by a just and exalted feeling in deferring to these requests. One would search in vain to what end, for what interest, it would hazard to provoke by a different attitude a rupture with Great Britain. The French view. "For ourselves, we should see in that fact a deplorable complication, in every respect, of the difficulties with which the Cabinet at Washington has already to struggle, and a precedeut of a nature seriously to disquiet all the powers which continue outside of the existing contest. We believe that we give evidence of loyal friendship for the Cabinet of Washington by not permitting it to remain in ignorance, in this condition of things, of our manner of regarding it. I request you, therefore, sir, to seize the first occasion of opening yourself frankly to Mr. Seward, and, if he asks it, send bim a copy of this dispatch. Seward's Answer. is equally just in assuming that "When the French Government shall come to see at large the views of this Government and those of the Government of Great Britain on the subject now in question, and to compare them with the views expressed by M. Thouvenel on the part of France, it will probably perceive that, while it must be admitted that those three powers are equally impressed with the same desire for the establishment of principles favorable to neutral rights, there is, at the same time, not such an entire agreement concerning the application of those principles as is desirable to secure that important object. "The Government of the United States will be happy if the occasion which has elicited this corre spondence can be improved so as to secure a more definite agreement upon the whole subject all by maritime powers. "You will assure M. Thouvenel that this Government appreciates as well the frankness of his explanations as the spirit of friendship and good will towards the United States, in which they are "Receive sir, the assurances of my high consider- expressed. ation. THOUVENEL. "It is a sincere pleasure for the United States to "Monsieur HENRI MERCIER, Minister of the Empe- exchange assurances of a friendship which had its ror at Washington." origin in associations the most sacred in the history of both countries. Mr. Seward's reply was in excellent tone, seizing that opportunity as the good occasion whereby to make a forcible and pertinent request: "DEPARTMENT OF STATE, "WASHINGTON, Dec. 27th, 1861. "M. HENRI MERCIER, &c., &c. : Seward's Answer. "Sir: I have submitted to the President the copy you were so good as to give me of the dispatch addressed to you on the 3d of December instant, concerning the recent proceedings of Captain Wilkes in arresting certain persons on board of the British con tract mail steamer Trent. "Before receiving the paper, however, the President had decided upon the disposition to be made of the subject, which has caused so much anxiety in Europe. That disposition of the subject, as I think, renders unnecessary any discussion of it in reply to the comments of M. Thouvenel. I am permitted, however, to say that M. Thouvenel has not been in error in supposing-first, that the Government of the United States has not acted in any spirit of disregard of the rights or of the sensibilities of "I avail myself of this opportunity to renew to you, sir, the assurance of my high consideration. "WILLIAM H. SEWARD." Lord Lyons did not await the remission to his Government of Mr. Seward's reply in order to accept the terms conceded. The Confederate ambassadors were released Jan. 1st, passing out of the fort in a quiet manner to a tugboat in waiting. The tug conveyed them to Provincetown, where they were transferred to the British war steamer Rinaldo, which sailed, the same evening, for England. Thus ended an affair that gave promise of one The Good Result. of the most serious wars of modern times. That this country came out of the difficulty with honor, even its enemies confessed. The settlement was a staggering blow to those friends of the Southern Confederacy abroad who saw, in the impending collision, the surest way to Southern independence. It signally defeated the combinations and ma |