The National Interest and the Trent Case
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…The British government has rightly conjectured, what it is now my duty to state, that Captain Wilkes, in conceiving and executing the proceeding in question, acted upon his own suggestions of duty, without any direction or instruction, or even foreknowledge of it, on the part of this government. No directions had been 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 purpose, but even no thought, of forcing into discussion the question which has arisen, or any other which could affect in any way the sensibilities of the British nation…
Your lordship will now perceive that the case before us, instead of presenting a merely flagrant act of violence on the part of Captain Wilkes, as might well be inferred from the incomplete statement of it that went up to the British government, was undertaken as a simple legal and customary belligerent proceeding by Captain Wilkes to arrest and capture a neutral vessel engaged in carrying contraband of war for the use and benefit of the insurgents.
The question before us is, whether this proceeding was authorized by and conducted according to the law of nations. It involves the following inquiries:
I address myself to the first inquiry, namely, Were the four persons mentioned, and their supposed despatches, contraband?
Maritime law so generally deals, as its professors say, in rem, that is with property, and so seldom with persons, that it seems a straining of the term contraband to apply it to them. But persons, as well as property, may become contraband, since the word means broadly “contrary to proclamation, prohibited, illegal, unlawful.”. . .
The second inquiry is, whether Captain Wilkes had a right by the law of nations to detain and search the Trent.
The Trent, though she carried mails, was a contract or merchant vessel—a common carrier for hire. Maritime law knows only three classes of vessels—vessels of war, revenue vessels, and merchant vessels. The Trent falls within the latter class. Whatever disputes have existed concerning a right of visitation or search in time of peace, none, it is supposed, has existed in modern times about the right of a belligerent in time of war to capture contraband in neutral and even friendly merchant vessels, and of the right of visitation and search, in order to determine whether they are neutral, and are documented as such according to the law of nations.
I 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 question 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 statement of it adopted by the British government, I think it must have already passed away before the modifications of that statement which I have already submitted.
I proceed to the fourth inquiry, namely: Having found the suspected contra-band of war on board the Trent, had Captain Wilkes a right to capture the same?
Such a capture is the chief, if not the only recognized, object of the permitted visitation and search. The principle of the law is, that the belligerent exposed to danger may prevent the contraband persons or things from applying themselves or being applied to the hostile uses or purposes designed. The law is so very liberal in this respect that when contraband is found on board a neutral vessel, not only is the contraband forfeited, but the vessel which is the vehicle of its passage or transportation, being tainted, also becomes contraband, and is subjected to capture and confiscation.
Only the fifth question remains, namely: Did Captain Wilkes exercise the right of capturing the contraband in conformity with the law of nations?
It is just here that the difficulties of the case begin. What is the manner which the law of nations prescribes for disposing of the contraband when you have found and seized it on board of the neutral vessel? The answer would be easily found if the question were what you shall do with the contraband vessel. You must take or send her into a convenient port, and subject her to a judicial prosecution there in admiralty, which will try and decide the questions of belligerency, neutrality, contraband, and capture. So, again, you would promptly find the same answer if the question were, What is the manner of proceeding prescribed by the law of nations in regard to the contraband, if it be property or things of material or pecuniary value? . .
In the present case, Captain Wilkes, after capturing the contraband persons and making prize of the Trent in what seems to be 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 thus 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 separate or distinct transactions under the law of nations, but as one transaction, one capture only, then it follows that the capture in this case was left unfinished, or was abandoned. Whether the United States have a right to retain the chief public benefits of it, namely, the custody of the captured persons on proving them to be contraband, will depend upon the preliminary question whether the leaving of the transaction unfinished was necessary, or whether it was unnecessary, and therefore voluntary. If it was necessary, Great Britain, as we suppose, must, of course, waive the defect, and the consequent failure of the judicial remedy. On the other hand it is not seen how the United States can insist upon her waiver of that judicial remedy, if the defect of the capture resulted from an act of Captain Wilkes, which would be a fault on their own side.
Captain Wilkes has presented to this government his reasons for releasing the Trent. “I forbore 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 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 interest 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 I had obtained the important end I had in view, and which affected the interest of our country and interrupted the action of that of the Confederates.”. . .
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 the 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.
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. . .
I have not been unaware that, in examining this question, I have fallen into an argument for what seems to be the British side of it 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 developed the resources of a continent, and, thus becoming a considerable maritime power, have won the respect and confidence of many nations. These principles 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 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…
If 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 cannot 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. We are asked to do to the British nation just what we have always insisted all nations ought to do to us.
The claim of the British government is not made in a discourteous manner. This government, since its first organization, has never used more guarded language in a similar case.
In coming to my conclusion 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 comparative unimportance of the captured persons themselves, when dispassionately weighed, happily forbid me from resorting to this defence.
Nor am I unaware that American citizens are not in any case to be unnecessarily surrendered for any purpose into the keeping of a foreign state. Only the captured persons, however, or others who are interested in them, could justly raise a question on that ground. . . .
The four persons in question are now held in military custody at Fort Warren, in the State of Massachusetts. They will be cheerfully liberated. Your lordship will please indicate a time and place for receiving them.