In any discussion of the Trent case from the standpoint of international law, all purely political phases of the matter should be omitted. That the captured persons were dangerous enemies of the United States, that they were going to Europe to secure aid in the destruction of the American Union, that the British demand for their surrender was backed by extensive preparations for war, that a refusal to give up the men meant a conflict with England and a permanently divided republic—these are all matters not easy to leave out of consideration. They have no place, however, in this chapter, since they can have no bearing upon the principles of international law which are applicable to this case.

It may be safely assumed that the right of a belligerent to proceed against a neutral in any given case depends upon the legality of the act of the neutral which it is proposed to call in question. The law of nations forbids a neutral to perform for either belligerent any service which will aid in conducting hostilities. Among the acts thus prohibited may be mentioned the transportation of either officers or dispatches when they are of a military character; also soldiers, arms, ammunition and other things which are classed as contraband of war. Knowingly to violate this law renders a neutral ship liable to capture and confiscation.

If these premises be correctly stated, it follows that the legality of the course of the Trent will settle the question as to what Captain Wilkes had a right to do in this case. The first matter to be considered then is whether the law of nations was violated when the Confederate commissioners with their secretaries and dispatches were knowingly received on board the Trent at Havana and allowed to proceed toward their destination. If these men and their dispatches were contraband of war by the law of nations, it follows that the vessel which carried them was liable to seizure and condemnation by the Federal authorities.

In his letter conceding the British demand Mr. Seward discussed this matter and arrived at the conclusion that the commissioners and their dispatches were contraband. 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 of 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. Dispatches are not less clearly contraband, and the bearers or couriers who undertake to carry them fall under the same condemnation.” Mr. Seward also held that “pretended ministers of a usurping power, not recognized as legal by either the belligerent or the neutral,” were none the less contraband and, in support of his position, quoted from Sir William Scott, who had once expressed an opinion upon the matter, as follows: “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.”

Vattel, whom Mr. Seward quotes in support of his position that ambassadors of an enemy may be cut off, wrote at a time when many principles of international law were not fully settled. His doctrines were in accordance with the illiberal ideas of international comity which prevailed in that age. The passage referred to by Mr. Seward reads as follows, when carefully translated from the original French: “His (the enemy’s) people may also be attacked and seized wherever we have a right to commit acts of hostility. Not only, therefore, may we justly refuse a passage to the ministers whom our enemies send to other sovereigns; we may even arrest them if they attempt to pass privately and without permission through places belonging to our jurisdiction.”⁠[1] To illustrate his meaning more fully Vattel then gives an instance of what he regards as a lawful arrest, viz.: that of Marshall Belle-Isle, a French minister who was arrested in 1744 while passing through Hanover. He was seized by the troops of George II, who was then at war with France. As George II of England was also ruler of Hanover, he had a right to make the seizure in his own territory.

It is evident that Vattel means to limit the right to seize the ambassador of an enemy, and that in his opinion this right can be exercised only where one has a “right to commit acts of hostility.” This can not be done on the deck of a neutral ship unless there is sufficient cause for such a proceeding. If the Trent had been conveying troops to the Confederates, or if she had escaped through a Federal blockading squadron, she would then have become liable to seizure, and acts of hostility could have been exercised against her by Captain Wilkes. Since she had been guilty of nothing of this character, it is evident that the only ground for proceeding against her was the assumption that the Confederate ambassadors were on board her and that their presence there gave to her a hostile character. But the latter fact is the test of right—a thing which we are not warranted in assuming. A neutral vessel is not a place over which one can exercise acts of hostility, unless there be evidences of a breach of neutrality. It is not a place “over which one is master.” The mere fact that ambassadors of a hostile power are on board a neutral vessel is not of itself evidence of a breach of neutrality. If Captain Wilkes had made the arrest in one of the southern blockaded harbors, or if he had intercepted the Theodora and captured the commissioners, the act would have been, in either case, entirely in accordance with Vattel’s rule, but, as it was, there is certainly much room for doubt. The legal status of the commissioners, or the rights of a Federal naval officer toward them while on board a Confederate vessel or in a southern harbor, was quite different from their status on a neutral deck.

When Sir William Scott said, as asserted by Mr. Seward, that you may stop the ambassador of your enemy on his passage, the opinion was only a quotation from Vattel and was prefaced by the assertion that “you may exercise your right of war against them (ambassadors) wherever the character of hostility exists.”⁠[2] The ambassador of an enemy may be captured, then, only in those places where you can exercise acts of hostility. Mr. Seward’s isolated quotation conveys a meaning different from that of the passage taken as a whole.

From the case of the Orozembo⁠[3] (1807) Mr. Seward concludes that persons in the civil employ of a government may be captured on the passage, and that, when sent out at public expense, they may be seized, whether their government be a recognized one or not.

The Orozembo was an American vessel which went from Rotterdam to Lisbon and there took in three Dutch military officers of distinction; also two persons to be employed in a civil capacity at Batavia—the place to which the vessel was proceeding, although she falsely held out as her destination Macao, another and neutral port. It also appeared that she was under contract with the Dutch government to carry for a consideration such persons as might be designated, without regard to number. She thus became a transport ship under the control of the enemy, let to do hostile service. During the term of her contract she was subject to the orders of an enemy; her voyage in this instance began at a hostile port; it was to end at a port of the same enemy. An attempt was made to conceal these facts.

Such were the circumstances in the case which led to the condemnation of the Orozembo. The conditions under which the voyage was made and the presence on board her of three distinguished military officers would have been sufficient cause for condemnation, without taking into account the fact that she carried two officers in the civil employ of Holland. After announcing the principle that “a vessel hired by the enemy for the conveyance of military persons is to be considered a transport subject to condemnation,” Sir William Scott says, “whether the principle would apply to them alone (civil officers) I do not feel it necessary to determine.” He then uses the language quoted by Seward. The passage referred to by Mr. Seward is only a dictum—a personal opinion of the judge—and is not to be understood or construed as an established principle of public law. An able writer of international law says of this quotation: “Even as a dictum, it does not touch the case of a neutral vessel not let out as a transport, and merely having civil officers of a belligerent government on board, without other circumstances tending to show the vessel herself to be in the enemy’s service.”⁠[4]

It appears, then, from a careful consideration of the authorities relied upon by Mr. Seward to establish the contraband character of the men, that his conclusion is not warranted.

He also held that the dispatches of the Confederate commissioners were contraband and their bearers liable to condemnation. No reason for this opinion was given save the relation of the supposed contents of the dispatches to the errand of Messrs. Mason and Slidell abroad. The only knowledge of the nature or even the existence of these dispatches was based upon information of their arrival in Europe furnished by the United States consul at Paris.⁠[5] In the case of the Rapid (1810), an American vessel proceeding from New York to Tonningen, both neutral ports, it was held that where a neutral vessel not in the employ of an enemy transports noxious dispatches while pursuing her regular employment, her guilt depends upon the act of her master or those in charge of her, in receiving such communications. In such cases Sir William Scott laid down the rule that “the caution must be proportioned to the circumstances under which such papers are received.”

It was held that when each terminus of the voyage is a neutral port “there is less to excite his vigilance.”⁠[6] Even this rule is relaxed in the case of diplomatic dispatches.⁠[7] A more stringent rule would subject neutral vessels to a most irksome surveillance, and greatly disturb mail communications, since not even a single letter could be accepted with safety.

The case of the Caroline has already been cited. This was the case of an American vessel which was captured while proceeding from New York to Bordeaux in 1808. She carried a dispatch from the French minister in the United States to his own government. Sir William Scott held in this instance that diplomatic dispatches are not contraband of war, since they are not presumed to partake of a hostile nature. It is true that they may be so, but the remedy is not the capture of the ship. The redress must be political and diplomatic.

The case of the Atalanta⁠[8] has been cited as one where diplomatic dispatches were regarded as contraband of war. There are, however, many points of difference between the case of this vessel and that of the Trent. The Atalanta was a neutral vessel which carried dispatches of an official character. They were in charge of the supercargo who planned to conceal them, and actually did this when his vessel was boarded and searched by a British cruiser. The noxious papers were discovered only by accident. This vessel also carried a French artillery officer who was disguised as a planter, and who was the real bearer of the dispatches. These facts having been proved, Sir William Scott held that the vessel was answerable for the acts of her supercargo, who had refused to grant, in good faith, the right of search, and had fraudulently concealed the dispatches which were on board. It was decided that, by such a course, the officer of the ship “lends himself to effect a communication the enemy may cut off; under protection of an ostensible neutral character, he does in fact place himself in the service of the enemy’s state.” The many points of difference between this case, then, and the one under consideration are quite apparent.

In Mr. Seward’s letter conceding the demands of Great Britain, he held that the circumstance that the Trent was proceeding from one neutral port to another neutral port was not proof of her innocence, and that it in no way modified the right of the captor. He said that he read British authorities to this effect. Lord Russell thought this a remarkable passage in Mr. Seward’s letter, and held that the fact that both termini of the voyage were not only ostensibly but bona fide neutral was conclusive evidence of the innocence of the vessel. There is certainly no good reason why this should be the rule in such cases, and if the matter is to be determined by British precedent, Mr. Seward was correct in his assumption. The case of the Rapid (already referred to) may be cited as one directly in point. In this instance the voyage began at a neutral port, and was to end at another neutral port. The Rapid was released, but this was done solely on the ground that her master had not been at fault in receiving the noxious papers for transmission. He had, in fact, exercised all of the legal caution that was necessary in receiving them on board his ship. He had no knowledge of their contents. If, in 1810, British law regarded as innocent every vessel plying between neutral ports, this would have been conclusive in favor of the Rapid, without any inquiry whatever into the conduct of her master. The fact of neutral termini of her voyage would undoubtedly have been the ground of her release, if Sir William Scott had understood this to be British law at that time. Since he did not so decide, the only inference which can be drawn from his course is that he did not understand such to be the law.

Dana, in discussing the probable decision of an American prize court, concerning this matter, says: “As the official character of these persons, the general nature of their mission, and the probable general character of their papers, and the termini of their journey, were well known to the persons in charge of the Trent, and they took them on board knowingly and voluntarily to frank them under the neutral flag over a part of their hazardous passage, there can be no doubt that the fate of the Trent would have been the same, whether her termini were neutral or hostile ports.”⁠[9] Contrary opinions, however, are not difficult to find. An eminent American authority says: “The character of the vessel (i. e., the Trent) as a packet ship conveying mails and passengers from one neutral port to another, almost precluded the possibility of guilt. Even if hostile military persons had been found on board, it might be a question whether their presence would involve the ship in guilt, as they were going from a neutral country to a neutral country.”⁠[10]

As an example of an opinion in which this same doctrine is carried to the extreme, that of M. Hautefeuille may be mentioned. He sustains Lord Russell’s position and declares without reserve that the sailing of a neutral vessel between two neutral ports is absolute and conclusive evidence in her favor.⁠[11] This, however, is only a personal opinion not based upon judicial precedent, and hence, not worthy of special consideration.

The sounder rule of international law, as deduced from the practice of both English and American prize courts, seems to be that the fact of the sailing of a neutral vessel between two neutral ports is not to be regarded as an indifferent matter in determining the question of her guilt or innocence. It is always an evidence in favor of the neutral, although not by any means a conclusive one.

The Queen’s neutrality proclamation, issued at the beginning of the war, forbade her majesty’s subjects from “carrying officers, soldiers, dispatches, arms, military stores,” etc., for either of the contending parties. It has been held that this alone would have been sufficient to decide the case against the Trent. Such a view of the matter is, however, not correct. The term “dispatches,” as used in the proclamation, evidently means those of a military nature only, since it is enumerated along with other words used to define operations of that kind. The language does not express or even imply any relation to communications of a diplomatic nature.

It was not the design or intent of the proclamation to lay down any new international law, but only to warn British subjects against the things already forbidden by the law of nations and by the statutes of Great Britain. It was simply an application of these various laws to the existing status of the belligerents.

Diplomatic persons are, by the law of nations, entitled to the special favor and protection of governments. Since Messrs. Mason and Slidell were the representatives of an unrecognized insurgent power, the question arises as to whether they were entitled to any of the immunities and privileges uniformly extended to diplomatic ministers. There is no judicial decision which bears even remotely upon a matter of this kind. On the one hand it may be said that the government represented by these men had received no sort of recognition except that of belligerency. Their mission was not the usual one of diplomatic representatives who conduct the friendly and established diplomacy of sovereign nations, but it was to obtain foreign aid for an insurrection in America, and to become recognized ministers abroad, should the independence of the Confederacy be established.

On the other hand it may be argued that where an insurgent power has been recognized as a belligerent, this carries with it the right to maintain at least informal relations with foreign states whose subjects may have extensive material interests in the insurgent state or be temporary residents of it. The interest and convenience of foreign nations require this. To cut off all diplomatic communication, even of an informal character, in such cases, would be to declare a practical outlawry against a nation already in possession of the rights of belligerents. Such a course would also prevent any new nation from ever becoming recognized as sovereign and independent. Informal diplomatic relations must precede formal ones, and if the former be entirely cut off, how can the latter be established at all? Informal diplomatic relations were held between the representatives of the South American republics and the United States government, prior to the recognition of the independence of the former.⁠[12] If a diplomatic agent of one of these insurgent republics had embarked on a United States merchant vessel at some neutral foreign port, with the design of coming to New York, and if this vessel had been stopped by a Spanish man-of-war, and the diplomatic agent forcibly removed, or if the American ship had been captured for no other reason than the presence on board her of such an emissary, it is doubtful whether the United States government would have quietly acquiesced in either of these proceedings.

If it be conceded that informal diplomatic relations may be held between an unrecognized government and a foreign state, this would seem to carry with it the right to whatever of immunity is necessary to make such relations effective. Whenever an international law court shall be called upon to decide this question, it will have to be done upon principle and without the aid of a judicial precedent.

In considering the question as to whether the Confederate commissioners were contraband of war or not, Captain Wilkes’s theory that they were “the embodiment of dispatches” or “living epistles,” deserves a brief notice. It was only a cleverly devised fiction of public law, and of no value. It has never received any recognition whatever from official or authoritative sources. Dr. Woolsey says: “It is simply absurd to say that these men were living dispatches.”⁠[13] Count de Gasparin says: “The doctrine of man dispatches is the weak side of the American argument. In such a matter, it is not permissible to extend by force of reasoning, or even a fortiori, the categories fixed by the law of nations.”⁠[14]

Captain Wilkes had an undoubted right to stop and search the Trent for contraband of war. Officially, it was neither denied nor complained of by the British government. Writers on international law are practically unanimous in their support of the doctrine that a belligerent cruiser may search neutral ships for contraband, in time of war. This is a right that is both just and necessary, since it is the only way by which the belligerent may ascertain beyond doubt whether the neutral is performing contraband service for an enemy.

In the beginning of this discussion it was stated that the right of Captain Wilkes to capture the Trent depended upon the legality of her act in carrying the men and their dispatches, and that this, in turn, depended upon their contraband character. When Mr. Seward assumed that they were contraband, the burden of proof rested upon him. He appealed to British authorities only in support of his position. If the present examination of these authorities has shown that Mr. Seward’s position was untenable and that the men were not contraband of war, it follows that Captain Wilkes had no right to capture the Trent, unless there were other reasons for such a procedure. If no such right existed then, clearly, no right was waived—as claimed by Mr. Seward—when she was permitted to proceed upon her journey instead of being brought into port for adjudication. If the men and their dispatches were not contraband of war, there appears to be no valid reason for the capture.

It can not be held that the United States had the right to seize them as an exercise of ocean police powers, such as England practiced a half century before when she took out of neutral ships men of pretended English birth. Any such position was disclaimed by Mr. Seward, and it is a matter of history that the United States has always denied the existence of such a right.

Neither can it be pretended that the seizure was justifiable because the men were rebels or political offenders, no matter what the relation of their government was to the other governments of the world. The United States has always maintained the right of asylum for this class of men, and the right of a foreign power to do this in the case of American offenders could not be consistently denied. A criminal or a traitor can not be taken from the protection of a neutral foreign flag except in accordance with the provisions of a treaty between the powers providing for the extradition of such offenders according to forms of law.

If, independently of the fact that the commissioners and their dispatches were on board, there had existed any valid reason for seizing the Trent and bringing her into port, this course could have been pursued, and, as soon as she had entered American waters, these men, being citizens of the United States, would have been amenable to the laws of their country. Their arrest and imprisonment then would have been entirely legal. It would have been, in that case, only an incidental matter which could be in no way connected with the capture and detention of the vessel upon which they traveled.

If the Trent had been brought into port, a prize court would have met with difficulties in adjusting the case. Maritime law deals only in rem, that is, with things or property, not with persons. The ship and her cargo would have been either condemned as prize or released with an award of damages to her owners. But whatever the decision of the court concerning the vessel and her cargo, the status of Messrs. Mason and Slidell would have been precisely the same. Dana, in reviewing this matter, says that under these circumstances they “could not be condemned or released by the court. They would doubtless have been held as prisoners of war by the United States government. In the event of a decision favorable to the captors, the case of the persons would still be a diplomatic one.”⁠[15]

If American doctrine had been consulted, Mr. Seward could have found in it nothing to sustain his views concerning the contraband character of the men and their dispatches. The United States government, from the earliest period of its history, had pursued a maritime policy entirely different from that sustained by Mr. Seward in his dispatch conceding the British demand for the surrender of Messrs. Mason and Slidell. The doctrine, announced by the founders of the American republic in their earliest state papers and steadily adhered to thereafter, was not left to the uncertainties of maritime court decisions, but was put into the form of positive law and made a special part of the treaty stipulations with foreign countries. In the very first treaty ever made by the United States with a foreign power, namely, the one negotiated with France by Benjamin Franklin in 1778, it was provided that no class of persons should be taken out of a free ship except “soldiers in actual service of an enemy.” This same doctrine was re-affirmed in an unbroken line of treaties—eighteen in number—negotiated with foreign countries prior to the period of the civil war.

In all of these treaties it was expressly provided that nothing should be considered as contraband of war except the things therein specified and enumerated. Non-military dispatches were not enumerated in the list of contraband, and hence could not be classed as such. It is true that the language of these treaty stipulations had never been passed upon by any American courts of admiralty, but nothing of this kind was necessary, for the terms used were so definite and precise that no other construction could possibly have been placed upon them. British prize courts passed upon the guilt or innocence of the American ships referred to in this chapter, because there was no treaty between the two countries by which contraband of war was defined in precise terms.

Where no such treaties existed between these two countries, it can not be held that anything is positively proved by the argument here offered, but the conclusion to be drawn by analogy is self-evident.

It would have been more consistent with the past record of American diplomacy, if the release of the Confederate commissioners had been made upon the ground that the law of nations, as understood and interpreted by the United States government, does not permit a belligerent to take from a free neutral ship either non-military dispatches or any class of persons except officers or soldiers in the actual service of the enemy. It is to be regretted that the men were surrendered upon the ground that although they and their dispatches were contraband, yet the right to retain them had been forfeited when Captain Wilkes voluntarily released the Trent instead of bringing her into port for adjudication.

The following general conclusions seem to be warranted from a careful examination of the Trent case:

1. The commissioners were not contraband of war in any sense of that term.

2. Their dispatches being of a non-military character were not contraband of war.

3. A neutral power is entitled to hold necessary informal relations with an unrecognized belligerent.

4. The Trent had in no way violated her duties as a neutral ship when she was stopped by the San Jacinto.

5. Captain Wilkes had an undoubted right to stop and search the Trent for contraband of war. In the absence of anything of this character, only resistance to the right of search would have made the Trent liable to capture. As a matter of fact her captain did refuse all facilities for search and made it known that he yielded only to superior force. What view a prize court might have taken of this can be only a matter of conjecture.

6. In any event Captain Wilkes had no right to seize the persons or dispatches of the Confederate commissioners while they were on board the Trent on the high seas.

7. Viewed solely from the standpoint of international law, sound reasons were not given for the surrender of the commissioners by Secretary Seward.

Mr. Blaine says: “It is not believed that the doctrine announced by Mr. Seward can be maintained on sound principles of international law. The restoration of the envoys on any such apparently insufficient basis did not avoid the mortification of the surrender; it only deprived us of the fuller credit and advantage which we might have secured from the act. It is to be regretted that we did not place the restoration of the prisoners upon franker and truer ground, viz., that their seizure was in violation of the principles which we would not abandon either for a temporary advantage or to save the wounding of our national pride.”⁠[16]

Viewed from any standpoint Mr. Seward’s position is untenable. If it had prevailed and had been fully recognized as a doctrine of international law, a backward step in maritime affairs would have been taken. Instead of enlarged rights for neutrals and a greater freedom upon the ocean, there would have been a return toward the narrow and illiberal maritime policy which prevailed during the Napoleonic wars. Reprisals would have been invited; naval commanders everywhere would have been transformed into admiralty judges; and every neutral deck would have been liable to be changed into “a floating judgment-seat.” American maritime policy and principle would have been reversed.

The right to capture the Confederate commissioners seemed very dear to the people of the North. By the surrender of the captured persons, all of the immediate results of the seizure were lost. Although the sacrifice seemed a grievous one, yet the apparently unfavorable outcome of the whole matter, from the standpoint of international law, was a benefit not only to the United States but to the world. It was a vindication of the principle for which America had always contended. England having committed herself to the American doctrine, it became, in this unexpected manner, firmly and forever imbedded in the principles of international law. A triumph was thus realized, for there remained not a single nation in all the world to dispute this principle.

AUTHORITIES AND REFERENCES.

1. Adams, J. Q.: Memoirs, Vol. V.

2. Admiralty Reports, Edwards’s and Robinson’s.

3. American Law Review, Vol. V.

4. Bernard, Montague: Neutrality of Great Britain during the American Civil War.

5. Blaine, James G.: Twenty Years of Congress, Vol. I.

6. Dana’s Wheaton’s International Law.

7. Edinburgh Review, January, 1862.

8. Grotius: De Jure Belli et Pacis.

9. Hall, W. E.: International Law.

10. Hautefeuille, M.: Questions of Maritime International Law.

11. Hunt’s Merchant Magazine, Vol. XLVI.

12. Marquardsen, Heinrich Dr.: Der Trent Fall.

13. North American Review, January, 1862, and July, 1862.

14. Nys, M.: La Guerre Maritime, p. 46.

15. Quarterly Review, January, 1862.

16. Seward, W. H.: Works of, Vol. V.

17. Southern Law Review, Vol. VIII.

18. Sumner, Charles: Speech in U. S. Senate, Jan. 9, 1862.

19. Westminster Review, January, 1862.

20. Woolsey, T. D.: Introduction to the Study of International Law.

21. Wharton, Francis: Digest of the International Law of the United States.

22. Vattel, M.: The Law of Nations, Book IV.