Imagens das páginas
PDF
ePub

.

[ocr errors]

subject, have but confirmed the impression which I then received of the solidity of this distinction.

" It has been asked, What are despatches ? To which, I think, this answer may safely be returned: that they are all official communications of official persons on the public affairs of the government. The comparative importance of the particular papers is immaterial, since the court will not construct a scale of relative importance, which in fact it has not the means of doing, with any degree of accuracy, or with satisfaction to itself. It is sufficient, that they relate to the public business of the enemy, be it great or small. ... It is not to be said, therefore, that this or that letter is of small moment; the true criterion will be, Is it on the public business of the state, and passing between public persons for the public service? That is the question.

. . But if the papers so taken relate to public concerns, be they great or small, civil or military, the court will not split hairs, and consider their relative importance. .

“The circumstances of the present case, however, do not bring it within the range of these considerations, because it is not the case of despatches coming from any port of the enemy's territory, whose commerce and communications of every kind the other belligerent has a right to interrupt. They are despatches from persons who are in a peculiar manner the favorite objects of the protection of the law of nations, ambassadors, resident in a neutral country, for the purpose of preserving the relations of amity between that state and his own government.

“It has been argued truly, that, whatever the necessities of the negotiation may be, a private merchant is under no obligation to be the carrier of the enemy's despatches to his own country. Certainly he is not: and one inconvenience, to which he may be held fairly subject, is that of having his vessel brought in for examination, and of the necessary detention and expense. He gives the captors an undeniable right to intercept and examine the nature and contents of the papers which he is carrying; for they may be papers of an injurious tendency, although not such, on any a priori presumption, as to subject the party who carries them to the penalty of confiscation, and by giving the captors the right of that inquiry, he must submit to all the inconvenience that may attend it. Ship and cargo restored on payment of captors' expense.

It will be found, we think, from a careful examination of these opinions, that the general principle applicable to the case is, that the subject or citizen of the neutral nation may not do anything directly auxiliary to the warlike purposes of a belligerent, or, as it is expressed in other words, anything which has a direct tendency to promote his warlike operations; and that the transportation of agents whose business is to promote or facilitate any hostile operations, or of despatches which have, or may be presumed to have, a hostile character, is a rendition of aid to the belligerent which justifies the capture of the persons and despatches, and if done with knowledge, actual or constructive, is such a violation of neutrality as authorizes the capture and confiscation of the neutral vessel.

Speaking of the right of search, it has been said: “The only security that nothing is to be found inconsistent with amity and the law of nations is the right of personal visitation and search, to be exercised by those who have an interest in making it.” We have here another expression of the general principle which regulates neutral rights and duties. It is not merely that the neutral is not warranted in carrying this or that article, or this or that person. He is not to carry anything which is inconsistent with the amity which subsists between his nation and the belligerent, and which he should maintain toward the belligerent.

Having ascertained the principles which are applicable, we turn again to the facts of this case. Probably no one doubts that Messrs. Mason and Slidell were the public agents of the Confederate States, charged with all manner of duties of a belligerent character. But Great Britain may reasonably ask for some evidence of the fact, as a justification for their removal from the Trent. The proof will doubtless be found to be abundant, but our space permits only two or three suggestions. In the first place, there is the message of Mr. Davis, in which he states that they are commissioned, and speaks of them as “Ministers,” showing them to be public agents for the promotion of the interests of the revolutionary government. In the next place, there is a conclusive presumption that their agency was of a belligerent character, because the people of the Confederate States, being in rebellion, waging a civil war, and acknowledged only as a belligerent power, whatever is to be done for their success is necessarily of a belligerent character. The voyage of their agents to Europe was “directly auxiliary to the warlike purposes” of the Confederacy, and as hostile as if they had been officers or soldiers on their way to aid the enemy. An attempt merely to procure an acknowledgment of the independence of the Confederate States, while the United States are surrounding them with forces by land and sea, is of itself an act of hostility to the United States. The object could only be encouragement and aid in the prosecution of the war, as there is no practical independence. Similar remarks apply to the despatches. That such documents were on board is not now concealed. The failure of Captain Wilkes to find them has been a matter of exultation. Lieutenant Fairfax was not bound to search for them after the captain of the Trent refused to show his passenger list or to give any information. He might well suppose that they were then beyond reasonable search, perhaps concealed by some of the ladies connected with the agency, in what the Boston Post, speaking of the secret transmission of traitorous correspondence by Secession ladies in the vicinity of Washington, termed “the holy precincts of their nether garments.” The Confederate States had no minister, nor any consul, in Europe; but they had agents there actively attempting to procure an acknowledgment of their independence, and engaged in purchasing and transmitting munitions of war to the Southern ports. The despatches, then, must be presumed to relate to these subjects. The fact that the voyage of the neutral vessel was from one neutral port to another would not have exempted these persons from capture, even if they had been ambassadors from a recognized nation, their mission being of a hostile character. A fortiori, it cannot exempt them when they are mere agents. The character of hostility which necessarily attaches to them as the public agents of a mere belligerent power, proceeding with despatches which from the nature of the case must be presumed to be to hostile agents and for hostile purposes, shows a right to capture them, even if an ambassador might be exempted on such a voyage because he was a “middleman.” We have the distinct opinion of Sir William Scott that the transportation of civilians may be ground of forfeiture. The neutral vessel was rendering aid in the accomplishment of these hostile purposes, just as much as she would have been if her voyage had been direct from the belligerent port. The neutral right, therefore, cannot protect the hostile agent, whether there was or was not knowledge. The want of knowledge might protect the vessel. But here was ample evidence to charge the captain of the Trent with full knowledge of the character of hostility; and it may probably be shown that the embarkation at Havana was with sufficient pomp and circumstance to constitute plenary evidence, if there were no other." The Trent was a private passenger packet, with the advantage of a contract to carry the mails. She was a common carrier of passengers, and perhaps of goods also, but had no more of the character of a government vessel than the railroad car which carries the mail and the mail-agent, under a contract with the postmaster-general, has the character of a government vehicle. She was therefore liable, under the circumstances, to capture, and to confiscation also. But here comes another, and it would seem, from recent suggestions, the main point to be considered. The Trent was

* See Appendix, Note B.

not captured. It is said that for this reason the proceedings are all irregular, and that a demand for a delivery of the prisoners is to be made by the British government, founded upon the neglect to make the capture, and the consequent lack of any proof of a right to take the persons. This is quite too narrow a view of the matter, and we shall not believe, until we have demonstrative assurance, that the law officers of the Crown will place themselves upon such a small and slippery foundation. We shall not enlarge upon the ill grace with which Great Britain would urge the objection, not that Mason and Slidell could not be taken, but that Captain Wilkes did not capture the steamer, send her in for trial and confiscation, and in so doing delay her Majesty's mails, and derange the business of all the passengers and others concerned in the regular trip of the vessel, — that there was therefore no adjudication of a prize court to show that the persons could be captured, and no other evidence would be received. Nor need we show what a gross outrage it would be to fasten a quarrel upon the nation whose officer had been guilty of such an act of comity and favor. If blood ever cries to Heaven for vengeance, it would be the blood shed in a war having such a foundation. And if all Christendom did not cry, Shame! it would show that the part of it which failed in the performance of that duty to humanity had lost all consciousness of the difference between right and wrong. Such a failure to do Great Britain an injury may possibly be made a pretext for war. It can never be the foundation of a point of honor, requiring an apology.

But it is argued, that in no other way than by sending in the vessel can it be shown by regular proof that the right to seize these persons existed; and therefore, that, by reason of the failure to send in the vessel, we cannot establish the right of seizure. It is alleged that it has always been the law of the world, that every cruiser making a seizure on board of a vessel shall bring the vessel in, and subject the lawfulness of

« AnteriorContinuar »