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

suitable apology for the aggression which has been
committed.

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 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, known 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 iusurrec•
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.

Should these terms not be offered by Mr. Feward
you will propose them to him.

- You are at liberty to read this despa'ch to the
Secretary of State, and, if he shall de-ire it, you
will give him a copy of it.—l am, &c.,
RUSSELL.

To the Lord Lyons, K.C.8., &c.

MR. SEWARD TO LORD LYONS.

Department of State, Washington, Dec. 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,
having 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.

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 officer said he had orders to arrest Messrs.
Mason, Slidell, Warland, 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 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 ?

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.

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 tho term
contraband to apply it to them. But 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 out 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.

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 tome, if I should
not first offer them on the part of the Government.
The despatch has been submitted to the President.

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. 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 were
arrested and detained as contraband, says—
" It appears to me, on principle, to be but reason-
able that when it is of sufficient importanco 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 Trent 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 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 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 rights
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 1 have already submitted.

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-
eussion the question which has arisen, or any other
which could affect in any way the sensibilities 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 blank 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.

Wo are informed also that the boarding officer
(Lieut. Fairfax) did not board the Trent with a
large armed guard, but be 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 aro 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 mutually 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,
arc 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 M'Farland 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. James's, under a pretended commis-

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 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 rcn:ains—namely, Did
Captain Wilkes exercise the right of capturing the
contraband in conformity with the law of nations?
It is just hero 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
have 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 conflicting claims, involving 'personal

k THE SUN, LONDON, MONDAY EVENING, JA NUA '1862.

liberty, life, honour, and duty. Here are convicting
national claims, involving welfare, safety, honour,
and empire. They require a tribunal and a trial.
The captors and the captured are equals; the neu-
trals and the belligerent State are equals.

While the law authorities were found silent it
was suggested at an early day by this Government
that you should take the captured persons into a
convenient port and institute judicial proceedings
there to try the controversy. But only Courts of
Admiralty have jurisdiction in maritime cases, and
these Courts have formulas to try only claims to
contraband chattels, but none to try claims con-
cerning contraband persons. The Courts can enter-
tain no proceedings aid render no judgment in
favour or against the alleged contraband men,
It was replied, el this is true; but you can reach
in these courts a decision which will have the moral
weight of a judicial one, by a circuitous proceed-
ing. Convey the snspected men together with the
suspected vessel, into port, and try there the ques-
tion where the vessel is contraband. Yon can prove
it to be so by proving the suspected men to be con-
traband, and the Court must then detei mine the
vessel to be contraband.

If the men are not contraband the vessel will
escape condemnation. Still there is no judgment for
or against the captured persons. But it was assumed
that there would result from the determination of
the Court concerning the vessel a legal certainty
concerning the character of the men. This course
of proceeding seemed opened to many objections. It
elevates the incidental inferior private interests into
the proper place of the main paramount public one,
and possibly it may make the fortunes, the safety,
or the existence of a nation depend on the accident
of a merely personal and pecuniary litigation.
Moreover, when the judgment of the Prize Court
upon the lawfulness of the capture of the vessels is
rendered it really concludes nothing, and binds
neither the belligerent State nor the neutral upon
the great question of the disposition to be made of
the captured contraband persons. That question is
still to be really determined, if at all, by diplomatic
arrangement or by war.
One may well express his surprise when told
that the law of nations has furnished no more
reasonable, practical, and perfect mode than this of
determining questions of such grave import between
Sovereign Powers. The regret we may feel on the
occasion is, nevertheless, modified by the reflection
that the difficulty is not altogether anomalous.
Similar and equal deficiencies are foind in every
system of municipal law, especially in the system
which exists in the greater portions of Great Bri-
tain and the United States. The title to personal
property can hardly ever be resolved by a Court
without resorting to the fiction that the claimant
has lost and the possessor has found it ; and the title
of real estate is disputed by real litigants under the
names of imaginary persons.
It must be confessed, however, that while all
aggrieved nations demand and all impartial ones
concede the need of some form of judicial process
in determining the characters of contraband per-
sons, no form but the illogical and circuitous one
thus described exists, nor has any other yet been
suggested. Practically, therefore, the choice is
between that judicial remedy or no judicial remedy
whatever.

If there be no judicial remedy, the result is that
the question must be determined by the captor
himself on the deck of the prize vessel. Very grave
objections are against such a course. The captor is
armed, the neutral is unarmed. The captor is inte-
rested, prejudiced, and perhaps violent; the neutral,
if truly neutral, is disinterested, subdued, and
helpless. _ _

The tribunal is irresponsible, while its judgment
is carried into instant execution. The captured
party is compelled to submit, though bound by no
legal, moral, or treaty obligation to acquiesce. Re-
paration is distant and problematical, and depends
at last on the justice, magnanimity, or weakness of
the State in whose behalf and by whose authority
the capture was made.
Out of these disputes reprisals and wars neces-
sarily arise, and these are so frequent and destruc-
tive that it may well be doubted whether this form
of remedy is not a greater social evil than all that
could follow if the belligerent right of search were
universally renounced and abolished for ever. But
carry the case one step further.
What if the State that has made the capture un-
reasonably refuses to hear the complaint of the neu-
tral or to redress it ? In that case the very act of
capture would be an act of war, of war begun with-
out notice, and possibly entirely without provoca-
tion.

I think all unprejudiced minds will agree that,
imperfect as the existing 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 rely-
ing upon diplomatic debates to review his decision.
Practically it is a question of choice between law,
with its imperfections and delays, and war, with its
evils and desolations.

Nor is it ever to be forgotten that neutrality,
honestly and justly preserved, is always the har-
binger of peace, and is therefore the common inte-
rest of nations, which is only saying that it is the
interest of humanity itself.
At the same time it is not to be denied that it
may sometimes happen that the judicial remedy
will become impqssible—as by the shipwreck of
the prize vessel, or other circumstances, which
excuse the captor, from sending or taking her into
port for confiscation. In such a case the right of
the captor to the custody of the captured persons,
and to dispose of them, if they are really contra-
band, so as to defeat their unlawful purposes, can-
not reasonably be denied.
What rule shall be applied in such a case ? Clearly
the captor ought to be required to show that the
failure of the judicial remedy results from circum-
stances beyond his control and without his fault.
Otherwise he would be allowed to derive advantage
from a wrongful act of his own.

In the present case, Captain Wilkes, after captur-
ing the contraband persons and making prize of the
Trent in what seems to us a perfectly lawful man-
ner, instead of sending her into' port, released her
from the capture, and permitted—her to proceed
with her whole cargo upon her voyage.

Me thus effectually prevented the judicial exami-
nation 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 separable or distinct transactions under
the law of nations, but as one transaction, one cap-
ture only, then it follows that the capture in this
Cabe 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 con-
traband, 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 necestary, Great
Britain, as we supplse, must of course waive the
defect, and the consequent failure of the judi.Aal
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 owu side.

Captain Wilkes has presented to this Govern-
ment his reasons for releasing the Trent.
" I forbore to seize her," he says, "in conse-
quence of my being so reduced in officers and crew,
and the derangement it would cause innocent per-
sons, there being a large number of passengers
who would have been put to great loss and inconve-
nience, as well as disappointment from the in ter-
ruption it would have caused them in not being
able to join the steamer from St. Thomas to Europe.

I therefore concluded to sacrifice the interests
of my officers and crew in the prize, and suffered
her to proceed, after the detention necessary to
effect the transfer of those Commissioners, consider-
ing I had obtained the important end I had in view,
and which affected the interests of our country and
interrupted the action of that of the Confederates."
I shall consider, first, how these reasons ought to
affect the action of this Government, and, secondly,
how they ought to be expected to affect the action
of Great Britain. The reasons are satisfactory to
this Government, so far as Captain Wilkes is eon-

terned. It could not desire that the San Jacinto,
her officers, and crew should be exposed to danger
and loss by weakening their number to detach a
prize crew to go on board the Trent. Still less
could it disavow the humane motive of preventing
inconveniences, losses, and, perhaps, disaster to the
several hundred innocent passengers found on board
the prize vessel.
Nor could this Government perceive any ground
for questioning the fact that these reasons, though
apparently incongruous, did operate in the mind of
Captain Wilkes, and determiilen him to release
the Trent. Human actions generaiii nrocced
ur on mingled and sometimes conflicting'
motives. He measured the sacrifices which this
decision would cot. It manifestly, however, did
not occur him that beyond the sacrifice of the pri-
vate interests (as he calls them) of his officers and
crew, there might also possibly be a sacrifice even of
the chief and public object of his capture—namely,
the right of his Government to the custody tend
disposition of the captured persons.
This Government cannot censure him fur this
oversight. It confesses that the whole subject
came unforeseen upon the Government, as doubt-
less, it did upon him. Its present convictions on
the point in question are the results of deliberate
examination and deductions now made, and not of
any impressions previously formed.

Nevertheless, the question now is, not whether
Captain Wilkes is justified in what he did, but
what is the present view of the Government as to
the effect of what he has done. Assuming now, for
argument's sake ()lily, that the release of the Trent,
if voluntary, involved a waiver of the claim of the
Government to hold the captured persons, the
United States could in that case have no hesitation
in saying that the act which has thus already been
approved by the Government must be allowed to
draw its legal consequences after it.
It is of the very nature of a gift or a charity that
the giver cannot, after the exercise of his benevo-
lence is past, recall or modify its benefits.
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 Cap-
tain Wilkes—namely, a want of 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 cap-
tured party to acquiesce and go willingly before the
tribunal to whose jurisdiction it appeals.
If the captured party indicated proposes to em-
ploy 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 Capt. Wilkes
for releasing the Trent differs from the first. At
best, therefore, it must be held
,that Capt. Wilkes,
as he explains himself, acted from combined senti-
ments of prudence and generosity, and so that the
release of the prize vessel was not strictly necessary
or involuntary.

Secondly. How ought we to expect these ex-
planations by Capt. Wilkes of his own reasons for
leaving the capture incomplete to affect the action
of the British Government ? The observation upon
this point which first occurs is, that Capt. Wilkes's
explanations were not made to the authorities of the
captured vessel.
If made known to them, they might have ap-
proved and taken the release, upon the condition of
waiving a judicial investigation of the whole trans-
action, or they might have refused to accept the re-
lease upon that condition.
But the case is one not with them but with the
British Government. If we claim that Great Bri-
tain ought not to insist that a judicial trial has been
lost because we voluntarily released the offending
vessel out of consideration for her innocent passen-
gers, I do not see how she is to be bound to acquiese
in the decision -which was thus made by us without
necessity on onr part, and without knowledge of
conditions or consent on her own.

The question between Great Britain and ourselves
thus stated, would be a question, not of right and
of law, but of favour to be conceded by her to us in
return for favours shown by us to her, of the value
of which favours on both sides we ourselves shall be
the judge.
Of course the United States could have no thought
of raising such a question in any case.

I trust I have shown to the satisfaction of the
British Government, by a very simple and natural
statement of the facts and analysis of the law ap-
plicable to them, that this Government has neither
meditated, nor practised, nor approved any deli-
berate wrong in the transaction to which they have
called its attention ; and, on the contrary, that what
has happened has been simply an inadvertency,
consisting in a departure by the naval officer, free
from any wrongful motive, from a rule uncertainly
established, and probably by the several parties
concerned either imperfectly understood or entirely
unknown.

For this error the British Government has a right
to expect the same reparation that we, as an inde-
pendent State, should expect from Great Britain,
or from any other friendly nation in a similar case.
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 lam relieved from all embarrass-
ment on that subject.
I had hardly fallen into that line of argument,
when I discovered that I was really defending and
maintaining not an exclusive) British interest,
but an old, honoured, and cherished American
cause, not upon British authorities, but upon prin-
ciples that constitute a large portion of the distinc-
tive policy by which the United States have deve-
loped the resources of a continent, and thus becom-
ing 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 instruc-
tions given to James Monroe, our Minister to Eng-
land.

Although the ease before him concerned a descrip-
tion of persons different from those who are inci-
dentally subjects of the present discussion, the
ground he assumed then is the same I now occupy,
and the arguments by which he sustained himself
uponit have been an inspiration to me in preparing
this reply.
" Wherever," he says, " property found in a
neutral is supposed to be liable, on any ground, to
capture and condemnation, the rule in all cases is
that the question shall not be decided by the cap-
tor, but be carried before a legal tribunal, where a
regular trial may be had, and where the captor him-
self is liable to damages for an abuse of his power."
Can it be reasonable then, or just, that a belli-
gerent commander who is thus restricted and thus
responsible in a case of mere property of trivial
amount, should be permitted without recurring to
any tribunal whatever, to examine the crew of a
neutral vessel, to decide the important question of
their respective allegiances, and to carry that deci-
sion into execution by forcing every individual he
may choose into a service abhorrent to his feelings,
cutting him off from his most tender connexions, ex-
posing his mind and his person to the most humilia-
ting;discipline, and his life itself to the greatest
danger? Reason, justice, and humanity unite in
protesting against so extravagant a proceeding.

If I decide this case in favour of my own Govern-
ment I must disallow its most cherished principles,
and reverse and abandon for ever 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.

We are asked to do to the British nation just what
we have always insisted all nations ought to do to

The claim of the British Government is not made
in a discourteous manner, This Government, since