' ' - '., '' '
BY MYID OVER.
THE MASON AND SEIDELL CASE.
X.etlers of live English Minister and
Secretary Seward.
Below will be found the correspondence be
tween the British Minister and Secretary Sew- |
ard from which it may bo inferred that the !
difficulty between this country and England
are amicably settled:—
EARL RUSSELL TO LORD LYONS.
FOREIGN OFFICE, NOV. 30,1861.
The Lord Lyons, K. C. 8., Sfc., Sfc., Sfc.
Afy Lord —lntelligence of a very gravetsa*
ture has reached her Majesty's Government:
This intelligence was conveyed officially to
the knowledge of the Admiralty by Comman
der Williams, agent for mails on board the
Contract steamer Trent.
It appears from the letter of Commander
Williams, dated ♦'Royal Mail Contract Backet
Trent, at Sei, November 9," that the Trent
left Havana oo the 7th inst, with her Majes
ty's mails for England, having ca board nu
merous passeDgere. Commander Williams
states that shortly after noon on the Bth a
btoiiuer having the appearance of a mm of
wir, but not (bowing colors, was observed
ahead. On Keating iter at 1. 15 P. M. she
fired a round shoe froui hor pivot gnu across
the faovfs of tho Treat, and showed American
colors. While the Trent was approaching
her slowly the American vessel discharged a
shell across the bows of the Trent, exploding
•half a cable's length ahead. The Trent then
stopped, and an effieer with a large armed
guard of marines boarded her. 'ibe effi'er
demanded a ht of tho passengers; and, com
pliance with this demo.od being refu-ec!, the
officer sail he hid orders to arr-s: Messrs. Mi*
ecu, Slide!l, Maefarland and Eustia, and that
he had sure ioforaiatiou of their beiog pas
sengers in the Treat. While soai parley was
going on upon this matter Mr. Siideli stepped
forwird and told tba American ofH:er that the
four persons be had named wete then standing
before him. The ComrnaaJbr of the Trent
aud Commander Williams protested against
the act of taking by force out of tha Trent
these four passengers, then under the protec
tion of tho iji jtiah flag. But the San Jacin
to was a'f that tme only- two feu ad i J yaro.s
from the Trent, her ship's company at qnar*
ters, her ports open, and torepions out. Re
sistance was therefore out of tho question, aad
the four gentlemen before Darned were forci*
bly taken out of tuc ship. A further demand
was tuMe tbf.t the Commander rf the Trent
should proceed on board tbo Ban Jaciuto, but
he said he would uot go uoiess forcibly coin
palled likewise, and this demand was cot in
n-ted upon.
It tha? appears that certain individuals have
teen forcibly takru from on beard a British
V- sso 11 tba ship of a neutral I'o.wer, while
such vessel was pursuing a lawful an l inno
cent voyage—aa set of violence which wss au
affr nt to ibe British flag and a violation of
international law.
Iter M-j sty's Government, bearing in mind
the friendly relators which have long subsist
ed between Great Britain and the United
States, are willing to believe tint the United
Stites Laval officer who committed the aggres°
siou was not acting in compliance with an au
thority from Lis Government, or that if ha
conceived himself to be so authorized, he great
ly misunderstood the instructions which he
had received. For the Government of the
United Stalcg uust, be fully aware that tho
British Government could not allow such an
affroot to the national honor to pass without
full reparation, and Her Majesty's Govern
ment are unwilling to believe that it could be
the deliberate iDtedtion of the Government of
the United States unnecessarily to force into
discu-sion, between the two Governments, •
•question of so grave a character, and with re
gard to which the whole British nation would
be sure to eutertain such unanimity of feel
ing.
Her Maj'ety's Government, therefore, trust
that when this matter shall have been brought
under tb consideration of the Government of
toe Uuiicd Statas that Government will, of its
own accord, offer to the British Government
such redress as alone oould satisfy tho British
aatiou, namely, tho liberation of the four gen
tlemen and their delivery to your Lordship, tn
order that they may agaiu be placed under
British protection, and a suitable apology for
the aggression which has been committed.
Should these terms not be offered by Mr.
Seward yoa will propose them to htm.
You arc at liberty to read this dispatch to
the Secretary of State, ami, if bo shall desire
.it, you will give Liur a copy of it.
iam, &c., IlcssiLL.
.MIL SEWARD TO LORD LYONS.
DEJMBTMJSHT o# STATS, 3
WASHINGTON, Dec. 25,1861. j
The rtg&f honorable Lord Lyons, Ac., Src^Ac.
MY Lor J— Earl Russell's despatch of No
vember the 30th, a copy of which you have
left with me at my request, ia of the following
effect, namely:
That a letter of Commander Williams, da-,
ted Royal Mail Contract Packet boat Trent,
at w. November 9th, states tint that vessel
left Havana on the 7th of November, with
Her Majesty's mails fur England, having on
board auuierows passengers. Shortly after
noon, oo the 3th of November, the United
States war steamer San Jacinto, Captain
Wilkes, not sbowiog oolors, was observed j
abchd. That Steamer, on being neared by the
Trent, at one o'clock fifteen minutes in the
afternoon, fired a round a pivot gun
tcross her bows, tad showed American colors.
A Weekly Papei Devoted to Literature, Politics, the Arts, Sciences, Agriculture, &c., &c*—'Terms: Que, Dollar and Fifty Cento in Advance.
While the Trent was approaching slowly to- ,
wards the San Jacinto she discharged a shell t
across the" Trent's bows, which exploded at'
half a cable's length before her. The Trent
then stopped, and an officer with a large armed :
guard of ruariucs boarded her. The officer;
said he had orders to arrest Messrs. Mason, !
Slidell, Miofarland and Eustia, and had sure
information that they were passengers in the
Trent. While seine parley was going on up
on this matter, Mr. Slidell stepped forward :
said to the American effioer that the four per- ;
sens he bad named were standing before bttn. !
The Commander of the Trent uuJ Uomtumd- ;
er Williams protested against the act of t*k- !
rug those four passengers, out of r&e Treat,
they theo being uuder tiie protection of the ;
BritLh fhg. But the San Jacinto was at
this time ouly two hnndred yards distant, her
ship's company ut quarters, her ports opra and
tooipiocs out, and so resistance was out oi
tire question. The four persons before named
were then forcibly taken out of the ship. A
further demand was muio that tbo Oounuand
er of the Trent ahoiild proceed on board the
San Jacinto, lust he said he would not go un
less forcibly compelled likewise, and this Ue-. 1
maud was uot insisted upon.
Upon this statement Burl Russel romtibs
that it thus appears that certain individuals
have been forcibly taken froui on board a
British vessel, the ship of a neutral power,
VYiiite that vessel was pursuing a lawful and in
nocent voyage, an act of violence which was
an affront to the British flag and a violation of
international law.
Earl Kussel next says that Her M ijesty'e
Government, bearing in imod the friendly re
lations ahieh have esiated between Great Bru {
lain aD(I the United States, are filling to be
lievo that ths bavat i laser who commitied this
a-grcssiou was not acting in compliance with
any authority from b"s Government, or that,
if ho onneeived Littotlf to be so authorized,
ho greatly,misunderstood tho instructions which
he had received.
Earl Rusiell argues that the United States
must be fully aware that tho Urifirh Govern-J
uient coui'l not allow such an affront to thel
national honor to pass without full reparatiojp
and they are willing to believe that it
not bo the deliberate iuoction of the Govern
ment of the United States unnecessarily to
lojeo into discussion between tho two Govern
ments a question of so grave a cbiraeter, end
with regard to which the whole British natiou
would be sure to entertain such unanimity of
feeling.
Earl Russell, resting upon tho statement
and tho argument which i have thns recited,
closes with saying that Her Mijesty's Govern
ment trusts that when this matter shall have
beea brought under the consideration cf the
United States it wilt, of its owu accord, offer
to tho British Government such redress as al .ue
could satisfy tho British nation, namely, tho
liberation of tho four piisoners taken from tho
Trent, ami their delivery to your Lordship, in
order that they may agaiu ho placed under
British protection, and a suitable policy for the
aggression which has been committed. Eitl
Russell il.uliy instructs you lo {repose (hso
terms to me, if 1 should nut fiitt off.r tficu:
on the part of the Government.
This despatch has been tutmit'ed to the
President
The British Government has rightly conjec
tured, what it is uow my duty to state, that
Capt. Willies, in conceiving and executing tho
proceeding in question, acted upon his owo
suggestions of duty, without ai.y direction or
instruction, or even foreknowledge of it on the
part i f ibis Government. No directions had
oeeu given to him or UDJ other naval officer, to
arrest tho four persons named, or any of them,
on theT'reut, cr on any other British vessel, or
I oa any other neutral vessel, at tho phce where
is occurred or elsewhere. Tho British Govern
ment will justly iufcr from those iacts that the
United btales not mly bad no purpose, but
even no thought of forcing into di cussion the
question which has srisrn, or any which could
affect in any way the sensibilities cf the
British nation.
It is true that a round shot was fired by the
San Jacinto from her pivot guu when the Trent
was cut mtly approaching. But, as the facts
Lave been reported to this Government, the
shot was nevertheless intentionally firod in
a direction eo obviously divergent from the
oourse of the Trent as to be quite as harmless
a a blank shot, while it should bo regarded as
a signal.
So ulso we learn that the Trent was not sp
preaching tho San Jaciuto slowly wbeu the
shell was fired acroes her bows, hut, on the
contrary, tho Trent wi9, or secoici o be, mov
ing under a full head of steam, as if with a
purpose to pass the San Jacinto.
Wc are informed also that the boarding offi
cer (Lieutenmt Fairfax) did not bond the
Trent with a large armed guard but he left his
marines in his boat wheu ho entered the Trent,
tie stated his instructions from Capt. VVtikes
to search for the four persons named, ia a res
pectful and courteous though decided manner,
and he asked the Captain of tho Trent to show
bis passenger list, which was refused. The
Lieutenant, as we are informed, did not em
ploy absolute force in transferring the passen
gers, but he used just so much us was neces
sary to satisfy the parties concerned that refu
sal or resistance would be unavailing.
Ua, also, we are informed that the Obtain
of tba Trent was not at any time or in any
way required to go on board the San Jacinto.
These modifications of tho oase ne presented
by Commander Williams are based upon our
official reports.
1 have now to remind your Lordship of some
fasts which doubtlessly were omitted by Eari
Russell, with the very proper and becoming
motive of allowing them to he brought into
the ease, on tho part of the United States, in
BEDFORD, PA. FRIDAY. JAN. 10.18G2.
the way most satisfactory to this Government.
These lacts are that at the time the transac
tion occurred an insurrection was existing in
the United States which this Government was
engaged in suppressing by the employment of
laud 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; end that Spain was considered in the same
light, and had assumed the same attitude as
Great Britain.
It has been settled by correspondence that
the Uuited States and Great Britain mutually
recognized as applicable to this local strife
these two articles of tho declaration by the
Congress of Paris in 18T6, namely, thai the
neutral or frieudly flag should cover enemy's
goods net contraband of war, and thai neutral
goods not contraband of war are not liable to
capture under an enemy's flag. These excep
tions cf contraband from iwvor were a negative
acceptance by the parties of the rule hitherto
eveiwhere recognised as a part of the law ot
nations, that whatever is contraband is liable
to capture and ooiifisration in ail cases.
James M. Mason and E. J. MeFar!ad*are
citizens of the United States, aud residents of
Virginia. John Siideli .od George Eus lis are
citizens of the United States and residents of
Louisiana. I: was well known at Havana
when these parties embarked iu the Trent that
Jaus;s M. Mason was proceeding to EogUnd
in the affected character of a Minister Pleni
potentiary to tha Court of Bt. James, under a
pretendrd commission front Jcff-rson Davis,
who had assumed to be Prtsideot of the insur
rectionary party in the United States, and E.
J. M.eiuiUud was going with htm in a liko un
real character of Secretary of legation to the
preteuded mission. John SltdciJ, in simitar
I oirciumtaucea, was g.iiogjp Paris as a pretend,,
i ed "minister to the Emperor of the French, and
j George Eustis was the chosen Secretary ofLe
; gation for that simulated mission. The faot
{ that these parsons bad assumed such characters
Lis beea riuco avowed by tho same Jefferson
ffhvis in a pretonijscl message to an unlawful
Hud insurrection iry OoDgress. It was we
%iiuk, rifwtly presumed that these Ministers
bore credentials and instructions, and such p j
pers arfia the law known 3 despatches. We are ;
iufprmcf bj our Copsuf at Pariethat these hes- |
patches, having escaped the search of the Trent,
were aols*fnJy £oag.eje<J an : delivered to thd
emissaries t f in *
Although it is not essential, yet it is proper to
stale, i-u I do also upon iaforunfieo and be
lief, that the owner and agent, and ell the offi
cers of too Trent, including the Corn amide r
Williams, had knowledge of tho assumed char
acters arid purposes of ike persons before nam
ed, when tiiey embarked on that vessel.
Your lordship will now perceive that the
cases before us, instead of presenting a mere*
ly flagrant act of viol'-ccc on the part of Uapt.
Wilkes, as might well bo inferred from tho in
cimpic'o statement of it that went up to the
British Government, was undertaken as a sim
ple, lgal a id customary bolligereu- proceeding
by Gift. Wilkes to arrest and capture u neu
tral vessel engaged in carrying contraband of
war for the use and bcnelit cf the insurgents.
The question beforo U3 is whether to.is pro
ceeding was authorized by and nondueted ac o
cording to tho law of nations, ft involves ths
following inquires :
Ist. Were tho parsons named and their sup
posed despatches contraband ol war ?
2d. Might Oapt. Wilkes {awfully stop and
searoh the Trent for thes9 contraband parsons
aad despatches ?
3d. Bid ho exerciso tho right in a lawful,
proper manner ?
4th. Having found the contraband persons
on board and in picsnmcd possession of the
contraband despatches, had he a right to cap
ture the persons?
sth. Did he exercise that right of capture in
the manner allowed and recognised by tbo law
of natiousl
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, name
ly, were the four persons mentioned, aud their
supposed dispvtshes, contraband?
Maritime law so generally deals, as its pro--
feasors say, in rem , that is, with property, and
so seldom with persons, that it seeuis a strain
ing cf the term contraband to apply it to them.
But persons, as well as property, may bo con
traband, since the word means broadly "con
trary to proclamation, prohibited, illegal, un
I lawful."
All writers and judges pronounce Daval or
military persons iu the service of the enemy
contraband. Vattel says war ailotva us to cut
off from an enemy all bis resources, auti to l.in
d r him from sending ministers to solicit as*,
sisfanca. And Sir William Scott says you
rnty stop the ambassador of your enemy ou his
passage. Dispatches are net less clearly con
traband, ami the bearers or couriers who under
take to oarry them fall under the same com
detonation.
A subtlety might be raised whether pretend
ed ministers of aa usurping power, but rocog
niaod as legal by cither the belligerent or neu
tral,ould be held to bo contraband. But it
would disappear on being subjected to wbat is
the true tost in all oases—namely, the spirit
of the law. Sir Wiiiiaiu Scott, speaking of
civil tpagistratcs who were arrested and detain
ed as contraband, says :
"It appears to mo on prineiplo to be but
reasonable (hat when it is of sufficient import
ance to the enemy that such persons thsll be
srnt out on the publis service at the public
expense, it should alFord equal ground of for
feiture against the .vossel that may be let out
for a purpose so intimately connected with the
hostile operations."
I trast that I bare shown that the four per-
sons who were takon from the Trent by Capt.
Wilkes, sud their despatches, were contraband
of war.
The second inquiry is, whether Capt. Wilkes
bad a right by tho law of nations to detain end
search the Trent?
Ib® Irent, though she carried mails, was a
contract or merchant vessel-—a common carrier
for hire. Maritime law knows oolv three
classes of vessels—vessels of war, revenue ves
sels ami tnercbaut vessels. The Trent falls
witli.n tbe latter cla e s. Whatever disputes have
existed concerning a right of visitation
in time oi peace, none, it is supposed, bis ex
isted ia modern times about tbe right of a
belligerent irt time ot* war to capture contra
bands in neutral and even frieudly merchant
vessel* and of the right of visitatiou and search,
in order to determine whether they are neutral,
and are documented as such according to
the law of nations.
1 .usuuie, in the present case, what, as I
read British uutuoriiie?, is regarded by Great
Britain herself as true maritime law; that the
cirrntuMcDt-a that the Treut was proceeding
from u neutral port to another neutral port docs
not iuodiiy tha right of tho belligerent captor.
The third question is whether Capt. Wilkes
exercised tbe tight of search iu a lawful and
proper manner *
If auy doubt hung over this point, as ho
case was presented in thestatem >at of it adopt
ed by the British Government, I think it must
Have already passed away before the utodifiea
t.jps of tout statement of it adopted by the
British Government, I think it most have al
ready passed away before the modification* of
that statement which I have already submitted-
I procoed to tbe fourth inquiry, uauHy-*-
iiaving touud the suspected contraband of
war ou boatd the Trent, had Capt. Wilkes a
right to capture the same ?
Bach a capture is the chief, if not tho only
reoogaized object ot a visitation and search.—
Tuc principle of tho law w that a belligerent
exposed to danger amy prevent the contraband
potions aud things Irosu apply jug them-elveu
or being applied to the bo-tile usee or purpos
es designed. 'Tba law is so vory liberal in
this respect that wheu a ecntrahind is found
ea board a neutral vessel, no; only is the con
traband forfeited, but tbo vessel, which is the
vehicle of its passage or transnartattoo, being
tainted, also becomes contraband, aad is sub*
jeo'ed to capture end confiscation.
Only tu lit.ii question remain 4, namely :
Did Captain Wilkes exercise the right of cap
turing tbe contraband ia conformity witu toe
law of uatious i
Ifc U ji>*t Uero tbat die uibk'ultips of the case !
begin. \sThat is the dinner which the law of ;
nations prescribes for disposing of the contra- i
band wueu jou have found and seined it on 1
board of the neutral vessel ? The answer would j
be easily tumid if the question were what you i
shall do wilt the contraband vessel. You !
roust take or send her into a convenient port,
and subject her to a judicial prosecution there j
iu admirality, which will try and decide the j
questions of neutrality, contra-;
baud add capture. sgatu, you would j
promptly &ad the same answer if too question j
wore, What is the manner of proceeding pre
seabed by the law of nations iu regard to the j
ouutruband if it ha property or things of to a- j
teii ■] or pecuniary value ?
Bat the question here concerns the mods of j
procedure iu regard, not to the vessel that was !
carrying the eoutrabauti, nor yet ooutrbaad
things which worked lha forfeiture of the vsa
scl, but to contraband persons.
The books of law aia dumb, Yet the ques- j
tron is as important as it is difficult. Fust, j
the belligerent captor has u right to prevent J
the contraband officer, soldier, sailor, minister,
or courier from proceeding iu his unlawful vny- j
ago and reaching the destined scene of his iu- j
jurioua service. But, on tha other hand, tha ;
person captured may be innocent—that he may j
not be contraband. Lie, therefore, ha< a right ,
to a fair trial of the accusation against him.—
The neutral State has taken hiui under its Hag, I
is bound to protect him if ha is uot coutrabaud,
and is therefore eutiiled fa be satisfied upon
that important question. The faith of that
State is pledged to his safety, if inttcaent, as
its justioo is pledged to his surrender if he is
realty contraband, ilofo are conflicting
claims, involving personal iiborty, life, honor,
and duty. Here aro conflicting natioual cUims
involving welfare, safety, houor and empire.—
They require a tribunal and a trial. Tuo cap
tors and the captured are equals; the oeuttal
and the belligerent State aro equals.
While the law authorities were found silent
it was suggested at an early day by this Gov
ernment that you should take the captured
persons into a convenient port and institute ju
dioial proceedings there to try the controversy.
But only courts of admirality havejurisdiotiou
in maritime cases, and these courts have for
mulas to try only claims to contraband per
sons, The oourts oaa entertain no proceed
ings and render no judgment iu favor of or
against the alleged contraband men.
It was replied all this is true; bnt yon can
reaeb in those eourta 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 CEn prove it to be
so by proving the suspected men to be contra
band, and the court must then determins the
vessel to be contraband. If tbe men are not
contraband the vessel will escape condemna
tion. Still there is bo judgment for or agaioat
the captured prisons. But it wis assumed
that there would result from the determination
of the court concerning the vessel a legal cer
tainty concerning the character of the men.
Tbe course of proceeding seemed open to
many objections. It elevates tbe incidental
inferior private interest into the proper place
of tbo paramount public one, and possit ly it
taay the fortuues, the safety, or the exis
tence of a nation depend on the accidents of
a merely personal and pecuniary litigation.—
Moreover, when tho judgment of the prize
court upon the lawfulness of the capture of
the vessel is rendered, it realy concludes noth
iug, and binds neither the belligerent State
nor the neutral upon the great question of the
disposition to be made of the captured con
traband persons. Teat question is still to be
really determined, if at all; by diplomatic ar
rangement or by war.
One may well express bis surprise when
toid that tbe law of nations has furnished no
more reasonable, praJtieabte, and perfect mode
than this of determining questions of such grave
import between sovereign powers. Tbe regret
wo may feel on the occasion is nevertheless
modified by the reflection that the difficulty is
uot altogether anomalous. Similar and equal
deficiencies ftre found in every sy stem of utu
nicipal law, especially in flic system which ex
ists in the greater portions of Great Britain
and the United States. The title to personal
property cu hardly ever bo received by a
Uourt without resorting to the fiction that tbe
claim mt bus lost and the possessor his found
it, aod the title to real estate is disputed by
real litigants under the names of imaginary
persons. It must be confessed, however, that
while all aggrieved uatious demand, and all
impartial cues concede, the need oi some form
of judicial process iu determining the charac
ters of contraband persons, no other form than
tho illogical and eircui'ous one thaa described
exists, nor has aoy other yet been suggested
Practically, therefore, the choice is between
that judicial remedy or no judiuial remedy
whatever.
If there be no judicial rem-dy tbo result is
that the question must he determined by the
captor himself, ou tbe deck ot the prize vessel.
Very grave otjrations uri<e against such a
course. Toe c.iptor is arined, the nueiral i
unarmed. Tbe captor is interested, prejudi
ced, aad perhaps violent; the neutral, if truly
neutral, is disiuterested, sub Sued, and helpless.
Tue tribunal is irresponsible, whjle its judge
ment is carried into instant execution. The
captured party u compelled to submit, though
bound by no legal, mural, or treaty obligation
to acquiesce. Reparation is distant and pro
blem itical, and depends at last on the justice,
magnanimity, or weakness of theiftate in whose
behalf and by whose authority the capture wis
made. Out cf these disputes reprisals and
Wars nece>9anly arise, and these nre so fr qu-nt
and destructive that it may Well be deviated
waether tuis form of rem- dy is not it groattr
social evil than sit thai couid follow if tuc bel
ligerent tight of search wero universally re*
oouueed and abolished forever. Bui carry the
case one step farther. What if tbe State that
bus made the capture uureaaouably refuse to
hear tbe ci taplaint of tbe neutral or to redress
it? In that case, the very act of capture
would be aa act of wtr—of wsr begun with
out notice, aud possibly entirely without prov
osauou.
I tbtttk ull unprejudiced minds will agree
that, imperfect as the existing judicial remedy
rosy bo supposed to be, it would be, os a gene
ral practice, better to follow it than to adopt
the sommaiy cne of leaving tbe derision with
the captor, and relying upon diplomatic debates
to review wis decisioo. Practically, it is a
question of choice between law, wt'h its impf r
teetious and delays, and war, witu its evils and
desolation?. Nor is it ever to be forgotton
that neutrality, honestly ana justly preserved,
is always tue htrbinger of pceee, and therefore
is the common interest of nations, which is on
ly saying tbat it is the interesa of humanity
itself.
At the same time it is not to bo denied tbat !
it may sometimes happen that the judioial reme
dy will become impossible, as by the ship-wreck
of the prizi vessel," or other circumstances
which excuse the captor from sending or t tk
tug her into port for confiscation. Jn such a
case tbe right of the captor to the custody of
the captured persons sod to dispose of thorn, if
they aro really contraband, so as to defeat
tbetr unlawful purposes, caonnt reaaocsbly be
dented. What rule shall be applied in such a
ease? Clearly, the captor ought to be required
to show that the failure of the judicial remedy
results from circumstances beyond his control,
aud without his fault. Otherwise ho would be
allcuci to derive advantage from a wrongful
act of bis OV7D.
!
Iu the present ease, Capt. Wilkes, after cap
turing the contraband persons and uukiug pr ze
lof tue Trent in what seems to us a peifcctly
! lawful manner, instead of sending her into
j port, released her from the capture, and per
; mitted her to proceed with her whole cargo ou
' her voyage, lie thus effsetually prevented tbe
judicial examination which otherwise might
have occurred.
If now, the capturo of thocontraband per
sons aud the capture of the contraband vessel
are to be regarded, not as two ttrparaio or dis
liuot transaction* under the law of nations, but
|as oue transaction, one capture only, then it
I follows that the capture iu this case was left
uufl uished or abandoned. Whether the Unt
tcd States have a right to-retaia the chief pub
lic benefits of it, namely the custody of the
captured persons on proviug them to bo contra
band, will depeud upon the preliminary ques
tion whether the loavtugof the transaction un
i fluished wis neecasury, or whether it was un
necessary and therefore voluutary. If it was
necessary, Groat Britain, as we suppose, must
j waive the defect, and tbo const q-ieut failure of
the judicial remedy. Ou the other hand, it is
; nut aecn how the Un.tcd States can insist up
? on her waiver of that judioial remedy, if the
! defect of tbe capture resulted from an act of
I Capt. Wilkes, wbioh would be a fault on their
I own side.
V0L.35. NO. 2.
Capt, Wilkes has presented to this Govern
ment bis reasons for releasing tbe Trent. I
forbore to seize her," he say*, *'in eoasf<juenoe
of my being o reduced inoffiiers and crew,
and the derangement it would cause innocent
persons, there being a large number of passen
gers who would have been put to groat loss
and insourenienoo, a* well as disappointment,
frntn the interruption it would have caused
them in not bring able to join the steamer from
St. Thomas to Europe. 1 therefore concluded
to sacrifice the interests of my officers and
crew in the prize, aud onffered fcer to proceed
after the detention necessary to effect the rrans-
Icr of tfcosS Commissioners, considering I had
obtrifted the important end I bad in view, and
which affected the interests of our country aud
interrupted the aetioa of that of the Confed
erates.
I shall consider Erst, bow these reasons
Ought to affect the action cf this Government;
nd, secondly, how they ought- to be expeated
to affect the action of Great Britain. '
1 iic reasons arc satisfactory to this Govern*
meet, so iar as Captain ilkrs is concerned.
1: could not desire that ihe San Jaciulo, her
officers and crew, should bo exposed to danger
and lo?s by weakening their number to detach
a priz.• crew to go on burl the Trent. Still
lea could it disavow tbe bum.ne motive of
preventing itic mvcuieooea, losses and perhaps
disasters, to the several hundred innocent pas*
seogers found ou board the p-iza vessel. Not
couid this Government p'roeive any ground
tor questioning tho fact that these, reasons,
though apptrently congruous, did operate in'
.he uiiud of Capt. \V ilset* &c 4 determine him
to release the Trent, iluajm notions gener
ally pioceed upon mingled, aud conflicting
motives, He sometimes measured the saeriS,
ees wbieh this decision would cost. It mani
festly, however, din not occur t him that be
yond tbe sacrifice of the private inteieste {is
he call? them) of his officers and crew, there
inigat also possibly bo a siorifice even of the
obiet and public object of his capturo— name*
ly, the right of his Government to the custody
ud disposition of the captured persons. This
govern me njtonmit censure him for bis over
sight. It colfosaes that the whole subject
came unfofseeO upon tbe Government as doubt- !
less it did upon bitn. Its present convictions ■
on the point in question are the remit of de
liberate examination and deduction now m .de,
an d not of any impressions previously form
ed.
Nevertheless, the question now is, not wheth
er Capt. Wilkes is j i-JtiScd to bis government
in what ho did, but what is the present view
of the Government as to the effect of whit be
has done. Assuming now, for argument's sake
ooiy,that the release of the Trent, if volun
tary, involved a waiver of tbe claim of the
government to hold the enptured persons, the
United States could in that easo have no hesi
tation iu saying that the act which has thus
already been approved by tbe government mu*t
be allowed to draw its legal consequence after
it. his of tho very nature of a gift or a
charity that the giver cannot, after tbe x-r.
cise of his beaavoleaee is past, recall or modi*
fy its benefits.
Wo are thus brought directly to the question
whether we are entitled to regard the release
of the Trent as invclbotary, or whether wo
ore obliged to consider that it was voluntary.
C early she release would bare beeu iovolunta
ry had it been made solely opnj the first
ground assigned for it by Capt. Wtlkee, name
j iy, a want of u sufficient force to send the prtzo
vessel into port far adjudication. It ia'not the
duty of a captor to hazard bis own vessel in
order to secure a judicial exaniinauon to the
captured party. No large prize crew, boweva
er, is legally neeeesary, lor it is the duty of
tbe captured party to acquiesce and go wtlling-
Itngly before tbo tribunal to whose jurisdiction
it appeals. If tbe captured party indicate
purposes to employ mentis of resistance which
the captor oanoot with probable safety to him
self overcome ho may properly leave the ves
sel to go forward-, and neither she nor the
Stite she represents can afterwards justly ob
joct that the capture deprived her of the ju
dicial remedy to which she was entitled.
But the second reusou assigned by INptain
Wilkes for releasing the Trent diffeia from the
j first. At best, therefore, it must be held that
| (Jaj.t. W tikes, as be explains himself, acted
from combined seutimeuts of prudence and
generosity, and so that the release of the prize
vessel was not strictly necessary or iuvoiun
tary.
Secondly. How ought we expect those ex
planations by Gapt. Wilkes of liis reasons for
; leaving the osptare incomplete to affect the
action of tbe British Government ?
Tne observation upon this point which first
occurs is, that Upt. Wilkea' explanations were
not made to the authorities of tho captured
l vessels. If made known to them they might
j have approved and taken the release upon tbe
condition of wtiviug a judicial investigation of
tbo whole transaction, or they might have re
fused to accept the release upon that coodi
; tioo.
But the ease is not one with them, but with
the British Government. If wo claim that
Gio it Britain ought not to insisUitat a judicial
! triul has been lost because wo voluntarily re
leased tbe offending vessel out of ooHsideration
! for Iter innocent passeogora, 1 do tut see how
i she is to be bound to acquiesce n the dccUiou
, which was thus made by us without necessity
ou oar part, and without the koowLdgo ol
conditions or consent on her own. The ques
tion between Great Britain and oarselvta
would be a question not of right of law, but
ot favor to be conceded by her to us in return
for favors shown by ust to her, of tho vaiuo of
which favors on both sides we ourselves shall he
j the judge. Of eoursa the United States could
j have no thought of raising each a question in
, any oase.