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The substance of the whole matter is this: By carrying the despatches of the enemy, in whatever form embodied, the greatest possible service may be done to one belligerent, and the greatest possible injury to another.
If, then, the “ Trent” had been brought in for adjudication, and had been condemned, England could not have said, that, as matter of law, the condemnation was wrong. She might and would have said, that, as, matter of courtesy, our officers should have foreborne the exercise of their extreme right, and have suffered the vessel, the other passengers and cargo, to proceed on
We might well have said, that, from the beginning, it had been the policy of this Government to enlarge and strengthen the rights of neutrals; to free neutral commerce from every unnecessary restraint; that especially had this been the case with respect to the treating of persons as within the rule of contraband of war. We might have shown with what anxiety we had sought to limit the rule on this point “ to soldiers in the actual service of the enemy;” that in our treaties with France, in our treaties with Mexico and the South-American States, we had inserted this important exception to, and limitation of, the rule of international law; in all cases, however, providing that the limitation should not extend to those nations with which we had no such treaty; of which England was one. We might have well said, that the propriety of this limitation is every day becoming more apparent; that the introduction of steam into navigation had brought nations into closer proximity, and into more frequent and regular intercourse; that the wants of modern commerce and modern culture had made mail-routes as necessary on the sea as on the land ; and that we ought to remove all obstructions from the pathway of these messengers of civilization and of peace. We might have said, We will gladly assent to such modifications of the law of nations as shall meet and satisfy these wants ; the modifications most clearly demanded being, that no persons shall be deemed within the principle of contraband of war but soldiers in service ; and that, when hostile despatches are taken from neutral mail-steamers, the claims of humanity and the interests of the commercial world shall be respected, and the vessel be permitted to proceed on its voyage without unnecessary delay, — the legality of the seizure being determined without the presence of the ship.
As to this case, we stand upon the existing law; we feel ourselves to be justified by the law as written. If you think otherwise, we will, in deference to the excellent suggestion made by the British Government to the Paris Congress of 1856, have “recourse to the offices of a friendly power.” We will submit the whole matter to arbitration, and abide the result.
But it is said, Mr. Speaker, that the omission to bring in the vessel for adjudication rendered the whole proceeding void ab initio. A word upon this point. There is no just ground for complaint of the proceedings, so far as they went. The complaint is, not of what was done, but what was left undone. Two questions arise here: First, was there a sufficient legal reason for not bringing in the vessel ? Secondly, what, in the ab
sence of such legal reason, is the effect of the omission ?
1. Was there a sufficient reason for not bringing in the "Trent" ?
Some things are plain. It is plain that Capt. Wilkes understood that the “ Trent” was lawful prize, and that his course was a proceeding in the capture of prize of war. It is plain also that he determined to waive his right to take in the vessel as prize, and to suffer her to proceed on her voyage. These facts are of the highest importance. The difference between the boarding of a'vessel by a boat's crew, and taking from her men or goods, – the act constituting no part of a prize proceeding, — and the release of a prize by a captor in the exercise of his discretion, and for reasons of necessity or of humanity, is plain and vital: neither ingenuity nor dulness can confound them. The whole proceedings of Capt. Wilkes were characterized by the utmost good faith. Had he a legal excuse for not bringing in the vessel for adjudication ? We do not expect from a sailor, however gallant and accomplished, the precision of special pleading. He gives as the first reason the want of a sufficient prize-crew, in consequence of his being so reduced in officers and men. Was that the fact? It will, I have no doubt, be found to be so.
We have now the statement of an officer and a gentleman, and nothing to control it. If such was the fact, and Capt. Wilkes acted upon it, he was justified in law for not bringing the “ Trent” in. It is immaterial that motives of humanity concurred with and fortified that conclusion. The heart responded to the head. It neither assumed its prerogative nor questioned it. It only said, "Amen.” If the legal excuse existed and was acted upon, it was enough; and the ground upon which the Crown advisers are reported to have proceeded falls from under them.
2. But suppose there was error in not bringing in the vessel: what is the result? It is, that the questions at issue must be settled by the sovereigns of the parties without the aid of a prize-court. The prize-court is the inquest of the sovereign of the captor, and for his protection. It settles the question of seizure, so far as the rights of property are concerned. It does not settle the question of right as between the sovereigns. In this case, the question would have been as to the forfeiture of the vessel : the persons or despatches would not have been directly involved; the judgment would not have operated upon them. If the vessel had been brought in and condemned by a court of admiralty, and England had believed that the judgment of the court was against the law of nations, she would not have acquiesced; she would not have been bound to acquiesce. The same controversy would have opened ; the same questions to be settled as now. - Pinkney's Statement of the Law in the Case of the “ Betsey, Wheaton's Memoirs of Pinkney, p. 199.
Those questions would have been, Had we the right of search ? was it fairly exercised ? were the persons taken within the prohibition ? and to every one of these questions the law of nations would have answered in the affirmative; and, if England had consulted her oracles, she would have heard the same response. It is not too much to say, that Lord Stowell would have condemned the “ Trent” on the double ground of carrying despatches of the enemy and of resistance to search.
Mr. Speaker, when this whole matter shall have been calmly and thoroughly considered and weighed, the judgment of the civilized world will be, or should be, with us.
We have the first impression, and not the sober second thought. The question which has been considered is, rather what the law should be made to be, than what it is. When the matter is more carefully weighed, it will be seen and felt that no wrong was done to England ; that there was no wrong in the forbearance to exercise an extreme right; no insult, for none was intended; that our “ failing,” if any, “ leaned to virtue's side,” was a relaxation of the iron rigor of law from motives of humanity and Christian courtesy; that, on the other hand, England has done to us a great wrong in availing herself of our moment of weakness to make a demand, which, accompanied as it was by“ the pomp and circumstance of war," was insolent in spirit, unmanly and unjust. It was indeed courteous in language; it was the courtesy of Joab to Amasa as he smote him in the fifth rib : “ Art thou in health, my brother ? ” That message of Lord Russell to Lord Lyons which could cross the Atlantic would not have had projectile force enough to have passed from Dover to Calais.
Such is the penalty of weakness, even temporary weakness.
Upon the grounds upon which this surrender has been made, nothing is gained for the cause of neutral rights.