point. I then considered them as the embodiment of despatches." (S. Ex. Doc. 1, 37 Cong., 2 sess., vol. 3, p. 123.) "In connection with the case of Messrs. Mason and Slidell, the Department has recently been engaged in examining that of M. Fauchet, a minister from France during Washington's administration, who, while on his way to embark at Newport, R. I., on his return home, probably escaped seizure by the commander of the British ship Africa, near that port, in consequence of the packet Peggy, in which he was proceeding from New York to Newport, being compelled by stress of weather to put into Stonington, Conn. Here M. Fauchet received intimations of the intention of the commander of the Africa, which induced him to proceed to Newport by land and across the ferries. When the weather moderated the Peggy continued on her course, and when she approached the Africa she was boarded from that vessel, the trunks of the passengers were searched, and disappointment shown at the absence of M. Fauchet. This act having been committed within the maritime jurisdiction of the United States, and the British vice-consul at Newport having been implicated in it, his exequatur was formally revoked by President Washington and explanations demanded of the British Government; first through their minister here, and then through Mr. John Quincy Adams, acting chargé d'affaires at London." Mr. Seward, Sec. of State, to Mr. Adams, min. to England, No. 146, Dec. The report of Mr. Seward, Sec. of State, Dec. 9, 1862, giving the docu- A copy of the British Government's demand was presented by Lord Lyons to Mr. Seward on December 20, 1861. Mr. Seward's reply was made on December 26. In this reply Mr. Seward argued that Messrs. Mason and Slidell and their secretaries might properly be considered as contraband, or as analogues of contraband. In this relation he said: "All writers and judges pronounce naval or military persons in the service of the enemy contraband. Vattel says war allows us to cut off from an enemy all his resources, and to hinder him from sending ministers to solicit assistance. And Sir William Scott says you may stop the ambassador of your enemy on his passage. Despatches are not less clearly contraband, and the bearers or couriers who undertake to carry them fall under the same condemnation. "A subtlety might be raised whether pretended ministers of a usurping power, not recognized as legal by either the belligerent or the neutral, could be held to be contraband. But it would disappear on being subjected to what is the true test in all cases-namely, the spirit of the law. Sir William Scott, speaking of civil magistrates who are arrested and detained as contraband, says: "It appears to me on principle to be but reasonable that when it is of sufficient importance to the enemy that such persons shall be sent out on the public service at the public expense, it should afford equal ground of forfeiture against the vessel that may be let out for a purpose so intimately connected with the hostile operations.”” But Mr. Seward, after thus contending that the capture might have been validly made, declared that Captain Wilkes did not exercise the right of capture in conformity with the law of nations. The books of law, as to the proper course to be pursued in such a case, were, as he said, dumb. While the belligerent captor had "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," the person captured might, on the other hand, be innocent-that is, he might not be contraband-and he therefore had a right to a fair trial of the accusation against him. It was true, said Mr. Seward, that the courts of admiralty had no formulas for conducting proceedings against contraband persons, but, if there was no judicial remedy, the result was that the question must be determined by the captor himself on the deck of the prize vessel, and to this course there existed very grave objections. No matter, therefore, how imperfect the existing judicial remedy might be supposed to be, it would be better to follow it than to adopt the summary one of leaving it to the captor and relying upon diplomatic debates to review it. Under these circumstances, he reached the conclusion that the captives should be given up, and in taking this course he was, he said, really defending and maintaining not an exclusive British interest, but an old, honored, and cherished American cause, upon principles laid down by Jefferson and Madison, when they protested against the British claim of impressment. "If," said Mr. Seward, "I decide 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 can not afford the 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 justice of the claim presented to us in this respect upon its merits." Mr. Seward, Sec. of State, to Lord Lyons, British min., Dec. 26, 1861, MS. As to the presentation of the demand by Lord Lyons to Mr. Seward, see "The President has adopted his decision with the unanimous assent of As to the state of public feeling in the United States in favor of the detention of Messrs. Mason and Slidell, see the Hon. Horatio King, in the Magazine of American History for March, 1886; also, Harris, The Trent Affair. "The Trent affair, all the world sees, was an accident for which not the least responsibility rests upon this Government. For a time our national pride and passion appealed to us to abandon an ancient and liberal policy; but, even though unadvised, we did not listen to it, and we are to-day, after that occurrence, as ready and as willing to join other maritime powers in meliorations of the law, to the extent that France desires, as we were before it happened, and before the civil war commenced." (Mr. Seward, Sec. of State, to Mr. Dayton, min. to France, No. 114, Feb. 19, 1862, Dip. Cor. 1862, 315, 316.) For correspondence in the Trent case, see 55 Br. & For. State Papers, 602. In a letter to Mr. Evarts, June 8, 1879, the Hon. Benjamin F. Butler asked to be furnished with a copy of an opinion of Caleb Cushing, which, he said, he filed in the Department of State in 1861 in regard to the capture of Mason and Slidell. Mr. Evarts stated, in reply, that a search had been made, but that the papers had not been found. He suggested that the opinion might not have been placed on the official files or might afterwards have been withdrawn by Mr. Cushing. (Mr. Evarts, Sec. of State, to Mr. Butler, June 13, 1879, 128 MS. Dom. Let. 431.) As to the claim of impressment, see supra, §§ 317-320. Mr. Seward, in concluding his note to Lord Lyons of December 26, 1861, stated that the prisoners would be cheerfully liberated, and requested Lord Lyons to indicate a time and place for receiving them. In view of the fact that no condition of any kind was coupled with this offer, and of the statement that Captain Wilkes's act was not authorized, Earl Russell accepted Mr. Seward's response as constituting the reparation which the British Government had demanded, although it was not accompanied with any express apology. In an instruction to Lord Lyons of January 23, 1862, however, his lordship reviewed Mr. Seward's argument with regard to the question of contraband, and took the ground that the conveyance of Messrs. Mason and Slidell and of their credentials or dispatches, if they had any, from Havana to St. Thomas, could not have been a violation of neutrality, because their destination was bona fide neutral. In order that things might be considered as contraband, they must, said his lordship, have a hostile and not a neutral destination, and in this relation he cited Bynkershoek, Quæst. Jur. Pub., lib. i., cap. 9, and The Imina, 3 C. Rob. 167. Mr. Seward, said Earl Russell, sought to support his conclusion by the well-known dictum of Sir William Scott, in the case of The Caroline, 6 C. Rob. 468, to the effect that "you may stop the ambassador of your enemy on his passage," and another dictum of the same judge in the case of The Orozembo, 6 C. Rob. 434, to the effect that civil functionaries, "if sent for a purpose intimately connected with the hostile operations," might fall under the same rule as military persons. But Sir William Scott, said Earl Russell, did not express the opinion, nor had any writer of authority ever suggested, that an ambassador proceeding to a neutral state on board one of its merchant ships might be treated as contraband of war. The rule to be collected from the authorities was, said his lordship, that you might stop an enemy's ambassador in any place of which you were yourself the master, or in any place where you might have the right to exercise acts of hostility. But an ambassador sent to a neutral power must be considered as inviolable on the high seas, as well as in neutral waters, while under the protection of the neutral flag. "It is," said Earl Russell," undoubtedly the law as laid down by British authorities, that if the real destination of the vessel be hostile (that is, to the enemy, or the enemy's country). it can not be covered and rendered innocent by a fictitious destination to a neutral port. But if the real terminus of the voyage be bona fide in a neutral territory, no English, nor, indeed, as Her Majesty's Government believe, any American, authority can be found which has ever given countenance to the doctrine that either men or despatches can be subject, during such a voyage, and on board such a neutral vessel, to belligerent capture as contraband of war. According to Mr. Seward's doctrine, any packet ship carrying a Confederate agent from Dover to Calais, or from Calais to Dover, might be captured and carried to New York.. . So also a Confederate vessel of war might capture a Cunard steamer on its way from Halifax to Liverpool, on the ground of its carrying despatches from Mr. Seward to Mr. Adams. Mr. Seward asserts 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.' His frankness compels me to be equally open, and to inform him that Great Britain could not have submitted to the perpetration of that wrong, however flourishing might have been the insurrection in the South, and however important the persons captured might have been." Earl Russell to Lord Lyons, Jan. 10, 1862, Dip. Cor. 1862, 245; same to See Mr. Seward, Sec. of State, to Mr. Stoeckl, Russian min., Feb. 18, 1862, For correspondence between Mr. Seward and the diplomatic representa- "Lord Russell's reply takes ground which was substantially adopted by the leading European powers, and, therefore, placing it side by side with Mr. Seward's instructions, gives us a basis from which we can gather certain general rules in respect to the important subject of which it treats. These rules are as follows: "(1) Diplomatic agents sent by one belligerent to a neutral are not, in themselves, contraband of war, subject to seizure by the other belligerent if found on a neutral ship on the high seas. It is true. that a belligerent diplomatic agent may carry with him dispatches which are promotive of the belligerent designs of the power he represents; and if so, such dispatches will be contraband of war, and, if the agent carrying them be proved to be cognizant of their character and employed in carrying out the belligerent purpose they disclose, he may be subjected to the same taint and exposed to the same contingencies. But it does not follow that a diplomatic agent from a belligerent, when on a neutral vessel, bound to a neutral port, is necessarily employed in the furtherance of belligerent designs. He may be engaged on an errand of peace. This may be in two ways. He may be seeking to consummate some such general plan for the mitigation of the sufferings of war, as was set forth by the declaration of Paris of 1856, or by the Geneva Conference which met during the Franco-German war. It is well known that both Great Britain and France sought to obtain the accession of other powers to the principles with regard to freedom of neutral ships adopted by the treaty of Paris; and it is noticed in other sections of this work that the United States Government, when a neutral during the Napoleonic wars, sought to have agreements of the same character made between itself and the then great belligerent powers. Such a condition of things would be likely again to occur in any future maritime war. China, for instance, is rapidly becoming an important power, with a |