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public-for the principle it lives by and keeps alive-for man's vast future-thanks to all.

Peace does not appear so distant as it did. I hope it will come soon and come to stay; and so come as to be worth the keeping in all future time. It will then have been proved that among freemen there can be no successful appeal from the ballot to the bullet, and that they who take such appeal are sure to lose their case and pay the cost. And there will be some black men who can remember that with silent tongue, and clinched teeth, and steady eye, and well-poised bayonet, they have helped mankind on to this great consummation, while I fear there will be some white ones unable to forget that with malignant heart and deceitful speech they have striven to hinder it.

Still, let us not be over-sanguine of a speedy, final triumph. Let us be quite sober. Let us diligently apply the means, never doubting that a just God, in his own good time, will give us the rightful result. Yours, very truly,




EXECUTIVE MANSION, WASHINGTON, January 16, 1864. GENTLEMEN: The number for this month and year of the North American Review was duly received, and for which please accept my thanks. Of course, I am not the most Impartial judge, yet, with due allowance for this, I venture to hope that the article entitled "The President's Policy," will be of value to the country. I fear I am not quite worthy of all which is therein kindly said of me personally. The sentence of twelve lines, commencing at the top of page 252, I could wish to be not exactly as it is. In what is there expressed the writer has not correctly understood me. I have never had a theory that secession could absolve States or people from their obligations. Precisely the contrary is asserted in the inaugural address; and it was because of my belief in the continuation of these obligations that I was puzzled, for a time, as to denying the legal rights of those citizens who remained individually innocent of

treason or rebellion. But I mean no more now than to merely call attention to this point.

Yours respectfully,


The sentence in the January number, refered to by Mr. Lincoln, is as follows:


I could not take the office without taking the oath. was it my view that I might take an oath to get power, and break the oath in using the power. I understood, too, that in ordinary and civil administration this oath even forbade me to practically indulg my primary abstract juogment on the moral question of slavery. I had publicly declared this many times, and in many ways. And I aver that, to this day, I have done no official act in mere deference to my ab struct judgment and feeling on slavery I did understand, however, that my oath to preserve the Constitution to the best of my ability, imposed upon me the duty of preserv ing, by every indispensable means, that Government-that nation, of which that Constitution was the organic law. Was it possible to lose the nation and yet preserve the Contution? By general law, life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the Constitution, through the preservation of the nation. Right or wrong, I as umed this ground, and now avow it. I could not feel that, to the best of my ability I had even tried to preserve the Constitution, if, to save slavery, or any minor matter, I should permit the wreck of Government, country, and Constitution, altogether. When early in the war, Gen. eral Fremont attempted military emancipation, I forbade it, because I did not then think it an indispensable necessity. When a little later, General Cameron, then Secretary of War, suggested the arming of the blacks, I objected, be cause I did not yet think it an indispensable necessity. When, still later, General Hunter attempted military eman cipation. I again forbade it, because I did not yet think the indispensable necessity had come. When in March and May, and July, 1862, I made earnest and successive appeals to the border States to favor compensated emancipation, I believed the indispensable necessity for military emancipa tion and arming the blacks would come, unless averted by that measure. They declined the proposition, and I was, in my best judgment, driven to the alternative of either surrendering the Union, and with it, the Constitution, or of laying strong hand upon the colored element. I chose the latter. In choosing it, I hoped for greater gain than loss, but of this I was not entirely confident. More than a year of trial now shows no loss by it in our foreign relations, none in our home popular sentiment, none in our white military force, no loss by it any how, or anywhere. On the contrary, it shows a gain of quite a hundred and thirty thousand sol diers, seamen, and laborers. These are palpable facts, about which, as facts, there can be no cavilling. We have the and we could not have had them without the meas"And now let any Union man who complains of this measure, test himself by writing down in one line, that he is for subduing the rebellion by force of arms; and in the next, that he is for taking three hundred and thirty theusand men from the Union side, and placing them where they would be best for the measure he condemns. If he cannot face his case so stated, it is only because he cannot face the truth."

Even so long ago as when Mr. Lincoln, not yet convinced of the danger and magnitude of the crisis, was endeavoringen; to persuade himself of Union majorities at the South, and to carry on a war that was half peace in hope of a peace that would have been all war, while he was still enforcing the fugitive slave law, under some theory that secession, how ever it might absolve States from their obligations, could not escheat them of their claims under the Constitution, and that slaveholders in rebellion had alone, among mortals, the privilege of having their cake and eating it at the same time-the enemies of free government were striving to persuade the people that the war was an abolition cruBade. To rebel without reason was proclaimed as one of the rights of man, while it was carefully kept out of sight that to suppress rebellion is the first duty of the Govern


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To this the editors of the Review append a note, as follows:

Nothing could have been further from the intention of the editors than to misrepresent the opinions of the President. They merely meant that, in their judgment, the policy of the administration was at first such as practically to concede to any rebel who might choose to profess loyalty, rights under the Constitution whose corresponding obligations he repudiated.



I add a word which was not in the verbal conversation. In telling this tale, I attempt no compliment to my own sagacity. I claim not to have controlled events, but confess plainly that events have controlled me. Now at the end of three years' struggle, the nation's condition is not what either party, or any man devised, or expected. God alone can claim it. Whither it is tending seems plain. If God now wills the removal of a great wrong, and wills also that we of the North, as well as you of the South, shall pay fairly for our complicity in that wrong, impartial history will find therein new causes to attest and revere the justice and goodness of God. Yours, truly, A. LINCOLN.



Hon. F. A. CONKLING, and others:

GENTLEMEN: Your letter, inviting me to be present at a mass meeting of loyal citizens to be held at New York, on the 4th inst., for the purpose of expressing gratitude to Lieutenant General Grant for his signal services, was repres-ceived yesterday. It is impossible for me to attend. I ap prove, nevertheless, whatever may tend to strengthen and sustain General Grant and the noble armies now under his direction.

A. G. HODGES, Esq., Frankfort, Ky: MY DEAR SIR: You ask me to put in writing the substance of what I verbally said the other day, in your ence, to Governor Bramlette and Senator Dixon. It was about as follows:

"I am naturally anti-slavery. If slavery is not wrong, nothing is wrong. I cannot remember when I did not so think and feel, and yet I have never understood that the Presidency conferred upon me an unrestricted right to act officially upon this judgment and feeling. It was in the oath I took that I would to the best of my ability preserve, protect, and defend the Constitution of the United States.

My previous high estimate of General Grant has been maintained and heightened by what has occurred in the remarkable campaign he is now conducting. While the magnitude and difficulty of the task before him do not prove less than I expected, he and his brave soldiers ar now in the midst of their great trial, and I trust at your

meeting you will so shape your good words that they may turn to men and guns, moving to his and their support. Yours, truly, A. LINCOLN.


for me to say something.

I suppose that this toast was intended to open the way War, at the best, is terrible, and this war of ours, in its magnitude and in its duration, is one of the most terrible. It has deranged business, totally in many localities, and partially in all localities. It has destroyed property and ruined homes; it has produced a national debt and taxation precedented, at least in this country; it has carried mourning to almost every home, until it can almost be said that the "heavens aro hùng in black."

Yet the war continues, and several relieving coincidents have accompanied it from the very beginning which have not been known, as I understand, or have any knowledge of, in any former wars in the history of the world. The Sanitary Commission, with all its benevolent labors; the Christian Commission, with all its Christian and benevolent labors; and the various places, arrangements, so to speak, and institutions, have contributed to the comfort and relief of the soldiers. You have two of these places in this city the Cooper Shop and Union Volunteer Refreshment Saloons. And, lastly, these Fairs, which, I believe, began only in last August, if I mistake not, in Chicago, then at Boston, at Cincinnati, Brooklyn, New York, at Baltimore, and those at present held at St. Louis, Pittsburgh, and Philadelphia. The motive and object that lie at the bottom of all these are most worthy; for, say what you will, after all, the most is due to the soldier, who takes his life in his hands and goes to fight the battles of his country. In what is contributed to his comfort when he passes to and fro, and in what is contributed to him when he is sick and wounded, in whatever shape it comes, whether from the fair and tender hand of woman, or from any other source, it is much, very much. But I think that there is still that which is of as much value to him in the continual reminders he sees in the newspapers that while he is absent he is yet remembered by the loved ones at home. Another view of these various institutions, if I may so call them, is worthy of consideration, I think. They are voluntary contributions, given zealously and earnestly, on top of all the disturbances of business, of all the disorders, of all the

| taxation, and of all the burdens that the war has imposed upon us, giving proof that the national resources are not at all exhausted, and that the national spirit of patriotism is even firmer and stronger than at the commencement of the


It is a pertinent question, often asked in the mind privately, and from one to the other, when is the war to end? other can, but I do not wish to name a day, a month, or a Surely I feel as deep an interest in this question as any year when it is to end. I do not wish to run any risk of seeing the time come, without our being ready for the end, for fear of disappointment, because the time had come and not the end. We accepted this war for an object, a worthy object, and the war will end when that object is attained. Under God, I hope it never will end until that time. Speaking of the present campaign, General Grant is reported to have said, I am going through on this line if it takes all summer. This war has taken three years; it was begun or accepted upon the line of restoring the national authority over the whole national domain, and for the American people, as far as my knowledge enables me to speak, I say we are going through on this line if it takes three years more. My friends, I did not know but that I might be called upon to say a few words before I got away from here, but I did not know it was coming just here. I have never been in the habit of making predictions in regard to the war, but I am almost tempted to make one. If I were to hazard it, it is this: That Grant is this evening, with General Meade and General Hancock, and the brave officers and soldiers with him, in a position from whence he will never be dislodged until Richmond is taken, and I have but one single proposition to put now, and, perhaps, I can best put it in the form of an interrogative. If I shall discover that General Grant and the noble officers and men under him can be greatly facilitated in their work by a sudden pouring for ward of men and assistance, will you give them to me? Are you ready to march? [Cries of "yes."] Then, I say, stand ready, for I am watching for the chance. I thank you, gentlemen. [Laughter and cheers.]

This speech was repeatedly interrupted by applause, and at its close three cheers were given for the army of the Potomac, and successive cheers for Grant and Meade and Hancock, and their brave soldiers. In the mean time the President retired from the room.




The Trent Affair.

mand was made that the commander of the Trent should

proceed on board the San Jacinto, but he said he would not SECRETARY SEWARD TO MR. ADAMS.

go unless forcibly compelled likewise, and this demand was

not insisted upon. NOVEMBER 30, 1861.

It thus appears that certain individuals have been forcibly Since that conversation was held Captain taken from on board a British vessel, the ship of a neutral Wilkes, in the steamer San Jacinto, has boarded a British Power, while such vessel was pursuing a lawful and innocent colonial steamer and taken from her deck two insurgents voyage-an act of violence which was an affront to the who were proceeding to Europe on an errand of treason British flag and a violation of international law. against their own country. This is a new incident, un- Her Majesty's Government, bearing in mind the friendly known to and unforeseen, at least in its circumstances, by relations which have long subsisted between Great Britain Lord Palmerston. It is to be met and disposed of by the and the United States, are willing to believe that the United two Governments, if possible, in the spirit to which I have States naval officer who committed the aggression was not adverted. Lord Lyons has prudently refrained from open-acting in compliance with any authority from his Govern ing the subject to me, as, I presume, waiting instructions ment, or that if he conceived himself to boso authorized he from home. We have done nothing on the subject to anti- greatly misunderstood the instructions which ho had recipate the discussion, and we have not furnished you with ceived. For the Government of the United States must be any explanations. We adhere to that course now, because fully aware that the British Government could not allow we think it more prudent that the ground taken by the such an affront to the national honor to pass without full British Government should be first made known to us here, reparation, and her Majesty's Government arr unwilling to and that the discussion, if there must be one, shall be had believe that it could be the deliberats intention of the Gore here. It is proper, however, that you should know one ernment of the United States unnecessarily to force into fact in the case, without indicating that we attach much discussion between the two Governments a question of 2 importance to it, namely, that, in the capture of Messrs. grave a character, and with regard to which the whole Mason and Slidell on board a British vessel, Captain Wilkes British nation would be sure to entertain such unanimity of having acted without any instructions from the Government, feeling. the subject is therefore free from the embarrassment which Her Majesty's Government, therefore, trust that when might have resulted if the act had been specially directed this matter shall have boen brought under the consideration by us.

of the Government of the United States that Government I trust that the British Government will consider the will, of its own accord, offer to the British Government ench subject in a friendly temper, and it may expect the best dis rodress as alone could satisfy the British nation, namely, position on the part of this Government

the liberation of the four gentlemen and thei: delirrry to EARL RUSSELL TO LORD LYONS.

your lordship, in order that they may again be placed under

British protection, and a suitable apology for the aggression NOVEMBER 30, 1861.

which has been committed. MY LORD: Intelligence of a very grave nature has reached

Should these terms not be offered by Mr. Seward, you will her Majesty's Government.

propose them to him. This intelligence was conveyed officially to the knowledge

You are at liberty to read this dispatch to the Secretary of the Admiralty by Commander Williams, agent for mails of State, and, if he shall desire it, you will give him a copy on board the contract steamer Trent.

of it. It appears from the letter of Commander Williams, dated SECRETARY SEWARD TO LORD LYONS. " Royal Mail Contract Packet Trent, at sea, November 9," that the Trent left Havana on the 7th instant, with her

DECEMBER 26, 1861. Majesty's mails for England, having on board numerous MY LORD: Earl Russell's despatch of November the 30th passengers. Commander Williams states that shortly after a copy of which you have left with me at my request, is of noon, on the 8th, a steamer having the appearance of a the following effect, namely: man-of-war, but not showing colors, was observed ahead. That a letter of Commander Williams, dated Royal Mail On nearing her, at 1.15 p. m., she fired a round shot from Contract Packetboat Trent, at sea, November 9th, states her pivot-gun across the bows of the Trent and showed that that vessel left Havana on the 7th of November, with American colors. While the Trent was approaching her her Majesty's mails for England, having on board numerous slowly, the American vessel discharged a shell across the passengers. Sbortly after noon, on the 8th of Novenler, bows of the Trent, exploding half a cable's length ahead of the United States war steamer San Jacinto, Capt. Wilkes her. The Trent then stopped, and an officer with a large not showing colors, was observed ahead. Thnt steamer, on armed guard of marines boarded her. The officer demanded being neared by the Trent, at one o'clock fifteen minutes in a list of the passengers; and, compliance with this demand the afternoon, fired a round shot from a pivot-on across being refused, the officer said he had orders to arrest Messrs. her bows, and showed American colors. While the Trent Mason, Slidell, McFarland, and Eustis, and that he had sure was approaching slowly towards the San Jacinto, she die information of their being passengers in the Trent. While charged a shell across the Trent's bows, which exploded a some parley was going on upon this matter, Mr. Slidell half a cable's length before her. The Trent then stopper stepped forward and told the American officer that the four and an officer with a large armed guard of marines boarded persons he had named were then standing before him. The her. The officer said he had orders to arrest Messrs. Mason commander of the Trent and Commander Williams protested Slidell, McFarland, and Eustis, and had sure information against the act of taking by force out of the Trent these that they were passengers in the Trent. While some parley four passengers, then under the protection of the British was going on upon this matter, Mr. Slidell stepped forward flag. But the San Jacinto was at that time only two hun- and said to the American officer that the four persons he dred yards from the Trent, her ship's company at quarters, had named were standing before him. The commander of her ports open, and tompions out." Resistance was there the Trent and Commander Williams protested against the fore out of the question, and the four gentlemen before act of taking those four passengers out of the Trent, they Damed were forcibly taken ou: of th:e ship. A further do thon being under the protection of the British flag. But

the San Jacinto was at this time only two hundred yards distant, her ship's company at quarters, her ports open and tompions out, and so resistance was out of the question. The four persons before named wore thon forcibly taken out of the ship. A further demand was made that the commander of the Trent should proceed on board the San Jacinto, but he said he would not go unless forcibly compelled likewise, and this demand was not insisted upon. Upon this statement Earl Russell remarks that it thus appears that certain individuals have been forcibly taken from on board a British vessel, the ship of a neutral power, while that vessel was pursuing a lawful and innocent voyage-an act of violence which was an affront to the British flag and a violation of international law.

Earl Russell next says that her Majesty's Government, bearing in mind the friendly relations which have long subsisted between Great Britian and the United States, are willing to believe that the naval officer who committed this aggression was not acting in compliance with any authority from his Government, or that, if he conceived himself to be so authorized, he greatly misunderstood the instructions

which he had received.

was engaged in suppressing by the employment of land and naval forces; that in regard to this domestic strife the United States considered Great Britain as a friendly power, while she had assumed for herself the attitude of a neu tral; and that Spain was considered in the same light, and had assumed the same attitude as Great Britain.

It had been settled by correspondence that the United States and Great Britain mutually recognized as applicable to this local strife these two articls of the declaration made by the Congress of Paris in 1856, namely, that the neutral or friendly flag should cover enemy's goods not contraband of war, and that neutral goods not contraband of war are not liable to capture under an enemy's flag. These exceptions of contraband from favor were a negative acceptance by the parties of the rule hitherto every where recognized as a part of the law of nations, that whatever is contraband is liable to capture and confiscation in all


James M. Mason and E. J. McFarland are citizens of the United States and residents of Virginia. John Slidell and George Eustis are citizens of the United States and rest

dents of Louisiana. It was well known at Havana when

these parties embarked in the Trent that James M. Mason was proceeding to England in the affected character of a pretended commission from Jefferson Davis, who had assumed to be president of the insurrectionary party in the United States, and E. J. McFarland was going with him in a like unreal character of secretary of legation to the pretended mission. John Slidell, in similar circumstances, was going to Paris as a pretended minister to the Emperor of the French, and George Eustis was the chosen secretary of legation for that simulated mission. The fact that these persons had assumed such characters has been since avowed by the same Jefferson Davis in a pretended message to an unlawful and insurrectionary Congress. It was, we think, rightly presut-sumed that these ministers bore pretended credentials and instructions, and such papers are in the law known as despatches. We are informed by our consul at Paris that these despatches, having escaped the search of the Trent, were actually conveyed and delivered to emissaries of the insur rection in England. Although it is not essential, yet it is proper to state, as I do also upon information and belief, that the owner and agent, and all the officers of the Trent, including Commander Williams, had knowledge of the assumed characters and purposes of the persons before named when they embarked on that vessel.

Earl Russell argues that the United States must be fully aware that the British Government could not allow such an affront to the national honor to pass without full repara-minister plenipotentiary to the Court of St. James, under a tion, and they are willing to believe that it could not be the deliberate intention of the Government of the United States unnecessarily to force into discussion between the two Governments a question of so grave a character, and with regard to which the whole British nation would be sure to entertain such unanimity of feeling.

Earl Russell, resting upon the statement and the argument which I have thus recited, closes with saying that her Majesty's government trust that when this matter shall have been brought under the consideration of the Government of the United States, it will, of its own accord, off r to the British Government such redress as alone could isfy the British nation, namely, the liberation of the four prisoners taken from the Trent, and their delivery to your lordship, in order that they may again be placed under British protection, and a suitable apology for the aggression which has been committed. Earl Russell finally instructs you to propose those terms to me, if I should not first offer them on the part of the Government.

This despatch has been submitted to the President. The British government has rightly conjectured, what it is now my duty to state, that Captain Wilkes, in conceiving and executing the proceeding in question, acted upon his own suggestions of duty, without any direction or instruction, or even foreknowledge of it, on the part of this Government. No directions had been given to him, or any other naval officer, to arrest the four persons named, or any of them, on the Trent or any other British vessel, or on any other neutral vessel, at the place where it occurred or elsewhere. The British government will justly infer from these facts that the United States not only have had no purpose, but even no thought, of forcing into discussion the question which has arisen, or any other which could affect in any way the sensibilities of the British nation. It is true that a round shot was fired by the San Jacinto from her pivot-gun when the Trent was distantly approaching. But, as the facts have been reported to this government, the shot was nevertheless intentionally fired in a direction so obviously divergent from the course of the Trent as to be quite as harmless as a blank shot, while it should be regarded as a signal.

So also we learn that the Trent was not approaching the San Jacinto slowly when the shell was fired across her bows, but, on the contrary, the Trent was, or seemed to be, moving under a full head of steam, as if with a purpose to pass the San Jacinto.

We are informed also that the boarding officer, (Lieutenant Fairfax,) did not board the Trent with a large armed guard, but he left his marines in his boat when he entered Le Trent. He stated his instructions from Captain Wilkes to search for the four persons named, in a respectful and courteous, though decided manner, and he asked the captain of the Trent to show his passenger list, which was refused. The lieutenant, as we are informed, did not employ absolute force in transferring the passengers, but he used just so much as was necessary to satisfy the parties concerned that refusal or resistance would be unavailing.

So, also, we are informed that the captain of the Trent was not at any time or in any way required to go on board the San Jacinto.

Your lordship will now perceive that the case before us, instead of presenting a merely flagrant act of violence on the part of Captain Wilkes, as might well be inferred from the incomplete statement of it that went up to the British government, was undertaken as a simple egan? tomary belligerent proceeding by Captain Was arrest and capture a neutral vessel engaged in carrying contra band of war for the use and benefit of the insurgents.

The question before us is, whether this proceeding was authorized by and conducted according to the law of nations. It involves the following inquiries:

1st. Were the persons named and their supposed despatches contraband of war?

24. Might Captain Wilkes lawfully stop and search the Trent for these contraband persons and despatches? 3d. Did he exercise that right in a lawful and proper manner?

4th. Having found the contraband persons on board and in presumed possession of the contraband dispatches, had he a right to capture the persons?

5th. Did he exercise that right of capture in the manner allowed and recognized by the laws of nations?

If all these inquires shall be resolved in the affirmative the British government will have no claim for reparation. I address myself to the first inquiry, namely, were the four persons mentioned, and their supposed despatches, coutraband?

Maritime law so generally deals, as its professors say, in rem, that is with property, and so seldom with persons, that it seems a straining of the term contraband to apply it to them. But persons, as well as property, may become contraband, since the word means broadly "contrary to proclamation, prohibited, illegal, unlawful.”

All writers and judges pronounce naval or military persons in the service of the enemy contraband. Vattel says war allows us to cut off from an enemy all his resources, and to hinder him from sending ministers to solicit assistance. And Sir William Scott says you may stop the ambas

These modifications of the case, as presented by Com-sador of your enemy on his passage. Despatches are not mander Williams, are based upon our official reports.

I have now to remind your lordship of some facts which doubticssly were omitted by Earl Russell, with the very proper and becoming motive of allowing them to be brought into the case, on the part of the United States, in the way most satisfactory to this Government. These facts are, that at the time the transaction occurred an insurrection was existing in the United States which this Government

less clearly contraband, and the bearers or couriers who undertake to carry them fall under the same condemnation.

A subtlety might be raised whether pretended ministers of a usurping power, not recognized as legal by either the belligerent or the neutral, could be held to be contraband. But it would disappear on being subjected to what is the true test in all cases-namely, the spirit of the law. Sir

William Scott, speaking of civil magistrates who are arrested and detained as contraband, says:

only courts of admiralty have jurisdiction in maritime cases, and these courts have formulas to try only claims to "It appears to me on principle to be but reasonable that contraband chattels, but none to try claims concerning when it is of sufficient importance to the enemy that such contraband persous. The courts can entertain no proceedpersons shall be sent out on the public service at the pub-ings and render no judgment in favor of or against the allic expense, it should afford equal ground of forfeiture leged contraband men. against the vessel that may be let out for a purpose so intimately connected with the hostile operations."

I trust that I have shown that the four persons who were taken from the Trent by Captain Wilkes, and their des patches, were contraband of war.

The second inquiry is, whether Captain Wilkes had a right by the law of nations to detain and search the Trent. The Trent, though she carried mails, was a contract or merchant vessel-a common carrier for hire. Maritime law knows only three classes of vessels-vessels of war, revenue vessels, and merchant vessels. The Trent falls within the latter class. Whatever disputes have existed concerning & right of visitation or search in time of peace, none, it is supposed, has existed in modern times about the right of a belligerent in time of war to capture contraband in neutral and even friendly merchant vessels, and of the right of visitation and search, in order to determine whether they are neutral, and are documented as such according to the law of nations.

I assume in the present case what, as I read British authorities, is regarded by Great Britain herself as true maritime law: That the circumstances that the Trent was proceeding from a neutral port to another neutral port does not modify the right of the belligerent captor.

The third question is whether Captain Wilkes exercised the right of search in a lawful and proper manner.

If any doubt hung over this point, as the case was presented in the statement of it adopted by the British Government, I think it must have already passed away before the modifications of that statement which I have already submitted.

I proceed to the fourth inquiry, namely: Having found the suspected contraband of war on board the Trent, had Captain Wilkes a right to capture the same?

Such a capture is the chief, if not the only recognized, object of the permitted visitation and search. The principle of the law is, that the belligerent exposed to danger may prevent the contraband persons or things from applying themselves or being applied to the hostile uses or purposes designed. The law is so very liberal in this respect that when contraband is found on board a neutral vessel not only is the contraband forfeited, but the vessel which is the vehicle of its passage or transportation, being tainted, also becomes contraband, and is subjected to capture and confiscation.

Only the fifth question remains, namely: Did Captain Wilkes exercise the right of capturing the contraband in conformity with the law of nations?

It is just here that the difficulties of the case begin. What is the manner which the law of nations prescribes for disposing of the contraband when you have found and seized it on board of the neutral vessel? The answer would be easily found if the question were what you shall do with the contraband vessel. You must take or send her into a convenient port, and subject her to a judicial prosecution there in admiralty, which will try and decide the questions of belligerency, neutrality, contraband, and capture. So, again, you would promptly find the same answer if the question were, What is the manner of proceeding prescribed by the law of nations in regard to the contraband, if it be property or things of material or pecuniary value? But the question here concerns the mode of procedure in regard, not to the vessel that was carrying the contraband, nor yet to contraband things which worked the forfeiture of the vessel, but to contraband persons.

It was replied all this was true; but you can reach in those courts a decision which will have the motal weight of a judicial one by a circuitous proceeding. Convey the suspected men, together with the suspected vessel, into port, and try there the question whether the vessel is contraband. You can prove it to be so by proving the suspected men to be contraband, and the court must then determine the vessel to be contraband. If the men are not contraband the vessel will escape condemnation. Still, there is no judgment for or against the captured persons. But it was assumed that there would result from the determination of the court concerning the vessel a legal certainty concerning the character of the men.

This course of proceeding seemed open to many objec tions. It elevates the incidental inferior private interest into the proper place of the main paramount public one, and possibly it may make the fortunes, the safety, or the existence of a nation depend on the accidents of a merely personal and pecuniary litigation. Moreover, when the judgment of the prize court upon the lawfulness of the cap ture of the vessel is rendered, it really concludes nothing, and binds neither the belligerent State nor the neutral upon the great question of the disposition to be made of the captured contraband persons. That question is still to be really determined, if at all, by diplomatic arrangement

or by war.

One may well express his surprise when told that the law of nations has furnished no more reasonable, practical, and perfect mode than this of determining questions of such grave import between sovereign powers. The regret we may feel on the occasion is nevertheless modified by the reflection that the difficulty is not altogether anomalous. Similar and equal deficiencies are found in every system of municipal law, especially in the system which exists in the greater portions of Great Britain and the United States. The title to personal property can hardly ever be resolved by a court without resorting to the fiction that the claimant has lost and the possessor has found it, and the title to real es tate is disputed by real litigants under the names of imagi nary persons. It must be confessed, however, that while all aggrieved nations demand, and all impartial ones con cede, the need of some form of judicial process in determining the characters of contraband persons, no other form than the illogical and circuitous one thus described exists, nor has any other yet been suggested. Practically, there fore, the choice is between that judicial remedy or no judicial romedy whatever.

If there be no judicial remedy, the result is that the ques tion must be determined by the captor himself, on the deck of the prize vessel. Very grave objections arise against such a course. The captor is armed, the neutral is unarmed. The captor is interested, prejudiced, and perhaps violent; the neutral, if truly neutral, is disinterested, subdued, and helpless. The tribunal is irresponsible, while its judgment is carried into instant execution. The captured party is compelled to submit, though bound by no legal, moral, or treaty obligation to acquiesce. Reparation is distant and problematical, and depends at last on the justice, magnanimity, or weakness of the State in whose behalf and by whose authority the capture was made. Out of these dis putes 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 further. 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 cap ture would be an act of war-of war begun without notice, and possibly entirely without provocation.

The books of law are dumb. Yet the question is as important as it is difficult. First, the belligerent captor has a right to prevent the contraband officer, soldier, sailor, minister, messenger, or courier from proceeding in his unlawful voyage and reaching the destined scene of his injurious service. But, on the other hand, the person captured may I think all unprejudiced minds will agree that, imperfect be innocent- that is, he may not be contraband. He, as the existing judicial remedy may be supposed to be, it therefore, has a right to a fair trial of the accusation against would be, as a general practice, better to follow it than to him. The neutral State that has taken him under its flag is adopt the summary one of leaving the decision with the bound to protect him if he is not contraband, and is there- captor, and relying upon diplomatic debates to review his fore entitled to be satisfied upon that important question. decision. Practically, it is a question of choice between law, The faith of that State is pledged to his safety, if innocent, with its imperfections and delays, and war, with its evils as its justice is pledged for his surrender if he is really con- and desolations. Nor is it ever to be forgotten that neutraltraband. Here are conflicting claims, involving personality, honestly and justly preserved, is always the harbinger liberty, life, honor, and duty. Here are conflicting national of peace, and therefore is the common interest of nations, claims, involving welfare, safety, honor, and empire. They which is only saying that it is the interest of humanity require a tribunal and a trial. The captors and the cap- itself. tured are equals; the neutral and the belligerent State are equals.

At the same time it is not to be denied that it may some times happen that the judicial remedy will become impo While the law authorities were found silent, it was sug-sible, as by the shipwreck of the prize vessel, or other cir gested at an early day by this Government that you should cumstances which excuse the captor from sending or taking take the captured persons into a convenient port, and insti- her into port for confiscation. In such a case the right of tute judicial proceedings there to try the controversy. But the captor to the custody of the captured persons, and to

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