THE "TRENT," 1861.

(Laurence's Wheaton, 939; Dana's Wheaton, 644.)

The Trent was carrying, as passengers, Messrs. Mason and Slidell, agents of the Confederate Government, between the neutral ports of Havana and St. Thomas; when these passengers were forcibly removed by Captain Wilkes of the United States steamer San Jacinto. Mr. Seward admitted that these persons could not be lawfully taken from the Trent at sea, but contended that she might have been brought in as prize.

At an early stage of the civil war in the United States, in October, 1861, the Confederate Government appointed Mr. Mason to England and Mr. Slidell to France, each with a secretary, to act as commissioners or ambassadors to those countries. The government had not been recognized by any nation, and could not maintain diplomatic relations; but it had been recognized as a lawful belligerent. The object of the mission of Mason and Slidell was to aid the insurgent government by all means in their power; to urge its recognition by the European States; to effect treaties of commerce or alliance; to procure, if desired by their government, the intervention of European powers.

It may be said to have been essential that these agents should make the passage under neutral flags. They succeeded in running the blockade in fast steamers to Havana. At Havana they took passage, on their way to Europe, in a British steamer, the Trent, bound from Ilavana to St. Thomas, from which latter place a regular line of steamers, connecting with the Trent, ran to England. The Trent carried the regular mails from the South American continent and Cuba to England, to transfer them at St. Thomas to the next steamer on the route. She had a large number of passengers, most of whom were also bound to England. Messrs. Mason and Slidell, and their secretaries, had dispatches and instructions from their own. government, which were under their personal charge.

On the high seas, nine miles from the coast of Cuba, she was stopped and searched by the United States steamer San Jacinto, Captain Wilkes.

Messrs. Mason and Slidell were found on board; but the dispatches they secreted, and confided to some of the passengers to be taken to Europe. There was no evidence or charge that the commander of the Trent aided in the concealment or forwarding of these dispatches.

He did, however, deny the right of search, refused all facilities for it, and obstructed it by everything but actual force; and made it known to Captain Wilkes that he yielded only to superior power, and that, if made a prize, he and his crew would lend no aid in carrying the Trent into port. Captain Wilkes took Messrs. Mason and Slidell and their suite from the Trent, permitted her to proceed on her passage, and carried his prisoners to the United States.

Earl Russell, in his demand upon the United States Government (letter to Lord Lyons, Nov. 30, 1861), stated the proceeding as simply a case of a forcible taking of four passengers from an innocent British vessel at sea by an American ship of war, making no reference to their official character, or even to their nationality. Mr. Seward's reply (letter to Lord Lyons of Dec. 29, 1861) goes at length into the subject. He considers, first, whether these persons were, as he terms it, contraband of war. He cites Vattel as saying, "War allows us to cut off from our enemy all his resources, and to hinder him from sending ministers to solicit assistance," and Sir William Scott, as saying, "You may stop the ambassador of your enemy on his passage," and applies the test, in the words of Sir William Scott, "If it is of sufficient importance to the enemy that such persons should be sent out on the public service at the public expense, it should afford equal ground of forfeiture of the vessel that may be let out for a purpose so intimately connected with the hostile operations:" and he comes to the conclusion, that these persons were, from the nature of their office and destination, contraband.

Assuming, then, which was not denied, that Captain Wilkes had a right to visit and search the Trent, as an act of maritime belligerency, and showing that he exercised the right of search in a proper manner, he examines the last question, whether the taking of these persons out of the ship, by Captain Wilkes, was justifiable, under the accepted law of nations.

He at once disclaims, what Lord Russell assumed to be the ground of the act, a right to take rebels or other criminals or enemies, as such, from a neutral vessel, as an exercise of ocean police. He states that the whole course of Captain Wilkes was in the exercise of a belligerent right of search and capture. In this connection, he alludes to the claim long made and enforced by Great Britain, and resisted by us, of a right to take her own seamen from American vessels. As such seamen are not enemies, nor enemy's property, nor contraband, the exercise of that power was simply an exercise of ocean police, for municipal purposes, over vessels of a foreign country. He treats this reclamation of Lord Russell as a renunciation of such a claim in the future by Great Britain; and agrees, that, if such

had been the character of Captain Wilkes's act, it would have been indefensible. Having resolved the question of contraband in favor of the captors, he proceeds to discuss the rights and duties of a cruiser which finds contraband persons on board of a neutral vessel. He contends that it is clearly the right and duty of the cruiser to make the vessel a prize, and send her in for adjudication. He adverts to the fact that, in such cases, the prize proceedings can only be against the vessel. A prize court is not competent to decide abstractly upon the character of persons on board, and decree them to be either prize or prisoners of war. Its only function is to pronounce on property, whether it be prize or no prize; and it passes upon the status and character of persons, only as means of determining the status and predicament of the res. He remarks upon the unsatisfactory nature of such a circuitous proceeding as a mode of determining the character and fate of persons, owing to the liability of a defeat of the purpose by the accidents and incidents of all trials. The vessel may be restored or condemned on grounds independent of the character of the persons in question. The prize court has no power directly to control the persons found on board, after their evidence is given, or to restore them to the claimants; so that, after all, the question must be left to diplomacy.

Still, he considers that this process, though unsatisfactory, is all that the laws of war have provided, unless the cruiser can take the contraband persons from the vessel jure belli, leaving her to proceed on her course.

As to such a right, he says that the United States have always denied its existence, and that to claim it in this instance, would be to reverse the whole course of our history. After pointing to the evils that might follow the exercise of the right, he says, "I think all unprejudiced minds will agree, that, imperfect as the present 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 debate to review his decision." Had the act of Captain Wilkes, therefore, been for the purpose of taking contraband persons out of a neutral vessel, it would have been disclaimed. But, having been for the purpose of making a prize of the vessel, with the contraband persons on board, Mr. Seward next proceeds to consider the effect of the release of the vessel.

He observes upon the fact that it was not a case in which, at the request or with the consent of the neutral, what had been seized was surrendered to the captors, upon a release of the vessel. The master of the Trent made no request or assent; and the release was

the act of Captain Wilkes solely. Mr. Seward then refers to the exceptions to the rule that the captor must send in his prize for adjudication, and finds them all to be cases of substantial necessity, excusing the performance of what is else a duty. He then examines the statements of Captain Wilkes as to the motives which induced him to release the vessel, and finds that he was governed mainly by a desire to relieve the large number of passengers, and an unwillingness to subject the mails to the delays consequent upon the sendingin of the vessel; although it also appeared that the want of force to bring in both vessels, conveniently and safely, operated somewhat upon his mind. Mr. Seward concludes that, while the comity of Captain Wilkes, and his willingness to relinquish for himself and his crew their large possible interest as captors, are to be applauded, he did in fact, without being aware of it, take a step which made the detention and bringing in of Mason and Slidell unjustifiable, under those rules of war for which the United States have argued, negotiated, and fought.

Mr. Seward concludes by declaring that the persons in question, held as prisoners of war, would be liberated.

By an arrangement between Mr. Seward and Lord Lyons, they were placed on board an English war vessel, which took them to St. Thomas, the port of destination of the Trent; thus placing things, as far as possible, in statu quo ante.

Earl Russell, in his letter to Lord Lyons, of Jan. 23, 1862, reviews the letter of Mr. Seward on the point of the contraband character of Messrs. Mason and Slidell, and comes to a different result. As the affair was now settled, this letter was for the purpose of precluding an inference, in case of silence, that he agreed to Mr. Seward's position. He places his argument on two grounds,-first, that the office and character of the persons detained were not such as to make them contraband; and second, that, if contraband in the abstract, they were not, on board the Trent, contraband in such a sense as to involve her in any penalties, since her passage was between neutral ports.

On the first point, Earl Russell contends that Messrs. Mason and Slidell have the protection which is accorded to diplomatic agents, by the decisions of Sir William Scott. He argues that this protection cannot be confined to persons who have been already received as diplomatic agents, or persons sent from regularly recognized sovereignties. The nations of Europe having recognized the Confederate Government as belligerent, and their subjects having many impor tant rights of person or property under the control of that de facto government, and the recognition of belligerency carrying with it

rights as well as duties, neutral nations have an interest in such imperfect diplomatic relations as they may maintain with commissioners or other diplomatic agents from such de facto governments. "It appears to Her Majesty's Government to be a necessary and certain deduction from these principles, that the conveyance of public agents of this character on their way to Great Britain and France, and of their credentials and dispatches (if any), was not, and could not be, a violation of the duties of neutrality."

SECTION 46.-BLOCK ADe.

THE "NEPTUNUS."

HIGH COURT OF ADMIRALTY, 1799.

(2 C. Robinson, 110.)

Blockade by notice, and blockade de facto. When is notice required?

This was a case of a vessel sailing on a voyage from Dantzick to Havre, 26th October, 1798, and taken in attempting to enter that port on 26th November.

"This is a case of a ship and cargo seized in the act of entering the port of Havre in pursuance of the original intention under which the voyage began. The notification of the blockade of that port was made on the 23d January, 1798, and this transaction happened in November in that year; the effect of a notification to any foreign government would clearly be to include all the individuals of that nation; it would be the most nugatory thing in the world, if individuals were allowed to plead their ignorance of it; it is the duty of foreign governments to communicate the information to their subjects, whose interests they are bound to protect. I shall hold therefore that a neutral master can never be heard to aver against a notification of blockade, that he is ignorant of it. If he is really ignorant of it, it may be a subject of representation to his own government, and may raise a claim of compensation from them, but it can be no plea in the court of a belligerent. In the case of a blockade de facto only, it may be otherwise, but this is the case of a blockade by notification; another distinction between a notified blockade and a blockade existing de facto only, is that in the former,