IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I l^ljil |25 2f Bi ■■■ u 14.0 IL25 yg 1.4 ■ 1.8 1,6 •-xsca y Pholpgraphic Sdences Corporation 23 WIST MA!»> ^TMIT WllSTCS,fl.Y. I4SM (/I«)t73-4S03 ^ ;\ ^ 4" CIHM/ICMH CIHM/ICI\/IH Microfiche Collection de Series. microfiches. Canadian Institute for Historical Microreproductions / institut Canadian da microraproductions historiquas ©1984 Technical and Bibliographic Notaa/Notas tachniquaa at bibliographSquaa Tha Inatituta haa attamptad to obtain tha baat original copy availabia for filming. Faaturaa of thia copy which may ba l>ibliographically unlqua. which may alter any of tha imagaa in tha raproduction. or which may aignifieantly changa tha uauai mathod of filming, ara chaclcaJ balow. □ Colourad covara/ Couvartura da coulaur r~n Covara damagad/ D D D D n/ Couvartura andommagAa Covara raatorad and/or laminatad/ Couvartura raataurta at/ou pailiculAa I I Covar titia misaing/ La titra da couvartura manqua I I Colourad mapa/ Cartaa gtegraphiquas en coulaur Colourad inic (i.a. othar than blua or blacic)/ Encra d* coulaur (i.a. autra qua biaua ou noira) I I Colourad plataa and/or illuatrationa/ Planchaa at/ou illuatrationa mn coulaur Bound with othar matarial/ RaliA avac d'autraa documanta Fyj Tight binding may causa shadows or distortion along intarior margin/ La re liura sarrAe paut causar da I'ombra ou da la diatortion la long da la marga intiriaura Blank laavas addad during rastoration may appaar within tha taxt. Whanavar possibla. thasa hava baan omittad from filming/ II sa paut qua cartainas pagaa blanches ajouttes lors d'une rastaurat>on apparaiaaant dana la taxta, mala, loraqua cala Atait possibla. cas pagas n'ont pas AtA filmAes. L'Institut a microfilmA la maillaur axamplaira qu'il lui a it* poaaibia da sa procurer. L«s details da cat axamplaira qui sont paut-Atra uniquas du point da vua bibliographiqua, qui pauvcnt modifier una image reproduite, ou qui peuvent exiger une modification dans la m^thoda normale da filmage sont indiquAs ci-dessous. I I Coloured pagaa/ D Pagaa da cculeur Pages damaged/ Pages endommag6es Psges restored and/oi Pages restaurias at/ou pallicultes Pages discoloured, stained or foxet Pages dAcolortes, tachetAes ou piqu6es Pages detached/ Pages d^tachies Showthroughy Transparence Quality of prir Qualit^ in^gaia da I'lmprassion Includes supplementary materli Comprend du materiel suppMmentaire Only edition available/ Seule Mition disponible I — I Pages damaged/ r~p\ Pages restored and/or laminated/ P'T] Pages discoloured, stained or foxed/ I I Pages detached/ r~7| Showthrough/ I I Quality of print varies/ I I Includes supplementary material/ rn Only edition available/ Pages wholly or partially obscured by errata slips, tissues, etc., have bean refilmed tc ensure the best possible image/ Lea pagaa totalement ou partiellement obscurcies par un feuillet d'errata, une pelure, etc.. ont At4 filmtes A nouveau de fa^on A obtenir la meilleure image possible. Additional comments:/ Commentaires suppitmantaires: Title pegs it a photoreproduetion. Thia item is filmed at the reduction ratio checked lielow/ Ce document est film* au taux de reduction indiquA ci-deasous. 10X 14X 18X 22X 26X 30X V 12X 16X aox a4x 28X 32X TIm copy fllm«d h«ra has b««n r«produc«d thanks tu th« ganarosity of: Library of tha Public Archivas of Canada L'axampiaira f iimA f ut raproduit grica A la gAnArosit* da: La bibliothAqua das Arclilvas publiquat du Canada Tha imagas appaaring hara ara tha baat quality possibia considaring tha condition and lagibility of tha original copy and in Icaaping with tha filming contract spacif ications. Original copias in printad papar covara ara fllmad baginning with tha front covar and anding on tha last paga with a printad or illustratad impraS' sion, or tha back covar whan approprlata. All othar original copias ara fllmad baginning on tha first paga with a printad or illustratad impras- sion. and anding on tha last paga with a printad or illustratad imprassion. Tha last racordad frama on aach microficha shall contain tha symbol — «»■ (moaning "CON- TINUED"), or tha symbol y (moaning "END"), whichavar applias. Laa Imagas suivantas ont 4tA raproduitas avac la plus grand soln, compta tanu da la condition at da la nattatA da raxemplaira filmA, at an conformitA avar: las conditions du contrat da filmaga. Laa axamplalras originaux dont la couvartura an paplar aat ImprimAa sont fllmAs an commandant par la pramiar plat at an tarminant soit par la darnlAra paga qui comporta una amprainta d'imprassion ou d'illustration. soit par la sacond plat, salon la cas. Tous las autras axamplalras originaux sont fllmAs an commanpant par la pramlAra paga qui comporta una amprainta d'imprassion ou d'illustration at an tarminant par la darnlAra paga qui comporta una taiia amprainta. Un das symbolas sulvants apparaftra sur la darnlAra imaga da chaqua microficha, salon la cas: la symbols — ^ signifia "A SUIVRE". la symbols ▼ signifia "FIN" Maps, piatas, charts, ate. may ba fllmad at diffarant raduction ratios. Thosa too larga to ba antiraly includad in ona axposura ara fllmad baginning in tha uppar laft hand cornar. laft to right and top to bottom, as many framas as raquirad. Tha following diagrams illustrata tha mathod: Las cartas, planchas, tablaaux. ate. pauvant Atra fllmAs A das taux da rAductlon diff Arants. Lorsqua la documant ast trop grand pour Atra raproduit an un saui clichA, il ast filmA A partir da I'angla supArlaur gaucha. da gaucha A droita. at da haut an bas. an pranant la nombra d'imagas nAcassaira. Las diagrammas suivants illustrant la mAthoda. 1 2 3 1 2 3 4 5 6 M '*i A : t i J CORRESPONDENCE uiATiTB til -nn OMB or MESSllS. MASON AND SLIDELL »;;! ,i»< CORRESPONDENCE. J^lAjOU^ Mr. Seward to Mr. Adams, [E.\tract I Drpartmrnt of State, Washingtaa, Novemher 30, 1861. SlU: Your coiiridential note of the 15th of November, not marked as a des- patch, has been submitted to the President, and I hasten to reply to it in time for the Wednesday's mail. No minister ever spoke or acted more wisely m a crisis wliich excited deep public solicitude than you did on the occasion of the lord mayor's dinner. We are impressed very favorably by Lord Palmerston's conversation with you. You spoke the simile fcct wh.en you told him that the life of this insurrection is sus- tained by itir' hope;? of recognition in Great Britain and in France. It would perish in ninety days if those hopes should cease. I have never for a moment believed that such a recognition could take place without producing immediately a war between the United States and all the recognizing powers. I have not supposed it possible that the British government could fail to S(!e this ; and at the same time I have sincerely believed the British government must, in its in- most heart, be as averse from such a w ar as I know this government is. I am sure that this government has car(;fu)ly avoided giving any cause of offence or irritation to Great Britain. But it has seemed to me that the British govemmcmt has been inattentive to the currents that seemed to be bringing the two countries i/ito collision. * * * » # • I iiifiir from Lord Palmerston's remark that the British government is now awake to the importance of avcrtuig possible conflict, and disposed to confer and act with earnestness to that end. If so, we are disposed to meet them in the same spirit, as a nation chiefly of British lineage, sentiments, and sympathies — a civilized and humane nation — a Christian people. Sinc(! that conversation was held Captain Wilkes, in the steamer San Jacinto, has boarded a British colonial steamer and taken from her viock two insurgents who were proceeding to Europe on an errand of treason against their own coun- try. This is a new incident, unknown to and unforeseen, at least in its circum- stances, by Lord Palmerston. It is to be met and disposed of by the two gov- ernments, if possible, in the spirit to which I have adverted. Lord Lyons has prudently refrained from opening the subject to me, as, I presume, waiting instructions from home. We have done nothing on the subject to anticipate the discussion, and we have not furnished you with any explanations. We adhere to thr.t course now, because we think it more prudent that the ground taken by the British government should be first made known to us here, and that the discussion, if there must be one, shall be had here. It is proper, how- ever, that you should know one fact hi the case, without indicating that we attach much importance to it, namely, that, in the capture of Messrs. Mason and Slidell on board a British vessel, Captain Wilkes having acted without any instructions from the government, the subject is therefore free from the embar- rassment which might have resulted if the act had been specially directed by us. •> «9 '•■ K „*|#A , J. CORRESPONDENCE. ^>^o^ I am» sir, your obedient Horvunt, -Charles Fra.ncis Adams, Esq., J^r., ^r., ipc. [wpedi WILLIAM IL SEWAlll). I t t I i "^ I I Earl Russell to Lord Li/ons. FoRinoN Office, Novemher 30, 1801. My Lord: Intelligence of a very grave nature has reached her Majci^ty's government. This intelligence Avas conveyed officially to the knowledge of the admiralty by Commander Williams, agent for mails on board the contract steamer Trent. It appears from the letter of Commander Williams, dated "Royal Mail Con- tract Packet Trent, at sea, November 9," that the Trent left Havana on the 7th instant, Avith her Majesty's mails for England, having on board nu- merous 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 ahead. On nearing her at ].!;> p. m. she fired a round shot from her pivot-gun across the bctws of the Trent, and showed American colors. While the Trent was ajjproaching her slowly the American vessel discliarged a shell across the bows of the Trent, exploding half a cabby's length ahead of her. The Trent then stopped, and an otficer with a large armed guard of ma- rines boarded her. The officer demanded a list of the passengers; and, com- pliance with this demand being refused, the officer said he had orders to arrest Messrs. Mason, Slidell, McFarland, and Eustis, and that he had sure information of their behig passengers in the Trent. Whih^ some parley was going on upcm this matter, Mr. Slidell stepped forward and told the American officer that the four persons he had named w(!re then standing before him. The commander of the Trent and Commander Williams protested against the act of taking by force out of the Trent these four passengers, then under the protection of the British flag. But thi' San Jacinto was at that time only two hundred yards from the Trent, h(;r ship's company at quarters, her ports open, end tompions out. llesistance Avas therefon; out of the question, and i)w. four gentlemen before named were forcibly taken out of the ship. A further demand was made that the commander of \\iv Trent should proceed on board the San Jacinto, but he said he would not go uidess forcibly compelled likewise, and this demand was not insisted upon. It thus appears that certain individuals have been forcibly taken from on board a British vessel, the ship of a neutral power, while such vessel was pursuing a lawful and innocent voyage — an act of violence which was an affront to the British flag and a violation of intematioual law. Her Majesty's govenmient, bearing in mind the friendly relations which have long subsisted between Great Britain and the United States, are willing to be- lieve that the United States naval officer Avho committed the aggression was not acting hi compliance with any authority from his government, or that if he con- ceived himself to be so authorized h(> gi'eatly misunderstood the instructions Avhich he had received. For the government of the United States must be fully awaie that the British government could not alloAv such an affront to the national honor to pass without tull reparation, and her Majesty's government are unwil- ling to believe that it could be the deliberate mteution of the government of the w in a friendly ;overnni((nt. readin}^ it to EWARD. r 30, 18(51. her Majci^ty's tho admiralty ;amer Trent, •al Mail Con- i Havana on on board nn- r noon on the lowinf; colors, nd shot from orican colors. *el discliarged iigth alujad of guard of ma- rs; and, com- •d(^rs to arrest re information ^oing on upon fficer that the !omman(ler of iking by force of the British irds from the iompions out. ;lemen before as made that acinto, but he demand was rom on board, as pursuing a affront to the s which have willing to be- ssion was not hat if ho con- ; instructions must be fully ;o the national nt are unwil- mmcnt of the CORRESPONDENCE. 8 T'^nitod States nnnocoss.nrily to force into discussion bctM'oen tho two govern- ments a (jnestion of so grave a character, and with regard to which the wludo 13ritish nation would be sure to entertain such nunniinity of feeling. Her Majesty's governmtnit, therefore, tnist that when this matter shall have been brcmglit under the consideration of the government of the United Htates that government will, of its own accord, offer to the British govennnent stu-h redress as alone could satisfy the British nation, nanielv, the liberation of the four 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 lias been committed. iShould these terms not be offered by Mr. Seward you will propose them to him. Yon arc at liberty to read this despatch to the Secretary of State, and, if he shall desire it, you will give him a copy of it. I am, ik^c, RUSSELL. The Lord Lyons, K. C. B., ^., S)V., Sfv. Mr. Seward to Lord Lyons. Depart.ment of State, Wanhington, Dccnnher 26, 1861. My Lord : Earl Russell's despatch of November the .30th, a copy of which you have left with me at my request, is of the following effect, namely : That a letter of Commander Williams, dated Royal Mail Contract Packet- boat Trent, at sea, November 9th, states that that vessel left Havana on the 7th of Novembei-, with her Majesty's mails for England, having on board numerous passengere. Shortly after noon, on the 8th of Novendair, the United States war steamer San Jacinto, Captain Wilkes, not showing colors, was observed ahead. 'J'hat steamer, on being neared by the Trent, at one tt'dock fifteen minutes in the afternoon, fin^d a round shot from a pivot-gnu across her bows, and showed American colors. While the Trent Avas approaching slowly towards the San Jacinto she discharged a shell across the Trent's bows, which exploded at half a cabhi's length before her. The Trent then stopped, and an officer with a large armed guard of marines boarded her. The officer said he had orders to arrest Messrs. Mason, Slidell, McFarland, and Eustis, and had sure information that they were passengers in the Trent. Whih; some parley Avas going on upon this matti'r, Mr. Slidell stepped forward and taid to the American officer that the four persons he had named w(!re standing before him. The commander of the Trent and Commander Williams protested against the act of taking those four passengers out of the Trent, they then being under the protection of the British flag. But the San Jacinto was at this time only two hundred yards distant, her ship's company at quarters, her ports open and tompions out, and so resistance was out of the question. The four persons before named were then forcibly taken out of the ship. A further demand was made that the com- mander of the Trent should proceed on board tl\e San Jacinto, but he said he would not go unless forcibly compelled likewise;, and this demand was not in- sisted upon. Upon this statement Earl Russell remarks chat it thus appears that certain individuals have been forcibly taken from 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 afl'nmt to the British flag and a violation of international law. Earl Russell next says that her Majesty's government, bearing in mind the 'I! 11 If I .f 4 COKRESPONDENCE. friondly relations which have loi>g subsittted hetwoen Groat Britain and the United StateH, an; willing to believe that the naval oflieer who committed this agf?re^«^^ion wan not actinj; in coniplinncc! with any authority from hirt fi;ovem- ment, or that, if he concc^ived hini!*elf to be »o authoriz((d, he greatly misunder- stood the iuBtructiouH which he had n^eivi'd. Earl llu»(*ell argues that the I'nited States must be fully aware that the British govenunent could not allow such an affront to the national honoi to pass without full rej)aration, and they are willing to beli(!ve that it could not l«-' the deliberat(! intention of the government of the United Htates unnece88ari;y to force into discussion between the two governments a question of so grave a char- acter, and with regard to which the wliole British nation would bo sure to ei ter- tain such unanimity of feeling. Earl llussell, resting upon the statement and the argument which I have thus recited, closes with saying that her Majesty's government trust that when thia matter shall have been brought under the consideration of the government of the United States, it will, of its own accord, offer to the British government such redress as alon(! could satisfy tlie 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 a[)ology for the aggression which has been conunitted. Earl Russell finally instructs you to propose those terms to me, if I should not first ofter them ou the part of the government. This despatch has been submitted to the President. The British government has rightly conjectured, what it is now my duty to state, that Captain Wilkes, in conceiving and executing the proceeding in ques- tion, acted upon his own suggestions of duty, Avithout any direction or instruc- tion, or even foreknowledge of it, on the part of this government. No direc- tions had bi'cn 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 have had no pur])ose, but even no thought, of forcing into discussion the ques- tion which has arisen, or any other which could affect in any way the sensibili- ties 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 h-arn that the Trent was not ajiproaching the San Jacinto slowly wlien the shell was fired across her bows, but, on the contrary, the Trent was, or seemed to be, movhig under a full head of steam, as if with a purpose to pass the San Jacinto. We are hiformed 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 nam(!d, in a respectful and courteous, though decided man- ner, 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 tlu; jiassengers, but Ik? used just so much as Avas necessary to satisfy the parties concerned that refusal or resistance jvvould be unavailing. So, also, we arc informed that the captain of the Trent was not at any time or in any Avay required to go on board the San Jacinto. These modifications of tlie case, as presented by Commander Williams, are based upon our official reports. I have now to remind your lordship of some facts which doubtlessly were m 'itaiu and the jiniiiittod tliii) n liirt govern- itly mirtundcr- vnro that the I IiOllOl to ]>UHA Id not l<' the inecc'8»an;y to ) grave a c 'lar- Hure to ei ter- ;h I have thus :hat when this ■rnment of the eminent such oration of the dt«hip, in order itable apology iially instructs on the part of iw my duty to eding in ques- ou or inntruc- it. No direc- 10 four persons sel, or on any The British ates not only *sion the ques- y the sensibili- her pivot-gun J been reported in a direction te as harmless Jacinto .slowly he Trent wac, urpose t<» pass irfax) did not his boat w hen ilkes to search decided man- ner list, which ibsolut(; force necessary to navailing. t at any time Williams, are ubtlessly were CORRESPONDENCE. 6 omitted by Karl TlnsnoU, with the very ])ropcr and boromiiig motive of allowing tlieni to be broiiglif into flic case, on tlio pjirt of the ruitcd HtatcK, in the way most satisfactory to this g(»vt'rnment. Tlirsc iaets are, tiiat at the time the transaction occnrrcd an insurrection was existing in the I'nitcd States which tiiis government was engngid in suppressing by the eni]>loynient of limil and n.ival forces; tluit in rega-d to this (lon)estic strife tlie I'nited States considered (Jreat Ibitain as a friendly power, while she had assupted for herself the attitude of a neutral; and that Spain was consirh-red in the same light, anil had assumed the same attitude as Ureat Ibitain. It had been settled by correspondence that the TInited States and Great Ibitain mutually recognized as applicable to this local strife these two artich-s of the dechiratirui made by the Congress of I'aris in IfSoO, namely, that the neutral or friendly Hag should cover enemy's goods not contraband of war, and that neutral goodn not contraband of war are not liable to cajdure under an enemy's flag. These exceptions of contraband from ftnor 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. IVIason and Vj. J. McFarland are citizens of the United States and residents of Virginia, flohn Slidell and (rcfirge Eustis are citizens of the United States and residents of Louisiana. It was well known at Havana when these parties endtarked in the 'J'rent that James M. Mason was proceeding to England in the affected character of a minister jdenipotentiary to the court of St. James, under a pretended commission from Jefferson Davis, who had assumed to be president of the insurrectionary party in tlu; United States, and Vj. J. JIcFarland was going with him in a like unreal i haracter of secretary of legation to the jn-e- tended mission. John Slidell, in siniilar circumstances, was going to I'aris as a j)retended minister to the Emiteror of the Erench, and (reorge Eustis w^as the chosen secretary of legatioii for that sinnilated mission. The fact that these per- sons had assume» profeHwtrn nay, In rnii, that irt with projierty, and ho weldom with ])erMonrt, that it rteemn a Htraining of the term con- traband to iipply it to them. Jbit perf^onn, an w«'ll art property, may heciune con- traband, nince the word meann broadly " contrary to prochunution, prohibited, illegal, nnlawful." All writers and Judgeri ](rononnce naval or military jn'rHonrt in the Ht-rvice of the enemy c(nitraband. Vattel wivrt war alhtwH uh to cnt oft' from an enemy all hirt roHonrccH, and to hinder him from sending niinititerrt to Kcdicit artrtirttance. And Sir William Scott says yon may stop the and)asrtador of vonr enemy on hirt passage. Despatches are not less clearly contraband, and the iicarera or couriers who undertake to carry them fall under the same condenmation. A subtlety might be raised whether pretended minist«'rs of a usurping power, ;iot recognized as legal by either thv belligerent or the n«>utral, could be held to be contraband. lUit it would disapjtear on being subjected to what is the truo test iu all case.s — namely, the spirit of the law. Sir William Scott, speaking of civil magistrates who are arrested and detained as contraband, says : " It appears to me on principle to be but reasonabh' that when it is of suffi- cient importance to the enemy that such persons shall be sent out on the public service at the public expense, it shoidd aft'ord e(|ual ground of forfeiture against the vessel that may be let out for a purpose so intimately connected with the hostile operations." 1 trust that I have shown that the four persons who were taken from the Trent by Ca])tain Wilkes, and their despatches, wer(> contraband of war. The second incjuiry is, whether (Japtain Wilkt-s had a right by the law of na- tions to detain and search the Trent. The Trent, thojigh she carried mails, was a contract or nu^rchant vessel — a common carrier for hire. ]\raritime law knows only three classes of vj'ssels — vessels of war, revenue vessels, and merchant vessels. The Trent falls within the latter class. Whatever disputes hav<' existed concerning a right of visita- tion or search in time of peace, none, it is supposed, has (ixistt.'d in modern times about the right of a belligerent in time of war t(t caj)ture contraband in neutral and even friendly merchant vessels, and of the right of visitation and search, iu order to determine whether they are neutral, and are documented as such accord- ing to the law of nations. 1 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 ((U(>stion 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 state- ment of it adoi)ted by the Britisii government, I think it must have already- passed away before the modifications of that statement which I have already sul)mitted. I [)roceed to the fourth inquiry, namely: Having found the susp(!cted contra- band of war on board he I'rent, had Captain Wilkes a right to capture the same ? Such a capture is the chief, if not the only recognii^ed, object of the ',)er- niitted visitation and search. The princij)!!' of the hnv is, that the belligerent exposed to danger may prevent the contraband persons or things from applying 4 (1 and rccog- ritisli {?()V(!rn- m iiu'iiliom-d, , that in with tlir U'rin con- ' hocomc coii- II, proliibitod, till' K»'rvir<> of an cncnty all •it artriirttunt't). enemy on Ids ■rtJ or couriers u'jdn}; iiower, dd lie held to at in th(? tnu! t, speaking of i : 1 it is of suffi- on the public ;eiture against .'cted with the ken from the )f war. the law of na- ant vessel — a ^ of verti^elrt — it falls within f^ht of visita- modern times ind in neutral md search, in 8 such accord- is regardtid tance that the port does not ght of search in the state- have already have already )ected contra- capture the et of the ',)er- he hellit^irent from applying CORRESPONDENCE. T flii'insclves or being applied to tlw Ixwtilr' n-^es or purposes designed. Tli" law is so \eiv lilx'ral in this respect tlwil wlien (ontniband is found on l»oard a neu- tral \(ssel, not only is the eonlraliand forfeited, but the v(!ssel which is the vcliicle III' its passage or transportation, Iteing tainted, also becomes contraband, and is Hilijccted to capture and coiiliscation. Only the fifth (piestion remains, namely: Did Captain Wilkes exercise the right of capturing tlie eonlraliand in conformity with tln^ law of nations ? ll is just here that the dilHculties of the case begin. What is the manner which the law of nations prescribi's for dispusing (»f the contraband when vou liiive fnnnd iind seized it '•! which will have the moral weight of a judicial one by a circuitous proccedir "*, Convey the suspected men, together with the suspected vessel, into port, and try tiieri' tla^ (juestif)n whether the vessel is contraband. You can prove it to be so by j)roving the suspected men to be contraband, and the court must then de- termine the vessel to be contraband. If the men are not contraband the vessel will escape condenmation. Still, there is no judgment for or against the cap- tured ptfrsons. But it was assumed that there would result from the determina- tion of the court concerning the vessel a legal certainty concerning the character of the men. This com-se of proceeding seemed open to many objections. It elevates the incidental inferior [irivate 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 accidents of a merely personal and pecuniary litiga- tion. JMoreover, Avheu the judgment of the prize court upon the lawfulness of 6^- 8 CORRESPC .'DENCE. % li ! i the capture of the vonsol is ronrlerofl, it really conchules nothing, and hinds neither th(> hellijrerent state nor the neutral Jipon tin; jyreat qut-htifoi of the dis- pot*ition to be made of the captured contraband jiernonH. That t{ue>»tion ia «till to be really determined, if at all, by diplomatic arranfjement or by war. One may well t'xpresn liiH sm-prise when told that the '"w of nationw has fui*- nifihed no more rea(*onable, urictical, and jierfcct mode than thin of determining questions of such grave import between sov<>r(Mgn powers. Th(^ regret w(» may teel on the occasion is nevertheless moditied by the reflection that the difticnlty is not altogether anomalous. Similar and ecpial de*iciut 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 bo confessed, however, that while all aggrieved nations demand, and all im])artial ones concede, tin? need of some fonn of judicial process in detennining the char- acters of contraband persons, no other form than the illogical and circuitous one thus described exisis, nor has any other yet been suggested. Practically, there- fore, the choice is between that judicial remedy or no judicial remedy whatever. If there be no judicial renu'dy, the result ic. that the question nmst be deter- mined by the captor himself, on the deck of the prize v<'S8el. Very grave objections arise against such a course. The captor is aimed, the neutral is unarmed. The cajttor is interested, ])r(judiced, and perhaps viohnit; the neutral, if truly neutral, is disinterested, subdued, and helj>h'ss. The tribunal is irrespon- sible, while its judgment is carried into mstant execution, IMie captured jrarty is compelled to submii, though bonnd by n<» legal, moral, or treaty obligation to acquiesce, lleparatidu is distant and problematical, and depends at last on the justice, magnanimity, or weakness of the stat(> in whose behalf and by whose authority th(> ca])tnre was made. Out of these disput(>9 reprisals and Avars neces- sarily ii"' 'ind these are so fre(|uent and destructive that it may well be doubted whether uus 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 for- ev(!r. lint carry the; case one step farther. What if rhe state that has made the capture unreasonably refuse to liear the conq>laint of the neutral or to redress it? In that case, the very act of capture would b»! an act of war — of war begun without notice, and possibly entirely without jirovocation. I think all unprejudiced minds will agree that, imperfect as the existing judi- cial remedy may be supposeii to be, it would be, as a g(MH>ral ])ractice, better to follow it than to adopt tlu* summary one of leaving the decision with tlic captor, and relying upon diplomatic debates to review his decision. J'ractically, it is a question of choice between law, Avith its imiierfections and delays, and war, with its evils and desolations. Nor is it evt-r to be forgott.-n that neiitrality, honestly and justly preserved, is always tlu' harbinger ot peace, and therefore is the com- mon interest of nations, which is onlv saving that it is the int(!rest of humanitv itself ^ - b J At the same time it is not to he denied that it may sometimes happ( n that the judicial remedy will bec«mi<' impossible, as by the slii])wreck of the pri/c vessel, orother circumstances which excuse tne ca])tor from sending or taking her into port fur confiscation. In siudi 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, cannot reasonably be denied. What rule shall be a])]ili(d in such a ease? Clearly, the captor ought to be re((uin(l to show that the failure of the judicial riMuedy nsults from eircumstances bevond his control, and withuni his fault. Otherwise, he Avould be allowed to derive advantage from a wrongful act of his own. Ill the present case, Captain Wilkes, after capturing the contraband persons 1 CORRESPONDENCE. 9 tif^, and binds 111 of tlui dia- i('t*tioii is "till war. tionn has fur- ' detcrr.iining 'pret wo may tho difficulty und in every 1 the fjrcater onal pr()j)erty tion tliat the real estate is It must be all impartial ling the char- I'irt'uitous one ■tically, thf^re- 'dy whatever, lut^t be deter- Very grave the neutral is ; tho neutral, al is irrespon- ipturcd jmrty obligation to It last on the iiid by whose d Aviuv* neecs- 11 be doubted could follow ibolisiied for- hat' made the to redress it? )f' war begun existing judi- tice, better to li the captor, tically, it is a lid war, with ity, honestly e is the com- of humanity pjienthat the ]iriz<' vessel, king her into le custody of mtraband, so What rule ' re(|uin(l to inct's luyoiid ed to derive land persons and making prize of the Trent in what seems to be a perfectly lawful manner, instead of sending her into jiort, released her from the capture, f.id jiermitted lif-r ti» proceed with her Avhole cargo upon lu.'r voyage. He thus eft'ectually i)re- veiited tlie judicial exiiniination which might otherwise have occurred. If. now, the capture of the contraband [lersons and the caj)ture of the contra- l)iud vessel are to b<^ regarded, not as two separate or distinct transactions under the law of nations, but as one transaction, one capture only, then it follows that the Cipture in this case was left ni'^nished, or was abandoned. Whether the United ^>tatos have a right to retain tl:e chief public benefits of it, namely, the custody of the captured persons on proving them to be contraband, M'ill depend U])oii the preliminary question whether the leaving of the transaction uniinished was necessary, or whether it was unnecessary, and therefore voluntary. If it was necessary, (Jreat Britain, as we suppose, must, of course, waive the defect, and the cimseqiuint failure of the judicial remedy. On the other hand, it is not seen how the I' nited (States can insist upon her waiver of that judicial remedy, if the defect of the capture resulted from an act of Captain W^ilkes, which wovdd be a fault on their own side. Captain Wilkes has presented to this government his reasons for releasing the IVent. " I forbore to seize her," he says, " in consequence of my being so re- duced ill officers and crew, and the derangement it would cause innocent persons, there being a large number of passengers who would have been put to gi'eat 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 interest of my officers and crew in the prize, and siiffired her to proceed after the detention necessary to effect the transfer of those commissioners, considering I had obtained the imiiortant end I had in vi(!W, aiul which aifected the interest of our country and interrujited the action of that of the contederates." I shall consifler, first, how these n^asons ought to affect the action of this goA.'rnmeni ; and secondly, how they ought to be expected to affect the action of CJreat IJiitain, The reasons are satisfactory to this government, so far as Captain Wilkes is concerned. It could not desire that the San Jacinto, her olhcers and crew, should be exposed to danger and loss by weakening their number io detach a prize crew to go on board the Trent. Still less could it disavow the humane motive of preventing inconveniences, losses, and perhajis disasters, to the several hundred innocent passengers found on board the prize vessel. Nor could this gov{!inmeiit perceive any ground for questioning the fact that these reasons, though apparently incongruous, did operate in the mind of Captain Wilkes and deteiinine him to release the Trent. Human actions generally proceed upon mingled, and sometimes coiiHicting motives. He measured the sacrifices Avliich tlii.» decision would cost. It manifestly, however, did not occur to him that be- yond the sacrifice of the private interests (as lie calls them) of his officers and cr^'w, tli(;re might also {lossibly be a sacrifice even of the chief and public object his cajitun;, namely, the right of his government to the custody and dispo- sition of the captured persons. This government cannot ctuisure him for this oversight. It confesses that the Avliole subject canu" unforeseen upon the govern- ment, as donbtless it did upon him. Its present convicticms on the point in question are the result of deliberate examinatiou and d'.'duction now made, and not of any imjiressions jireviously formed. Nerertlieiess, the question now is, not whethe'" Captain Wilkes is justified to his giiveiiinieiit in wiiat he did, but wliat is the present view of the government as to the effect of wiiat lie has done. Assuming now, for argument'): sake only, that the r 'eas(^ (»f the Trent, if voluiitaiy, involved a waiver of the claim of the go\('ninieiit to hold the cajitured persons, the United States could in that case have no hesitation iu saying that the act which has thus already been ap- 10 CORRESPONDENCE. provod by the govcrnmont muKt, b(! allowed to draw its lejijal coi'.scquouci' aftor it. It is of the very nature of a gift or a ciiarity tliat the giver cannot, after the exerciy(! of his benevolence is past, recall or modify its benerits. We arc thus brought directly to the cjuestiou whether we are entitled to re- gard tlie release of the Trent as involuntary, or whether wo are obliged to con- sider that it was voluntary. Clcarh the release would have been involuntary had it been made solely upon the first ground assigniul for it by Captain Wilkes, namely, a want of a sufficient force to send the prize vessel int' '^ort 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 Avillingly before the tribunal to Mhose jurisdiction it appeals. If the captured party indicate purposes to employ means of resistance which the captor cannot with probable safety to himself overcome, he may properly leave the vessel to go forw.ird ; and neither she nor the State she re{)reseuts can e\'er 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 diflers from the first. At best, therefore, it must be held that Captain Wilkes, as he explains himself, acted from combined sentiments of prudence and gene- rosity, 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 reasons for leaving the capture incomplete to affect the action of the British govenunent ? The observation upon this point which first occurs is, that Captain AVilkes's explanations were not made to the; authorities of the captured vessel. It made known to them, they might have aj>proved and taken the release upon the con- dition of waiving a judicial investigation of the whole transaction, or they might have refused to acce[)t 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 tor her innocent passengers, 1 do not see how she is to be bound to acquiesce in the decision Avhicli Avas thus made by us without necessity on oin* part, and without knowhulge of conditions or consent on her own. The (juestion between (ireat 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. Of course the United States could have no thought of raising such a question in any case. I truf^i that I have shown to the satisfaction of the British government, by a very snnple and natural statement of the facts, and analysis of the law applica- ble to them, that this government has neither meditated, nor practiced, nor ap- proved any deliberate wrong in the tninsaction to which they have called its attention ; and, on the contrary, that what has hajtpened has been snnply au inadvertency, consisting in a departure, by the naval otlicer, free from any wrongful motive, from a rule uiicertaiidy established, and jtrnbably by the se\ c- ral parties concerned either im^K'rfectly understood or entirely unknown. For this error the British government has a right to "xpect the same reparation that we, as an independent State, should exp(;ct from Great Britain or from any ttther friendly nation in a similar case. I have not been unaware that, in examining this (piestion, I have fallen into an argument for what seems to be the British side of it against my own e(»untry. But 1 am reli(.'ved from all embarrassment on that subject. 1 had hardly fallen into that line of argument when I discovered that 1 was really defending aud CORRESPONDENCE. 11 pquouco rtftor ciimiot, aftL'i* I, ntitlcd to re- jli}>('(l to con- involuntary by (!fH)taiu »t'\ int' 'vjrt iwn vcKHfl in o lai'};e [»rizc ;i

tain ^Vilkes, CO and gene- necessary or lin Wilkes of »t' the British tain AVilkes's el. It made ipon the con- >r they might nent. If we has h«'en lost ution for her iiiescc in tin; and without twceu (Jreut and of law, wn liy us to shall be the isiug such a nnient, hy a law ai»plica- iced, nor ap- ve called its 'n snnply ati ■e fnini any hy the se\('- wuowii. For laration that tni any other re fallen into •wn coinitry. hardly fallen fending uud maintaining, not an exclusively Britisli interest, but an old, honored, and cher- ished American cause, not u|)on British authorities, but upon principles that constitute a larger portion of tln^ distinctive policy by Avhich the United States have developed the resources of a continent, and thus becoming a considerable maritime jiower, have won the respect and confidence of many nations. These ])rinci)d('S 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 ]\I()in(M', our Minister to England. Although the case before him concerned a descri])tion of persons different from those who are incidentally the subjects of the present discussion, the ground he assumed then was the sime I noAV occupy, and the arguments bj' which he sustained himself upon it, have been an inspira- tion ff» me in preparing this reply. "Whenever," he says, ''property found in a neutral vessel is supposed to be liable on any ground to caj)ture and condemnation, the rule in all cases is, that the fjiiestion 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 r(?stricted, and thus responsible in a case of mere property of trivial amount, should be ])emiitted, without recurring to any tribunal what(!ver, to examine the crew of a neutral vessel, to decide the imi)ortMnt ({iK'Stion of their respective allegiances, and to carry that decision into execution by forcing every individual lit- may choose into a senice abhorrent to his feelings, cutting him off from his most tender connexions, exposing his mind and his person to the most hniniliating discipline, and his life itself to the great- est danger. Reason, justice and hvxmanity xxnite in pi'otesting against so extrav- agant a ])roceeding." If I decide this case iu favor of my own government, I must disavow its most cherished j)riiici]ilcs, and reverse and forever abanlon its essential policy. The country cannot afford the sacrifice. If I maintain those principles, and adhere to that policy, I must surrender tlu; case itself. It will be seen, therefore, that this gov(a-nnnnt could not deny the justice of the claim presented to us in this r»'S])ect upon its merits. W.- are asked to do to the British nation just what we have uhvays insi'red for any [uirj)0se into the keeping of a foreign State. Only the cajttured persons, however, or others Avho are interested in them, could justly raise a (juestion on that ground. Nor have 1 been temjited at all by suggestions that cases might be found in histniy Avliere rjre.tt Britain refused to yield to other nations, and cA'cn to our- selves, claims like that Avhich is now before us. Those cases occurred Avhen (Jreat Britain, as well as the I'nited States, Avas the liome of generations, Avhich, A\ ith all their ]teculiar interests and jiassions, liaA'e passed aAvay. She could in no other way so effectually disavow any such injury as aat think she does by assniniiig now as her own the ground npcni Avhich we then stood. It Avould tell little for our own claims to ihe character of a just and magnanimous ]ieo[de if wo should so far consent to be guided by the law of retaliation as to lift up buried 12 CORRESPONDENCE. injuriefi from their graves to oi)pose ngainHt what national oon! reflection, convinced it that it could not, luuler the circumstances, remain entirely silent. If, to our deep regret, the cabinet at Washington were disposed to approve the conduct of the connnander of the San Jacinto, it would be either by consi