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 the 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. These modifications of the case, as presented by Commander Williams, are based upon our official report.

I have now to remind your lordship of some facts which doubtlessly 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 oction was existing in the United States which this

suppressing by the employment of land

d to this domestic strife the nited riendly power, we had

ain was

titude as

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. These exceptions of contraband from favor were a negative acceptance by the parties of the rule hitherto everywhere recognized as a part of the law of nations, that whatever is contraband is liable to capture and confiscation in all cases.

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 residents of Louisiana. 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 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 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, as we think, rightly presumed 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 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 ac

officers of the Trent, including CommanderTM

edge the assumed characters and

nam en they embarked

You

of presei Captain

"

statement of it that went up to the British government, was undertaken as a simple legal and customary 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 despatches contraband of war?

2d. 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 despatches, had he a right to capture the persons?

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 despatches, 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 ambassador of your enemy on his passage. Despatches 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 in all cases namely, the spirit of the law. Sir William Scott, speaking of civil magistrates who are arrested and detained aband says:

"It appears to me on principle to be but reasonable that when it is of sufficient importance to the enemy that such persons shall 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 operations."

I trust that I have shown that the four persons who were taken from the Trent by Captain Wilkes, and their despatches, 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 a 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 circumstance 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 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 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 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 belligerent states are equals.