doubt, as the Secretary had complied with the demand for the surrender of the

self the attitude of a neutral; 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 articles 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.

"James M. Mason, and

McFarland are citizens of the United States, and residents of Virginia. "John Slidell, and George Eustis are citizens of the United States, and residents of Louisiana.

"It was well known at Havana, when these parties embarked on the Trent, that James M. Mason was proceeding to England in the affected character of a Minister Plenipotentiary to the Court of St. James, under a pretended commission from Jefferson Davis, who had assumed to be President of the insurrectionary party in the United States, and 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, as we think, rightly presumed that these ministers bore pretended credentials and instructions, and such papers are, in the law, known as dispatches. We are informed by our consul at Paris that these dispatches, having escaped the search of the Trent, were actually conveyed and delivered to emissaries of the insurrection 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 the commander, Williams, had knowledge of the assumed characters and purposes of the persons before named when they embarked on that vessel.

"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, legal,

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captured persons, that his action would be accepted as satisfactory. As soon.

customary, and belligerent proceeding by Captain Wilkes to arrest and capture a neutral vessel engaged in carrying contraband 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 dispatches, contraband of war?

"2d. Might Captain Wilkes lawfully stop and search the Trent for these contraband persons and dispatches? "3d. Did he exercise that right in a lawful and proper

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

"If all these inquiries 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 dispatches, contraband?

"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 embassador of your enemy on his passage. Dispatches are not 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 on all cases, namely: the spirit of the law. Sir William Scott, speaking of civil magistrates who were arrested and detained as contraband, says:

"It appears to me on principle to be but reasonable that, when it is of sufficient importance to the enemy that such persons should be sent out on the public service, at the public expense, it should afford equal ground of forfeiture against the vessel that may be let out for a purpose so intimately connected with the hostile operation.'

therefore, as it was known that Mason and Slidell were to be surrendered, all

"I trust that I have shown that the four persons who were taken from the Trent by Captain Wilkes, and their dispatches, 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 here 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 a right of visitation or search in time of peace, none, it is supposed, has existed in modern times about the rights 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 in the British authorities, is regarded by Great Britain herself as true maritime law, that the circumstance that the Trent was proceeding from a neutral port to another neutral port does not modify the rights of the belligerent power.

"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 shall you do with the contraband vessel?

fear of further quarrel with Great Britain on that score was allayed. Few cared

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 will 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 the contraband things which worked the forfeiture of the vessel, but to contraband persons.

"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 carrier from proceeding on his unlawful voyage, and reaching the destined scene of his injurious service. But, on the other hand, the person captured may be innocent, that is, he may not be contraband.

"He therefore has a right to a fair trial of the accusation against him. The neutral state that has taken him under its flag is bound to protect him if he is not contraband, and is therefore entitled to be satisfied upon that important question. The faith of that state is pledged to his safety, if innocent, as its justice is pledged to his surrender, if he is really contraband.

"Here are conflicting claims involving personal liberty, life, honor, and duty. Here are conflicting national claims, involving welfare, safety, honor, and empire. They require a tribunal and a trial. The captors and the captured are equals; the neutral and the helligerent state are equals.

"While the law authorities were found silent, it was suggested at an early day by this Government that you should take the captured persons into a convenient port and institute judicial proceedings there to try the controversy. But only courts of admiralty have jurisdiction in maritime cases, and these courts have formulas to try only claims to contraband chattels, but none to try claims concerning contraband persons. The courts can entertain no proceedings and render no judgment in favor or against the alleged contraband men.

"It was replied, all this is true; but you can reach in these courts a decision which will have the moral 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

to test the logic of Mr. Seward's arguments, or to discuss the proprieties of

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 objections. 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 accident of a merely personal and pecuniary litigation.

"Moreover, when the judgment of the prize court upon the lawfulness of the capture of the vessels 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. regret we may feel on the occasion is nevertheless modified by the reflection that the difficulty is not altogether anomalous.

The

"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 of real estate is disputed by real litigants under the names of imaginary persons.

"It must be confessed, however, that while all aggrieved nations demand, and all impartial ones concede, the need of some form of judicial process in determining the characters of contraband persons, no form than the illogical and circuitous one thus described exists, nor has any other yet been suggested. Practically, therefore, the choice is between that judicial remedy, or no judicial remedy what

ever.

"If there be no judicial remedy, the result is that the question must be determined by the captor himself on the deck of the prize vessel. Very grave objections are 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.

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his language. To a discriminating judgment, however, Mr. Seward seemed to

"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 refuses 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 choice between 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 is therefore 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, can not 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 thus 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 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

have detracted somewhat from the dignity of the position he had assumed,

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.

"I forbore to seize her,' he says, 'in consequence of my being so reduced in officers and crew, and the derangement it would cause innocent persons, there being a large number of passengers who would have been put to 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. He measured the sacrifices which this decision would cost. It manifestly, however, did not occur to him that beyond the sacrifice of the private interests (as he calls them) of his officers and crew, there might also possibly be a sacrifice even of the chief and public object of his capture, namely, the right of his Government to the custody and disposition of the captured persons.

"This Government cannot censure him for this oversight. It confesses that the whole subject came unforeseen upon

which was that of a statesman whose conduct was prompted by justice and

the Government, as doubtless it did upon him. Its present convictions on the point in question are the results of deliberate examination and deductions now made, and not of any impressions previously formed.

"Nevertheless, the question now is, not whether Captain Wilkes is justified 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 consequences 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 the tribunal to whose jurisdiction it appeals.

"If the captured party indicated proposes 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 second reason assigned by Captain Wilkes for releasing the Trent differs from the first. At best, therefore, it must be held that Captain Wilkes, as he explains himself, acted from combined sentiments of prudence and generosity, and so that the release of the prize vessel was not strictly necessary or involuntary.

"Secondly.-How ought we to expect these explanations by Captain Wilkes of his own reasons for leaving the capture incomplete to affect the action of the British Government. The observation upon this point which first occurs is, that Captain Wilkes' explanations were not made to the authorities of the captured vessel.

"If made known to them, they might have approved and taken the release, upon the condition of waiving a judicial investigation of the whole transaction, or they

moral principle, when he confessed that, under different circumstances, he

might have refused to accept the release upon that condition.

"But the case is one not 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 knowledge 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.

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would have been actuated by the less honorable motives of policy and ex

ments by which he sustained himself upon it have been an inspiration to me in preparing this reply.

"Whenever,' he says, 'property found in a neutral 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

"I trust 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 of it against my own country. But I am relieved from all embarrassment on that subject. "I had hardly fallen into that line of argument, when I discovered that I was really defending and maintaining, not an exclusive British interest, but an old, honored, and cherished American cause, not upon British authorities, but upon principles that constitute a large portion of the distinctive policy by which the United States have developed the resources of a continent, and thus, becoming a considerable maritime power, have won the respect and confidence of many nations.

These principles were laid down for us in 1804 by James Madison, when secretary of state in the administration of Thomas Jefferson, in instructions given to James Monroe, our minister to England.

vidual 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 decide this case in favor of my own Government, I must disallow its most cherished principles, and reverse and forever abandon its essential policy. The country can not afford the sacrifice.

"If I maintain those 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.

"The claim of the British Government is not made in a discourteous manner. This Government, since its first organization, has never used more guarded language in a similar case.

"In coming to my conclusion, 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 comparative unimportance of the captured persons themselves, when dispassionately weighed, happily forbid me from resorting to that defence.

"Nor am I unaware that American citizens are not in any case to be unnecessarily surrendered for any purpose into the keeping of a foreign state. Only the captured persons, however, or others who are interested in them, could justly raise a question on that ground.

"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,