ii
V
BY S. J. BOW.
CLEARFIELD, PA.. WEDNESDAY, MUAEY 8, 1862.
VOL. a-NO. 19.
11 ! ji is at r z il ji ilx 11 i ll ji Ti it i it ftr
. i nira f iiu; A' n n' ;n ni
1
THE MASON AND SLIDELL CASE.
Letters of the Engliihier nd Soc- Seward.
Below will be found the correspondence bo
tween theBritish Minister and Secretary Seward
from which it may be inerred that the difficulty
between this country and England are amicably
settled .
EarlBnaieilto Lord Lyons.
Fobeion Office, Nov. 30, 1861.
J"A Xori Lyons, K. C. B., 4rc, $c, fc.
My Zonf Intelligence of a very grave na
'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 Irom the letter of Commander
Williams, dated "Royal Mail Contract Packet
Trent, at Sea, November 9," that tho Trent
left ilavanna on the 7th instant, with her Ma
jesty's malls for England, having on board
numerous passengers. Commander Williams
states that shortly after noon on the 8th a
'steamer having the appearance of a man-of-war,
but not showing colors, was observed a
head. On nearing her at 1,15 P. M. she fired
around shdt from her pivot gnn across .the
bows of the Trent, and showed American col
ors. While the Trent was approaching her
slowly the American vessel discharged a shell
across the bows W tJie Trent, exploding half
a cable's length afeead. The Trent then stop
ped, aud art officer with a large armed guard ot
marines boarded her.' The officer demanded
a list of the passengers ; and, compliance with
this demand being reused, the" officer said he
had orders to arrest Messrs. Mason, Slidell,
Macfarlard and Eustis, and that he had sure
infoimafion of their being passengers in tho
Trent. While some parley was going on upon
'this matter Mr. Slidell stepped forward and
ttolfi the American officer that the four persons
ute oat named, were then standing before hun
The Commander of the Trent and Commander
Williams protested against the act of taking
ly iorce. out of the Trent these four passen
gers, then under tho protection of the British
flag. But the San Jacinto was at that time
only two hundred yards from the Trent, her
ship's company at quarters, her ports open,and
torupions out. Resistance was therefore out
of the question, and the four gentlemen before
named were forcibly taken out of the ship.
fi..lujrther demand was made that the Comman
'der-o"tiU3 Trent should proceed on board the
.San JacHfra, but he said he wonld not go un
'less forcibly compelled likewise, aud this de
mand was not insisted upon.
It thus appears that certain individuals have
Ibeen forcibly taken from on board a British
vessel, tlia.6b.yi of a neutral Power,while such
wessew was -pursuing a lawful and innocent
voyage an act of violence which was an af
front to the British flag and a violation of in
ternational law.
Her Majesty's Government, bearing in mind
the friendly relations whicn have long subsis
ted between Great Britain and the United
States, arc willing to believe that the United
States naval officer who committed the aggres
lion was not acting in compliarce 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. For the Government of the
United States must be fully aware that the
Uritish Government could not allow such an
affront to the national honor to pass without
full reparation, and Her Majesty's Government
are unwilling to believe that it could be the
deliberate intention of the Government of the
United States unnecessarily to force into dis
cussion,between the two Governments, a ques
tion of so grave a character, and with regard
to which the whole British nation would be
sure to entertain such unanimity of feeling.
Her Majesty's Government, therefore, trust
that when this matter shall have been brought
under the consideration of the Government ot
the United States that Government will, of
its own accord, offer to the British Govern
ment such redress as alone could satisfy the
British nation, namely, the liberation of the
tour gentlemen 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.
Should these terms not be offered by Mr.
Seward you will propose them to him.
You are at liberty to read this dispatch to
the Secretary of State, and, il he shall desire
it tou will give him a copy of it.
Iam,&c, Russell.
Sir. Seward to Lord Lyons.
Department of State, I
Washington, Dec. 26, 1861. f
The Itisht Honorable Lord Lyons, fc., c., J-c. ;
My Lord Earl Russell's despatch of Novem
ber the 30th, a copy of which you have left
with me at my request, is of the following ef
fect, namely :
That a letter of Commander Williams.dated
Royal Mail Contract Packet boat Trent, at
ea, November 0th, states that that vessel lelt
Havana on the 7th of November, with Her
Majesty's mails for England, having on board
numerous passengers. Shortly after noon, on
the 8th of November, the United States was
steamer San Jaciuto.Captaia Wilkes,not show
ing colors, was observed ahead. That steam
er, on being neared by the Trent, at one o'
clock filteen minutes In the afternoon, fired a
round shot from a pivot gun across her bows,
and showed American colors. While the
Trent was approaching slowly towards the San
i acinto she discharged a shell acrous the Trent's
which exploded at hair a cable's length
wore her. The Trent then stopped, and an
officer with a large armed guard of marines
Warded her. The officer said he had orders
to arrest Messrs. Mason, Slidell, Macfarland
ana Eustis, and had sure information that they
passengers in the Trent. - While some
Pvley was going on upon this matter Mr. Sli
8tePped forward and said to the American
fficer that the four persons he had named
ere standing before him. The Commander
the Treut and Commander Williams protest
"gainst the act, of taking those four pas
angers out of the Trent, they then being un
"'Mbe protection of the British flag. But
'"8 San Jacinto was at this time only two hun
dred yards distant,' her ship's oompany at
quarters, her ports opeo and tompions oat,
nd so resistance was out of the question.
Joe four persons before named were then
rcibly taken ont of the ship. A further de
mand was made that the Commander of the
: orent should proceed on board the San Jacin-
but no said he would not go unless forcibly
"mpslltd likewise, and this demand, was not
-listed, upon,.
Upon this, statement Earl Russell remarks
that it thus appears that certain individuals
have been forcibly taken 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 interna
tional law.
Earl Russell next' says that Her Majesty's
Government, bearing in mind the friendly re
lations which have long existed between Great
Uritam 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 author
zed, hegreatly misunderstood the instructions
which he had received.
Earl Russell argues that the United States
must be fully aware that the British Govern
ment could not allow such an affront to the
national honor to pass without full reparation,
and they are willing to believe that it could
not be the deliberate intention of the Govern
ment of the United States unnecessarily to
force into discussion between the two Govern
ments 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 tho statement
and the argument which I have thus recited,
closes with saying that Her Majesty's Govern
ment trusts that when this matter shall have
been brought under the consideration of the
United States it will, of its own accord, oiler
to the British Government such redress as
alone could satisfy 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 tome, 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 con
jectured, what it is now my duty to state, that
C-ipt. 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 on 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
had no purpose, but even no thought of forc
ing into discussion the question which has a
risen.or any 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
s signal.
So also we learn that the Trent was not ap
proaching 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 inlormed also that the boarding offi
cer(Lieutenant Fairfax)did not board ttie Trent
with a large armed guard, but he left his ma
rines in his boat when he entered the Treut.
lie states his instructions from Capt. Wilkes
to search for the tour persons named, in a re
spectful 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 aru informed, did not em
ploy absolute force in transferring the passen
gers, but he used just so much as was neces
sary to satisfy the parties concerned that re
fusal or resistance would be unavailing.
So, also, we are informed that the Captain
of tho Trent was not at anv time or in any
way required to go on board the San Jacinto.
These modifications ot the case as present
by Commander Williams are based upon our
official reports.
I have now to remind your Lordship of
some facts which doubtlessly were omitted by
Earl Russell, with the very proper and becom
ing motive of allowing them to be brought in
to the case, on the part of the United States,
in the way most satisfactory to this Govern
ment. These facts are that at the time the
transaction eccured an insurrection was exist
ing in the United States which this Govern
ment was engaged in suppressing by the em
ployment of land and naval forces ; that in re
gard to this domestic strife the United States
considered Ureal iiritain as a irienaiy rower,
while she had assumed for herself the attitude
of a neutral : and that Spain was considered
in the same light, and bad 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 declarations by the
Congress of Paris in 1856, namely that the
neutral or friendly nag 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 Mag. These excep
tions of contraband from favor where a nega
tive acceptance by the parties of the rule
hitherto every where recognized as a part of the
law of cations,that whatever is contraband is lia
ble 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. It was well known at Havana
when these parties embarked in the Trent
that James M. Mason was proceeding to bug
land in the affected character of a Minister
Plenipotentiary to the Court of St. James, un
der a pretended commission from Jefferson
Davis, who had assumed to be President of
the insurrectionary party in the United btates,
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 mis
sion. The fact that these persons had assum
ed such characters has been since avowed by
the 6ame Jefferson Davis in a pretended, mes
sage to an nnlawful and insurrectionary Con
gress. It was we think, rightly presumed
mat inese Ministers bore credentials and in
structions, and such papers are in the lav
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 em
isaries ot tbe insurrection in England. Al
though it is not essential, yet it is proper to
siaie, as l do also upon information and belief,
mat tne owner and agent, and all the officers
oi tne i rent, Including the Commander Wit
liams, had knowledge of the assumed ch trac-
teis and purposes of the persons before named,
wnen tney embarked on that vessel.
iTour lordship will now preceive that tbe
cases before us, instead of presenting a merely
nagrant act of violence on the part of Capt
n ilkes, as might well be inferred from the
incomplete statement of it that went up to
the British Government, was undertaken as i
simple, legal, customary and beligerent pro
ceeding by Capt. Wilkes to arrest and capture
a neutral vessel engaged In carrying contra
band of war for the use and benefit of tbe in
surgents. . - -
The question before us is whether this
proceeding was authorized by and conducted
according to the law ot nations. It involves
tbe following inquiries:
1st. Were tbe persons named and .their
supposed despatches contraband of war ?
2d. Might Capt. .Wilkes lawfully stop and
search the Trent lor these contraband persons
and despatches 7
3d. Did he exercise the right in a lawful
and proper manner 7
4th. Having found tbe contraband persons
on board and In presumed possession of the
contraband despatches, had he a right to cap
ture the persons 1 '
5th. Did he exercise that rieht of capture
in the manner allowed and recognized by the
law of nations 1
If all these inquiries shall be resolved in
the affirmative the British Goterutuent will
have no claim for reparation.
I address myself to the first inquiry, namely,
were the lour persons mentioned, and their
supposed dispatches, contraband 7
Maritime law so generally deals, as its profes
sois 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 contra
band, 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 ail his resources, and to hinder
him from sending ministers to solicit assis
tance. And Sir William Scott says you may
step the ambassador of your enemy on bis pas
sage. Dispatches are not less clearly contra
band, and the bearers or couriers who under
take th carry them fall under the same con
demnation. A subtlety might be raised whether pro
tended ministers of an 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, tbe
spirit ot the law. Sir William Scott, speak
ing of civil magistrates who were arrested and
detained as coutraband, says:
'It appears to me on principle to be but
reasonable that when it is of sufficient impor
tance to the enemy that such persons shall be
sent out on the public service at the public
expense, it should afford equal ground of for
feiture against the vessel that may be let out
for a purpose so intimately connected with
the hostile operations."
I trust that 1 have shown that the fonr per
sons who were taken from the Trent by Capt.
Wilkes, and their despatches, were contraband
of war.
The second inquiry is whether Capt. Wilkes
had a right by the law of nations to detain and
search the Trent 7
The Trent, though she carried mails, was a
contractor merchant vessel a common carrinr
for hire. Maritime law knowsonly three classes
of vessels vessels of war, revenue vessels, and
merchant vessels. TheTrent falls within the lat
ter class. Whatever disputes have existed con
cerning 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 contrabands 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 document
ed 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 maratime law : that tbe
circumstances that the Treat was proceeding
from a neutral port to another neutral port
does not modify the right of the belligerent
captor.
The third question is whether Capt. 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 adopt
ed by the British Government, 1 think it must
have already passed away before tbe modifica
tions of that statement which I have already
submitted.
I proceed to tbe fourth inquiry, namely :
Having found tbe suspected contraband of
war on board the Trent, bad Capt. Wilkes a
right to capture tbe same ?
Such a capture is the chief, if not the only
recognized object of a visitation and search.
The principle of tbe law is that a belligerent
exposed to danger may prevent tho contraband
person or thing from applying themselves or
being applied to the hostile use or purpose de
signed. Tbe law is so very liberal in this re
spect that when tbe contraband is found on
board a neutral vessel, not only is the contra
band forfeited, bntthe vessel, which is the ve
hicle of its passage or transportation, being
tainted, also becomes contraband, and is sub
ject to capture and confiscation.
Only tbe fifth question remains, namely :
Did Capt. Wilkes exercise the right of captur
ing tbe contraband in conformity with the law
of nations 7
It is just here that tbe difficulties of the case
begin. What is the manner which the law of
nations prescribes for disposing ef the contra
band when you have fonnd and seized it on
board of the neutral vessel? The answer
would be easily found if tbe question were what
yon shall do with the contraband vessel. Yon
must take or send her Into a convenient port,
and subject her to a judicial prosecution there
in adrairaliy, which will try and decide the
questions of belligerency, neutrality, contra
nana and capture. So, again, you would
promptly find the same answer il the question
were, What is the manner of proceeding pre
scribed by tbe law of nations in regard to the
contraband if it be property or things of mate
rial or pecuniary value 1
But the question here concerns the mode of
procedure in regard, not to the vessel that was
carrying the contraband, nor yet to contraband
inmgs wtiicn worked the forfeiture of the ves
sel, but to contraband persons.
The books of law are dumb. Yet the ques
lion is as important as it is difficult. First,
the belligerent coptor has a right to prevent
iue contraband otticer, soldier, sailor, minis
ter, or courier from proceeding in his unlaw
ful voyage and reaching tbe destined scene of
his injurious service. But on the other hand,
me person captured'may be innocent that be
may not be contiaband. He, therefore, has a
right to a fair trial of the accusation;against
him. The neutral State has taken him under
its flag, is bound to protect him if be is not
contraband, and is therefore entitled to be
satisfied upon that important Question. The
faith of that State is pledged to his salety, if
innocent, as its justice is pledged to his sur
renderithe is really contraband. Here are
conflicting claims, involving personal liberty,
life, honor, and duty. Here are conflicting
national claims, involving welfare, safety, hon
or and empire. They require a tribunal and
a trial. The captors and the captured are
equals ; the neutral and thn belligerent State
are equals. '
While the law authorities were found silent
it was suggested at an early dav by this Gov
ernment that you should take the captured
persons into a convenient port and institute
judicial proceedings there to try the contro
versy. But only courts of admiralty have juris
diction in maratime cases, and these courts
hare formulas to try only claims to contra
band chatties, but no one to try claims con
cerning contraband persons. Tbe courts can
entertain no proceedings and render no judg
ment in favor of or against4the alleged coutra
band men.
It was replied all this is true ; but yon can
reach in those courts a decision which will
have the moral weight of a judicial one by a
circuitous proceeding.' Convey tbe suspected
men, together with the suspected vessel, inte
port, and try there the question whether the
vessel is contraband. Yon can prove it to be
so by proving the suspected men to be contra
band, and tbe court must then detetmine the
vessel to be contraband. .If the men are not
contraband the vessel will escape condemna
tion. Still there is no judgmont for or against
the captured persons. But it was assumed
that there would result from tbe determination
of the court concerning the vessel a legal cer
tainty 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 placo
of tbe paramount pnblie one, and possibly it
may make the fortunes, tbe safety, or tbe ex
istence 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 capture of the
vessel is rendered, it really concludes noth
ing, and binds neither the belligerent State
nor the neutral upon the great question of tbe
disposition to be made of tbe captured contra
band persons. That question is still to be re
ally determined, if at all. by diplomatic ar
rangement or by war.
One may well express bis 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 mu
nicipal law, especially in the system which ex
ists in the greater portions ot Great Britain
and the United States. Tbe 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 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 charac
ters of contraband persons, no other form than
the illogical and circuitous one thus described
exists, uor has any other yet been suggested.
Practically, therefore, the choice is between
that judicial remedy or no judicial remedy
whatever.
If there be no judicial remedy, the result is
that the question must be determined by the
captor himself, on the deck ot tbe prize ves
sel. Very grave objections arise against such
a course. The captor is armed, the neutral is
unarmed. The captor is interested, prejudic
ed, and perhaps violent ; the neutral, if truly
neutral, is disinterested, subdued, and help
less. 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 tbe
justice, magnanimity, or weakness of the State
in whose behalf and by whose authority the
capture was made. Out of these disputes re
prisals and wars necessarily arise, and these
are so frequent atd destructive that it may
well be doubted whether tbis form of remedy
is not a greater social evil than all that conld
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 tbe capture unreason
ably refuse to bear the oomplaint of the neu
tral or to redress it 7 In that oase, 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 gen
eral practice, better to follow it than to adopt
the summary one of leaving the decision with
the captor, and relying upon diplomatic de
bates to review bis decision. Practically, it
Is a question of choice between law, with its
imperfections and delays, and war, mith its
evils and desolations. Nor is it ever to be for
gotten that neutrality, honestly and justly
preserved, isfalways tbe harbinger of peace,
and therefore, is the common interest of na
tions, which is only saying that it is tbe inter
est of humanity itself.
At tbe same time it is not to be deoiedhat
it may sometimes happen that the judicial
remedy will become impossible, as by ship
wreck of the prize vessel, or other circumstan
ces 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 the right to dis
pose of them, if they are really contraband, so
ag to defeat their unlawful purposes, cannot
reasonably be denied. What rule shall be ap
plied in such a case 1 Clearly, the captor
ought to be required to show that the failure
of the judicial remedy results from circum
stances beyond bis control, and without his
fault. Otherwise he would be allowed to de
rive advantage from a wrongful act of bis own.
In tbe present case Capt. Wilkes, after cap
turing the contraband persons and making
prize of the Trent in what seems to us a per
fectly lawful manner, instead of sending her
into port, released her from the capture, and
permitted her to proceed with her whole cargo
on her voyage. He thus effectually prevented
the judicifil examination which otherwise
might have occurred.
If now, the capture of the contraband per
sons and the capture, of the contraband vessel
are to be regarded, not as two separate or dis
tinct 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 abandoned. Whether tbe United
States have a right to retain the chief public
benefits of it, namely the custody of the cap
tured persons on proving them to be contra
band, will depend upon tbe preliminary ques
tion whether the leaving of the transaction
unfinished was nececsary, or whether it was
unnecessary and therefore voluntary. If it
was necessary, Great Britain, as we suppose,
must 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 Capt. Wilkes, which would be a fault
on their own side.
Capt. Wilkes has presented to this Govern
ment his reasons for releasing the Trent. 'I
forbore to seize her," be says, "ic conse
quence of my being so reduced in officers
" and crew, and the derangement it wonld
" cause innocent persons, there being a large
number of passengers who would bave 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 tho transfer of
" those Commissioners, considering I bad ob
" tained the important end I had in view, and
which affected the interests of our country
and interrupted the action of that of tbe
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 auect tne action of ureal Britain.
The reasons are satisfactory to this Govern
ment, so far as Captain Wilkes is concerned.
It could not desire that tbe San Jacinto, her
officers and crew, should be exposed to danger
ana loss by weakning their number to detach
a prize crew to go on board the Trent. Still
less could it disavow the hnmane motive of
preventing inconveniences,losscs,and perhaps
disasters, to the several hundred innocent
passengers found on board tbe prize vessel.
Nor could tbis Government perceive any
ground for questioning the fact that these rea
sons, though apparently congruous, did operate
in the mind of Captain V ilkes and determine
him to release the Trent. Human actions
generally proceed upon mingled, and some
times conflicting motives. He measured the
sacrifices which this decision would cost. It
manifestly, however, did not occur to him
that beyond tbe sacrifice of the private inter
ests (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 h:s Government to the
custody and disposition of the captured per
sons. This government cannot censure him
for this oversight. It confesses that the whole
subject came unforseen upon the Government,
as doubtless it did upon him. Its present
convictions on the point in question are the
result of deliberate examination and deduc
tion now made, and not of any impressions
previously formed.
2 evertheless.the question now is,not wheth
er Capt. Wilkes is justified to his government
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 bold 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 consequence
after it. It is of the very nature of a gift or
a charity that the giver cannot, after the exer
cise of his benevolence is past,i ecall 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 wo
are obliged to consider that it was voluntary.
Clearly the release would have been involun
tary bad it been made solely upon the first
ground assigned for it by Capt. Wilkes.name-
ly, a want of a sufficient force to send the
prize vessel into port for adjudication. It is
not tbe duty of a captor to hazard bis own
vessel in order ta secure a Judicial examina
tion to the captured party. No large prise
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. It tbe captured party
indicate purposes to employ means of rests-1
tance wbioh the captor oannoi with probable
safety to himself overcome, be may properly
eave the vessel to go forward : and neither
she nor tbe State she represents can ever after
wards justly object that the capture deprived
her of the judioial remedy to which she was
entitled.
But the seoond reason assigned by Captain
Wilkes for releasing the Trent differs from the
first. At best, therefore, it must be held
that Capt. 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 fteoesaary ox in
voluntary. .-. , , . r .
Secondly. -How ought we to expect these
explanations by Capt. Wilkes of bis reasons
for leaving the capture incomplete to effect
the action ot the British Government 7
Tbe observation upon this point which first
occurs is, that Capt. Wilkes explanations
were not made to the authorities of the cap
tured vessel. If made known to them they
might have approved and taken tho release,
upon the condition of waiving a judicial d
vestigation of the whole transaction, or they
might have reiused to accept the release upon
that condition.
But tbe case is not one 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 re
leased. the offending vessel out ot considera
tion for her innocent passengers, I do not see
how she is to be bound to acquiesce in the de
cision which was thus made by us without
necessity on our part, and withoat the knowl
edge of conditions or consent on her own;
Tbe question betweeu Great Britain and our
selves thus stated would be a question not of
right and of law, bnt or favor to be cenceded '
by her to ns in return for favors shown by us
to her, of the value of which favors on boti
sides we ourselves shall be the judge. Of
course the United States, could have no"
thought of raising such a question in any case.
I trust that 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 Govern
ment has neither meditated, nor practiced, nor
approved any deliberate wronc in the transi
tion 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 estab- '
lisbed, and probably by tbe several parties con--cerned
either imperfectly understood or en
tirely unknown. For this error the British '
Government has a right to expect the same '
reparation that we as an independent State,
should expect from Gruat Britain or from any
other friendly nation in a similar case.
1 bave not been unaware that, in examining '
this question, 1 have fallen into an argument '
for what seems to be tbe British side of 'it a-'
gainst my own country. But I am relieved !
from all embarrassments on that subject. I'
had hardly fallen into that line of argu
ment, when I discovered that 1 was really de
fending and maintaining, not an exclusively'
British interest, but an old honored and cher
ished American cause, not upon British' an-'
thorities, but upon principles that constitute a '
large portion ol the distinctive policy by which
the United States have developed the resour
ces of a continent, and thus becoming a con
siderable maritime power.have won the respect '
and confidence of many nations. Those prin
ciples were laid down for us in 1801, by James
Madison, when Secretary of State in the ad
ministration of Thomas Jefferson, in instruc
tions, given to James Monroe, our Minister to
England. Although the case before him con
cerned a description of persons different from
tbose whet are incidently the subjects of the
present discussion, the ground assumed then
was the same 1 now occupy, and the arguments
by which he sustained himself upon it have been
an inspiration to me in preparing this reply.
"Whenever," be says, "property found in a
neutral vessel is supposed to be liable on any
greund to capture or condemnation, the rule in
all cases is, that tbe question shall not be deci
ded by the captor, but be carried before a legal
tribunal, where a regular trial may be had, and
whete the captor himself is liable to damages
for an abuse of power. Can it be reasonable
then, or just, that a belligerent commander
who is thus restricted,and thus responsible fn'a
case of mere property of trivial amount, should
be permitted,without recurring to any tribunal
whatever,to examine tbe crew of a neutral ves
sel, to decide the important question of their
respective allegiances, and to carry that decis
ion into execution by forcing every individual
he may choose into a service abhorcnt to bis
feelings, cutting him off from bis mostlender
connections, exposing his mind and bis person
to tbe most humiliating discipline,' and his
life itself to the greatest danger Reason,
justice, and humanity unite in protesting a
gainst so extravagant a proceeding."
If I decide this case in favor of luy own Gov
ernment, I must disavow its most cherished
principle, and reverse and forever abandon its
essential policy. The country cannot afford
tbe 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 jus
tice of the claim preSsented to tis In this re
spect upon its merits.- We are asked to do to
tbe 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 Govern
ment, since is first organization, has never
used more guarded language in a similar case.
In coming to my conclusion I have not for
gotton that, if tbe safety of tbis Union requir
ed the detention ot the enptured persons, it
would be the right and duty of this Govern
ment to detain tbem. Bat the effectual check
and wanting proportions of the existing insur
rection, as well as tbe comparative unimport
ance 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- sur
rendered for any purpose into tbe keeping of a
foreign State. Only the captnred persons
however, or others who are interested in them,
could justly raise a question on that ground.
Nor have I been tempted at a!! by sugges
tions that cases might be found in history
where Great Britain refused to yield to other
nations, and even to ourselves, claims like that
which is now before us. Tbose cases occur
red when Great Britain, as well as tbe United
States was then tbe home of generations which,
with all their peculiar interests and passions,
have passed away. She conld in no way so
efieotually disavow any such injury as we think
she does by assuming now as her own tbe
gronnd upon which we then stood. It wonld
tell little for our own claims to tbe character
of a just and magnanimous people if we should
so far consent to be guided by the law of re
taliation as to lift up, buried injuries from their
graves to oppose agaiost what national consis
tency and tbe national conscience compel us
to regard as a claim intrinsically right.
Putting behind me all suggestions of this
kind, X preier to express my satisfaction that
by tbe adjustment ot ' the present case upon
prlnciplesjconfessodly American, and yet as I
trust, mutually satisfactory to both of the ns-
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