Ꮇ Ꭱ . SEWARD'S REPLY то THE DEMAND. 405 Mr. Seward's Reply to the Demand. "But the question here concerns the mode of procedure in regard, not to the vessel that was carrying the contraband things which worked the forfeiture of the vessel, but to contraband persons. Mr. Seward's Reply to the Demand. port and subject her to a judi- | for or against the captured percial prosecution there in admi- sons. But it was assumed that ralty, which will try and decide there would result from the dethe questions of belligerency, neutrality, contra- termination of the court concerning the vessel a legal band and capture. So, again, you will promptly certainty concerning the character of the men. This find the same answer if the question were, what is course of proceeding seemed open to many objecthe manner of proceeding prescribed by the law of tions. It elevates the incidental interior private innations in regard to the contraband, if it be prop terest into the proper place of the main paramount erty or things of material or pecuniary value? 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 litigation. Moreover, when the judgment of the prize-court upon the lawfulness of the capture of the vessel is rendered, it really concludes nothing and binds neither the belligerent State nor the neutral upon the great question of the disposition to be made of the captured contraband persons. That question is still to be really determined, if at all, by diplomatic arrangement or by war. One may well express his surprise when told that the law of nations has furnished no more reasonable, practical and perfect mode than this of determining questions of such grave import between sovereign powers. 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 municipal law, especially in the system which exists in the greater portions of Great Britain and the United States. The title to personal property can hardly ever be resolved by a court without resorting to the fiction that the claimant has lost and the possessor has found it; and the title 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 judial process in determining the characters of contraband persons, no other form than the illogical and circuitous one thus described exists, nor has any other yet been suggested. Practically, therefore, the choice is between that judicial remedy or no judicial remedy whatever. "The books of law are dumb. Yet the question is as important as it is difficult. First, the belligerent captor has a right to prevent the contraband officer, soldier, sailor, minister, messenger or courier from proceeding in his unlawful voyage, and reaching the destined scene of his injurious service. But, on the other hand, the person captured may be innocent; that is, he may not be contraband. He therefore has a right to a fair trial of the accusation against him. The neutral State that has taken him under its flag is bound to protect him if he is not contraband, and is therefore entitled to be satisfied upon that important question. The faith of that State is pledged to his safety if innocent, as its justice is pledged to his surrender if he is really contraband. Here are conflicting claims, involving personal liberty, life, honor and duty. Here are conflicting national claims, involving welfare, safety, honor and empire. They require a tribunal and a trial. The captors and the captured are equals, the neutral and the belligerent State are equals. "While the law authorities were found silent, it was suggested at an early day by this Government, that you should take the captured persons into a convenient port, and institute judicial proceedings there to try the controversy. But only courts of admiralty have jurisdiction in maritime cases, and these courts have formulas to try only claims to contraband chattels, but none to try claims concerning contraband persons. The courts can entertain no proceedings and render no judgment in favor of or against the alleged contraband men. "It was replied, all this is true; but you can reach in those courts a decision which will have the moral weight of a judicial one; by a circuitous proceeding convey the suspected men, together with the suspected vessel, into port, and try there the question whether the vessel is contraband. You can prove it to be so by proving the suspected men to be contraband, and the court must then determine the vessel to be contraband. "If the men are not contraband, the vessel will escape condemnation. Still there is no judgment "If there be no judicial remedy, the result is that the question must be determined by the captor himself on the deck of the prize vessel. Very grave objections arise against such a course. The captor is armed the neutral is unarmed. The captor is interested, prejudiced, and perhaps violent — the neutral, if truly neutral, is disinterested, subdued and helpless. The tribunal is irresponsible, while its judgment is carried into instant execution. The captured party is compelled to submit, though bound by no legal, moral or treaty obligation to acquiesce. Reparation is distant and problematical, and depends at last on the justice, magnanimity or Mi Seward's Reply to the Demand. weakness of the State in whose behalf, and by whose authority the capture was made. Out of these disputes reprisals and wars necessarily arise, and these are so frequent and destructive that it may well be doubted whether this form of remedy is not a greater social evil than all that could follow if the belligerent right of search were universally renounced and abolished forever. But carry the case one step farther: What, if the State that has made the capture unreasonably refuse to hear the complaint of the neutral, or to redress it? In that case the very act of capture would be an act of war of war begun without notice and possibly entirely without provocation. "I think all unprejudiced minds will agree that imperfect as the existing judicial remedy may be supposed to be, it would be, as a general practice, better to follow it than to adopt the summary one of leaving the decision with the captor, and relying upon diplomatic debates to review his decision. Practically it is a question of law, with its imperfections and delays and war, with its evils and desolations. "Nor is it ever to be forgotten that neutrality, honestly and justly preserved, is always the harbinger of peace, and therefore is the common interest of nations, which is only saying that it is the interest of humanity itself. "At the same time it is not to be denied that it may sometimes happen that the judicial remedy will become impossible-as by the shipwreck of the prize vessel, or other circumstances which excuse the captor from sending or taking her into port for confiscation. In such a case, the right of the captor to the custody of the captured persons, and to dispose of them, if they are really contraband, so as to defeat their unlawful purposes, cannot reasonably be denied. "What rule shall be applied in such a case? Clearly the captor ought to be required to show that the failure of the judicial remedy results from circumstances beyond his control and without his fault. Otherwise he would be allowed to derive advantage from a wrongful act of his own. "In the present case Captain Wilkes, after capturing the contraband persons and making prize of the Trent, in what seems to us a perfectly lawful manner, instead of sending her into port, released her from the capture, and permitted her to proceed. with her whole cargo, upon her voyage. He then effectually prevented the judicial examination which might otherwise have occurred. If now the capture❘ of the contraband persons, and the capture of the contraband vessel, are to be regarded, not as two separable or distinct transactions under the law of Mr. Seward's Reply to the Demand. nations, but as one transac- 66 Captain Wilkes has presented to this Govern ment his reasons for releasing the Trent. "I forebore to seize her,' he says, 'in consequence of my being so reduced in officers and crew, and the derangement it would cause innocent persons, there being a large number of passengers who would have been put to a great loss and inconvenience as well as disappointment, from the interruption it would have caused them in not being able to join the steamer from St. Thomas to Europe. I therefore concluded to sacrifice the interests of my officers and crew in the prize, and suffered her to proceed after the detention necessary to effect the transfer of those commissioners, considering had obtained the important end I had in view, and which affected the interests of our country and interrupted the action of that of the Confederates.' "I shall consider, first, how these reasons ought to affect the action of this Government; and, secondly, how they ought to be expected to affect the action of Great Britain. The reasons are satisfactory to this Government, so far as Captain Wilkes is concerned. It could not desire that the San Jacinto, her officers and crew, should be exposed to danger and loss by weakening their number to detach a prize crew to go on board the Trent. Still less could it disavow the humane motive of preventing inconveniences, losses, and perhaps disasters, to the several hundred innocent passengers found on board the prize vessel. Nor could this Government perceive any ground for questioning the fact that these reasons, though apparently incongruous, did operate in the mind of Captain Wilkes, and determined him to release the Trent. Human actions generally proceed upon mingled and sometimes conflicting motives. We measured the sacrifices which this decision would cost. It manifestly, however, did not occur to him Mr. Seward's Reply to the Demand. MR. SEWARD'S REPLY that, beyond the sacrifice of the private interests (as he calls them) of his officers and crew, there might also possibly be a sacrifice even of the chief and public object of his capture-namely, the right of his Government to the custody and disposition of the captured persons. This Government cannot censure him for the oversight. It confesses that the whole subject came unforeseen upon this Government, as doubtless it did upon him. Its present convictions on the point in question are the result of deliberate examination and deduction now made, and not of any impressions previously formed. "Nevertheless, the question now is not whether Captain 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 hold the captured persons, the United States could, in that case, have no hesitation in saying that the act which has thus already been approved by the Government must be allowed to draw its legal consequence after it, "It is of the very nature of a gift, or a charity, that the giver cannot, after the exercise of his benevolence is past recall or modify its benefits. "We are thus brought directly to the question, whether we are entitled to regard the release of the Trent as involuntary, or whether we are obliged to consider that it was voluntary. Clearly, the release would have been involuntary had it been made solely upon the first ground assigned for it by Captain Wilkes--namely, a want of a sufficient force to send the prize vessel into port for adjudication. It is not the duty of a captor to hazard his own vessel in order to secure a judicial examination to the captured party. No large prize crew, however, is legally necessary; for it is the duty of the captured party to acquiesce and go willingly before a tribunal to whose 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 forward, and neither she nor the State she represents can ever afterwards justly object that the captor deprived her of the judicial remedy to which she was entitled. Mr. Seward's Reply to the Demand. nations by Captain Wilkes of his reasons for leaving the capture incomplete to affect the action of the British Government? The observation upon the point which occurs is, that Captain Wilkes' explanations were not made to the authorities of the captured vessel. If made known to them they might have approved and taken the release upon the condition of waiving a judicial investigation of the whole transaction, or they might have refused to accept the release upon that condition. "But the 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 released the offending vessel, out of consideration for her innocent passengers, I do not see how she is to be bound to acquiesce in the decision which was thus made by us without necessity on our part and without know. ledge of conditions or consent on her own. The question between Great Britain and ourselves, thus stated, would be a question not of right and of law, but of favor to be conceded by her to us in return for favors shown by us to her, of the value of which favors on both sides, we ourselves shall be the judge. 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 Government has neither meditated nor practised, nor approved any deliberate wrong in the transaction to which they have called its attention, and, on the contrary, that what has happened has been simply an inadvertency, consisting in a departure by the naval officer-free from any wrongful motive-from a rule uncertainly established, and, probably, by the several parties concerned, either imperfectly understood or entirely unknown. For this error the British Government has a right to expect the same reparation that we, as an independent State, should expect from Great Britain, or from any other friendly nation, in a s zai lar case. "I have not been unaware that in examining this question I have fallen into an argument for what seems to be the British side against my own country. But I am relieved from all embarrassment on that subject. I had hardly fallen into that line of argument when I discovered that I was really defending and maintaining, not an exclusively British interest, but an old, honored and cherished American cause, not upon British authorities, but upon principles that constitute a large portion of the distinctive policy by which the United States have de"Secondly-How ought we to expect those expla-veloped the resources of a continent, and, thus be "But the second reason assigned by Captain Wilkes for releasing the Trent differs from the first. At best, therefore, it must be held that Captain Wilkes, as he explains himself, acted from combined sentiments of prudence and generosity, and so that the release of the prize vessel was not strictly necessary or involuntary. Ma. Seward's Reply to the Demand. coming a considerable maritime power have won the respect and confidence of many nations. These principles were laid down for us in 1804 by Mr. Madison, when Secretary of State, in the administration of Thomas Jefferson, in instructions given to James Monroe, our Minister to England. Although the case before him concerned a description of persons different from those who are incidentally the subjects of the present discussion, the ground he assumed then was the same I now occupy, and the arguments by which he sustained himself upon it have been an inspiration to me in preparing this reply. 66 6 Nor have I been tempted at all by suggestions that cases might be found in history where Great Britain refused to yield to other nations; and even to ourselves, claims like that which is now before us. These cases occurred when Great Britain, as well as the United States, was the home of genera tions which, with all their peculiar interests and passions, have passed away. She could in no other way so effectually disavow any such injury as we think she does by assuming now as her own the ground upon which we then stood. It would tell little for our own claims to the character of a just and magnanimous people if we should so far consent to be guided by the law of retaliation as to lift up buried injuries from their grave to oppose against what national consistency and the national conscience compel us to regard as a claim intrinsically right. Whenever,' he says, ' property found in a neutral vessel is supposed to be liable on any ground to capture and condemnation, the rule in all cases is that the question shall not be decided by the captor, but be carried before a legal tribunal, where a regular trial may be had, and where the captor himself is liable to damages for an abuse of his power. Can it be reasonable, then, or just, that a belligerent commander who is thus restricted and thus responsible in a case of mere property, of trivial amount, should be permitted, without recurring to any tribunal whatever, to examine the crew of a neutral vessel, to decide the important question of their respective allegiances, and to carry that decision into execution by forcing every individual he may "Putting behind me all suggestions of this kind, choose into a service abhorrent to his feelings, cut- I prefer to express my satisfaction that, by the adting him off from his most tender connections, expos-justment of the present case, upon principles con ing his mind and his person to the most humiliating discipline, and his life itself to the greatest danger? Reason, justice and humanity unite in protesting against so extravagant a proceeding." "If I declare this case in favor of my own Government, I must disavow its most cherished principles, and reverse and forever abandon its essential policy. The country cannot afford the sacrifice. If I maintain these principles and adhere to that policy, I must surrender the case itself.. It will be seen, therefore, that this Government could not deny the justice of the claim presented to us in this respect upon its merits. We are asked to do to the British nation just what we have always insisted all nations ought to do to us. fessedly American, aud yet, as I trust, mutually satisfactory to both of the nations concerned, a question is finally and rightly settled between them which, heretofore exhausting, not only all forms of peaceful discussion, but also the arbitrament of war itself, for more than half a century alienated the two countries from each other, and perplexed with fears and apprehensions all other nations. "The four persons in question who are now held in military custody are at Fort Warren, in the State of Massachusetts. They will cheerfully be liberated. Your lordship will please indicate a time and place for receiving them. "I avail myself of the occasion to offer to your lordship a renewed assurance of my very high consideration. WILLIAM H. SEWARD." We should add, to render the record com "The claim of the British Government is not made in a discourteous manner. This Government, since its first organization, has never used more plete, the correspondence with the French guarded language in a similar case. "In coming to my conclusions I have not forgotten that if the safety of this Union required the detention of the captured persons it would be the right and duty of this Government to detain them. But the effectual check and waning proportions of the existing insurrection, as well as the compara Minister, as indicative of the views and posi ADMINISTRATION OF FOREIGN AFFAIRS, POLITICAL DEPARTMENT, Paris, Dec. 3, 1861. "Sir: The arrest of Messieurs Mason and Slidell, FRANCE ON THE SEIZURE OF MASON AND SLIDELL. 409 The French View. that Messrs. Mason and Slidell The French View "There remains, therefore, to invoke, in explanations of their capture, only the pretext that they were the bearers of official dispatches from the enemy. But this is the moment to recall a circumstance which governs all this affair, and which ren on board the English packet Trent, by an American cruiser, has produced In France, if not the same emotion as in England, at least extreme astonishment and sensation. Public sentiment was at once engrossed with the lawfulness and the consequence of suɔh an act, and the impression which has resulted from this has not been for an instant doubtful. "The fact has appeared so much out of accord-ders the conduct of the American cruiser unjustifiaance with the ordinary rules of international law that it has chosen to throw the responsibility for it exclusively on the commander of the San Jacinto. "It is not yet given to us to know whether this supposition is well founded, and the Government of the Emperor has therefore also had to examine the question raised by the taking away of the two passengers from the Trent. The desire to contribute to prevent a conflict, perhaps imminent, between two Powers for which it is animated by sentiments equally friendly, and the duty to uphold, for the purpose of placing the rights of its own flag under shelter from any attack, certain principles essential to the security of neutrals, have, after mature reflection, convinced it that it could not, under the circumstances, remain entirely silent. ale. The Trent was not destined to a point belonging to one of the belligerents; she was carrying to a neutral country her cargo and her passengers; and, moreover, it was in a neutral port that they were taken. "If it were admissable that, under such conditions, the neutral flag does not completely cover the persons and merchandise it carries, its immunity would be nothing more than idle words. At any moment the commerce and navigation of third Powers would have to suffer from their innocent and even their indirect relations with the one or the other of the belligerents. These last would no longer find themselves as having only the right to exact from the neutral entire partiality, and to interdict all intermeddling on his part in acts of hostility; they would impose on his freedom of commerce and navigation restrictions which modern international law has refused to admit as legitimate, and we should, in a word, fall back upon vexatious practices, against which, in other epochs, no Power has more earnest "If, to our deep regret, the Cabinet of Washington were disposed to approve the conduct of the commander of the San Jacinto, it would be either by considering Messrs. Mason and Slidell as enemies or as seeing in them nothing but rebels. In the one, as in the other case, there would be a forgetfulnessly protested than the United States. extremely annoying of principles upon which we nave always fouud the United States in agreement with us. "By what title, in effect, would the American cruiser, in the first case, have arrested Messrs. Mason and Slidell? The United States have admitted, with us, in the treaties concluded between the two Countries, that the freedom of the flag extends itself over the persons found on board should they be enemies of one of the two parties, unless the question is of military people actually in the service of the enemy. Messrs, Mason and Slidell were, therefore, by virtue of this principle, which we have never found any difficulty in causing to be inserted in our treaties of friendship and commerce, perfectly at liberty under the neutral flag of England. Doubtless it will not be pretended that they could be considered as contraband of war. That which constitutes contraband of war is not yet, it is true, exactly settled; the limitations are not exactly the same for all the Powers; but, in what relates to persons, the special st pulations which are found in the treaties concerning military people define plainly the character of those who only can be seized upon as belligerents; but there is no need to demonstrate "If the Cabinet of Washington would only look on the two persons arrested as rebels, whom it is always lawful to seize, the question, to place it on other ground, could not be solved, however, in a sense in favor of the commander of the San Jacin'o, There would be, in such case, misapprehension of the principle which makes a vessel a portion of the territory of the nation whose flag it bears, and violation of that immunity which prohibits a foreign sovereign, by consequence, from the exercise of his jurisdiction. It certainly is not necessary to recall to mind with what energy, under every circumstance, the Government of the United States has maintained this immunity, and the right of asylum which is the consequence of it. 'Not wishing to enter upon a more deep discussion of the questions raised by the capture of Messrs. Mason and Slidell, I have said enough, I think, to settle the point that the Cabinet at Washington could not, without striking a blow at the principles which all neutral nations are alike interested in holding in respect, nor without taking the attitude of contradiction of its own course up to this time, give its approbation to the proceedings of the com. mander of the San Jacinto. In this state of things, |