The Sun.
London, England, 1862-01-13 00:00:00

suitable apology for the aggression which has been
committed.

Should these terms not be offered by Mr. Feward
you will propose them to him.
You are at liberty to read this despa'eh to the
Secretary of State, and, if he shall &ire it, you
will give him a copy of it —I am, &c.,
RUSSELL.
To the Lord Lyons, K.C.8., &e.

MR. SEWARD TO LORD LYONS.

Department of State, Washington, Dee, 26,1861.

My Lord,—Earl Russell's despatch of the 30th of
November, a copy of which you have left with
me at my request, is of the following effect—
namely :—That a letter of Commander Williams,
dated Royal mail contract boat Trent, at sea, Nov.
9, states that that vessel left Havannah on the 7th
of November with her Majesty's mails for England,
Mtving on board numerous passengers.
Shortly after noon, on the Bth of November, the
United States' war steamer San Jacinto, Captain
Wilkes, not showing colours, was observed ahead.
The steamer, on being neared by the Trent, at 1 15
in the afternoon, fired a round shot from a pivot gun
across her bows and showed American colours.
While the Trent was approaching slowly towards
the San Jacinto, she discharged a shell across the
Trent's bows, which exploded at half a cable's
length before her. The Trent then stopped, and
an officer with a large armed guard of Marines
boarded her.

The officer said he had orders to arrest Messrs.
Mason, Slidell, M'Farland, and Eustis, and had
sure information that they were passengers in the
Trent. While some parley was going on upon this
matter, Mr, Slidell stepped forward and said to the
American officer that the four persons he had named
were standing before him, The commander of
the Trent and Commander Williams pro-
tested against the act of taking these four
passengers out of the Trent, they then being under
the protection of the British flag. But the San
Jacinto was at this time only 200 yards distant,
her ship's company at quarters, her ports open and
tompions out, and so resistance was out of the
question.

The four persons beforenamed were then forcibly
taken out of the ship. A farther demand was made
that the commander of the Trent should proceed on
board the San Jacinto, but he said he would not go
unless forcibly compelled likewise, and this demand
was not insisted upon. Upon this statement Earl
Russell remarks that it thus appears that certain
individuals have been forcibly taken from on board
a British vessel, the ship of a neutral Power—while
that vessel was pursuing a lawful and innocent
voyage—an act of violence which was an affront to
the British flag, and a violation of international law.

Earl Russell next says that her Majesty's Go-
vernment, bearing in mind the friendly relations
which have long subsisted between Great Britain
and the United States, are willing to believe that
the naval officer who committed this aggression
was not acting in compliance with any authority
from his Government, or that if he conceived him-
self to be so authorised he greatly misunderstood
the instructions which he received.

Earl Russell argues that the United States must
be fully aware that the British Government could
not allow such an affront on the national honour to
pass without full reparation, and they are willing
to believe that it could not be the deliberate inten-
tion of the Government of the United States unne•
cessarily to force into discussion between the two
Governments a question of so grave a character, and
with regard to which the whole British nation
would be sure to entertain such unanimity of feeling.
Earl Russell, resting upon the statement and the
argument which I have thus recited, closes with
saying that her Majesty's Government trust that
when this matter shall have been brought under
the consideration of the Government of the United
States it will, of its own accord, offer to the British
Government such redress as alone could satisfy
the British nation—namely, the liberation of
the four prisoners taken from the Trent,
and their delivery to your lordship, in order
that they again be placed under British pro-
tection, and a suitable apology for the aggression
which has been committed. Earl Russell finally
instructs you to propose these terms to me, if I should
not first offer them on the part of the Government.
The despatch has been submitted to the President.

The British Government has rightly conjectured,
what it is my duty to state, that Capt. Wilkes, in
conceiving and executing the proceeding in ques-
tion, acted upon his own suggestions of duty, with-
out any direction, or instruction, or even foreknow-
ledge 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 any other British 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 dis-
cussion the question which has arisen, or any other
which could affect in any way the SE nsibilities of the
British nation.

It is true that a round shot was fired by the San
Jacinto from her pivot gun w hen the Trent was ap-
proaching ; but as the facts have been reported to
this Government, the shot was, nevertheless, inten-
tionally fired in a direction so obviously divergent
from the course of the Trent as to be quite as harm-
less as a blanY. shot, while it should be regarded as
a signal. So also we learn that the Trent was not
approaching the San Jacinto slowly when the shell
was fired across her bows, but, on the contrary, the
Trent was, or seemed to be, moving under a full
head of steam, as if with a purpose to pass the San
Jacinto.

We are informed also that the boarding officer
(Lieut. Fairfax) did not board the Trent with a
large armed guard, but he left his Marines in his
boat when he entered the Trent. He stated his in-
structions from Captain Wilkes to search for the
four persons named, in a respectful and courteous,
though decided manner, and he asked the captain of
the Trent to show his passenger list, which was re-
fused. The lieutenant,"as we are informed, did not
employ absolute force in transferring the passen-
gers, but he used just so much as was necessary to
satisfy the parties concerned that refusal or resist-
ance would be unavailing.
So, also, we are informed, that the captain of the
Trent was not any time, or in any way, required
to go on board the San Jacinto.

These modifications of the case, as presented by
Commander Williams, are based upon our official
reports.

I have now to remind your Lordship of some
facts which doubtlessly were omitted by Earl Rus-
sell with the very proper and becoming motive of
allowing them to be brought into the case on the
part of the United States in the way most satisfac-
tory to this Government.

These facts are that at the time the transaction
occurred an insurrection was existing in the United
States, which this Government was engaged in
suppressing by the employment of land and naval
forces ; that in regard to this domestic strife the
United States considered Great Britain as a friendly
Power, while she has assumed for herself the atti-
tude of a neutral ; and that Spain was considered
in the same light, and had assumed the same atti-
tude as Great Britain.

It has been settled by correspondence that the
United States and Great Britain nautuAlly recog-
nised as applicable to this local strife these two
articles of the declaration made by the Congress of
Paris in 1856—namely, that the neutral or friendly
flag should cover enemy's goods not contraband of
war, and that neutral goods, not contraband of war,
are not liable to capture under an enemy's flag.
These exceptions of contraband from favour were
a negative acceptance by the parties of the rule
hitherto everywhere recognised as a part of the law
of nations, that whatever is contraband is liable to
capture and confiscation in all cases.
James M. Mason and MTarland are citizens of
the United States and residents of Virginia.
John Slidell and George Eustis are citizens of the
United States and residents of Louisiana.
It was well known at Havannah, when these
parties embarked on the Trent, that James M.
Mason was proceeding to England in the affected
character of a Minister Plenipotentiary to the
Court of St. Junes, and®r pretended =lanais.

sion from Jefferson Davis, who had assumed to be
President of the insurrectionary 'party in the United
States ; and M?Farland was going with him in a
like unreal character of Secretary of Legation to
the pretended mission.
John Slidell, in similar circumstances, was going
to Paris as a pretended Minister to the Emperor of
the French, and George Eustis was the chosen Sec-
retary of Legation for that stimulated mission.

The fact that these persons had assumed such
characters has been since avowed by the same Jeffer-
son Davis in a pretended message to an unlawful
and insurrectionary Congress. It was, as we think,
rightly presued that these Ministers bore pretended
credentials and instructions, and such papers are,
in the law, knows as despatches. We are informed
by our Consul at Paris that these despatches, having
escaped the search of the Trent, were actually con-
veyed and delivered to emissaries of the insurrec,
tion in England.
Although it is not essential, yet it is proper to
state, as I do also upon information and belief, that
the owner and agent, and all the officers of the
Trent, including the commander Williams, had
knowledge of the assumed characters and purposes
of the persons before named when they embarked
on that vessel.

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 state-
ment of it that went up to the British Government,
was undertaken as a simple, legal, customary, and
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 in-
surgents.

The question before us is whether this proceeding
was authorised by and conducted according to the
law of nations.

It involves the following inquiries :-
Ist. Were the persons named and their supposed
despatches contraband of war ?
2d. Might Captain Wilkes lawfully stop and
search the Trent for these contraband persons and
despatches ?
3d. Did he exercise that right in a lawful and
proper manner ?
4th. Having found the contraband persons on
board and in presumed possession of the contraband
despatches, had he a right to capture the persons?
sth. Did he exercise that right of capture in the
manner allowed and recognised by the law of
nations ?

If all these inquiries shall be resolved in the
affirmative, the British Government will have no
claim for reparation.
I address myself to the first inquiry, namely;—
Were the four persons mentioned and their sup-
posed 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. Bat persons as well
as property may become contraband, since the word
means broadly, " contrary to proclamation, pro-
hibited, illegal, unlawful." 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 Ambas-
sador 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 an usurping Power, not recognised as
legal by either the belligerent or the neutral, could
be held to be contraband. Bat 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 were
arrested and detained as contraband, says—
" It appears to me, on principle, to be but reason -
able that when 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 against the vessel that
may be let out for a purpose so intimately connected
with hostile operations."

I trust that I have shown that the four persons
who were taken from the Tient by Captain Wilkes,
and their despatches, were contraband of war.
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 con-
tract or merchant vessel, a common carrier; for
here maritime law knows only three classes of ves-
sels—vessels of war, revenue vessels, and merchant
vessels. The Trent falls within the latter class.
Whatever disputes have existed about a right of
visitation or search in time of peace, none, it is sup-
posed, has existed in modern times about the rights
of a belligerent in time of war to capture contra-
band 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 in the
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 s
of the belligerent Power.

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 al-
ready passed away before the modifications of that
statement which I have already submitted.

I proceed to the fourth inquiry—namely, having
found the suspected contraband 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
recognised object of the permitted visitation and
search. The principle of the law is that the belli-
gerent exposed to danger may prevent the contra-
band persons or things from applyingkthemselves 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 pre-
scribes for disposing of the contraband when you
havo found and seized it on board of the neutral
vessel ?

The answer would be easily found if the question
were, What shall you do with the contraband ves-
sel ? 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 ques-
tions of belligerency, neutrality, contraband, and
capture. So again, you will 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 ?
But the question -.here concerns the mode of pro-
cedure in regard not to the vessel that was carrying
the contraband, nor yet to the contraband things
which worked the forfeiture of the vessel, but to
contraband persons,
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 carrier from
proceeding on his unlawful voyage and reaching
the destined scene of his injurious service. But, on
the other hand, the person captured may be inno-
cent—that is, he may not be contraband.
He therefore has a right to a fair trial of the ac-
cusation 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 inno-
cent, as its justice is pledged to his surrender if he
is really contraband.

Here Are coatlicting claims, inTolTing iperaonal