The Daily Dispatch: January 4, 1862., [Electronic resource]

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The surrender of Mason and Slidell.

official correspondence between Secretary Seward and Lord Lyons.

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The following important correspondence between Secretary Seward and the British Minister at Washington, relative to the surrender of our Commissioners, Messrs. Mason and Slidell, appeared originally in the National Intelligencer of Saturday last:

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Mr. Seward to Mr. Adams--(Extract.)

Your confidential note of the 15th of November, not marked as a dispatch, has been submitted to the President, and I hasten to reply to it in time for Wednesday's mail.

No Minister ever spoke or acted more wisely, in a crisis which excited deep public solicitude, than you did on the occasion of the Lord Mayor's dinner, We are impressed very favorably by Lord Palmerston's conversation with you. You spoke the simple fact when you told him that the life of this insurrection is sustained by the hopes of recognition in Great Britain and in France. It would perish in ninety days, if these hopes should cease. I have never for a moment believed that such a recognition could take place without producing immediately a war between the United States and all the recognizing powers. I have not supposed it possible that the British Government could fail to see this, and at the same time I have sincerely believed the Britain Government must, in in its inmost heart, be averse to such a war as I know this Government is.

I am sure that this Government has carefully avoided giving any cause of offence or irritation to Great Britain. But it has seemed to me that the British Government has been inattentive to the currents that seemed to be bringing the two countries into collision.

I infer from Lord Palmerston's remark that the British Government is now awake to the importance of averting possible conflict, and disposed to confer and act with earnestness to that end. If so, we are disposed to meet them in the same spirit, as a nation, chiefly of British lineage, sentiments and sympathies — a civilized and humane nation, a Christian people.

Since that conversation was held, Captain Wilkes, in the steamer San Jacinto has boarded a British colonial steamer, and taken from her deck two insurgents, who were proceeding to Europe on an errand of treason against their own country. This is a new incident, unknown and unforeseen, at least in its circumstances, by Lord Palmerston. It is to be met and disposed or by the two governments, if possible, in the spirit to which I have adverted. Lord Lyons has prudently refrained from opening the subject to me; as, I presume, waiting for instructions from home. We have done nothing on the subject to anticipate the discussion, and we have not furnished you with any explanations. We adhere to that course now because we think it more prudent that the ground taken by the British Government should be first made known to us here, and that the discussion, if there must be one, shall be had here. It is proper, however, that you should know one fact in the case, without indicating that we attach importance to it, namely, that in the capture of Messrs. Mason and Slidell on board a British vessel, Captain Wilkes having acted without any instructions from the government, the subject is, therefore, free from the embarrassment which might have resulted if the act had been specially directed by us.

I trust that the British Government will consider the subject in a friendly temper, and it may expect the best disposition on the part of this Government.

Although this is a confidential note, I shall not object to your reading it to Earl Russell and Lord Palmerston, if you deem it expedient.

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Earl Russell to Lord Lyons.

--Intelligence of a very grave nature has reached Her Majesty's Government.

The intelligence was conveyed officially to the knowledge of the Admiralty by Commander Williams, agent for mails on board the contract steamer Trent.

It appears from the letter of Commander Williams, dated ‘"Royal Mail Contract Packet ‘ "Trent,"’ at sea, Nov. 9th,"’ that the ‘"Trent"’ left Havana on the 7th instant, with Her Majesty's mails for England, having on board numerous passengers. Commander Williams states that shortly after noon on the 8th, a steamer, having the appearance of a man-of-war, but showing no-colors; was observed ahead. On nearing her, at 1.15 P. M., she fired a round shot from her pivot gun across the bows of the Trent, and showed American colors. While the Trent was approaching her slowly, the American vessel discharged a shell across the bows of the Trent, exploding half a cable's length ahead of her. The Trent then stopped, and an officer with a large armed guard of marines boarded her. The officer demanded a list of the passengers, and compliance with this demand being refused, the officer said he had orders to arrest Messrs. Mason, Slidell, McFarlane and Eustis, and that he had sure information of their being passengers in the Trent. While some parley was going on upon this matter, Mr. Slidell stepped forward and told the American officer that the four persons he had named were then standing before him. The commander of the Trent and commander Williams protested against the act of taking by force out of the Trent those four passengers, then under the protection of the British flag. But the San Jacinto was at that time only two hundred yards from the Trent, her ship's company at quarters, her ports open, and tompions out. Resistance was, therefore, out of the question, and the four gentlemen, before named, were forcibly taken out of the ship. A further 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.

It thus appears that certain individuals have been forcibly taken from on board a British, vessel, the ship of a neutral power, while such vessel was pursuing a lawful and innocent voyage, and act of violence which was an affront to the British flag, and a violation of international law.

Her Majesty's Government, bearing in mind the friendly relations which have long subsisted between the United States and Great Britain, are willing to believe that the United States officer who committed the aggression, was not acting in compliance with any authority from his government, or that, if he conceived himself to be so authorized, he greatly misunderstood the instructions which he had received. For the government of the United States must be fully aware that the British Government could not allow such an affront to the national honor to pass without full reparation, and Her Majesty's Government are unwilling to believe that it could be the deliberate intention of the government of the United States unnecessarily 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.

Her Majesty's Government trust, there fore, that when this matter shall have been brought under the consideration of the government of the United States that government will of its own accord offer to the British Government such redress as alone could satisfy a British nation, namely, the liberation of the four gentleman and their delivery to your lordship, in order that they may again be placed under British protection, and a suitable apology for the aggression which has been committed.

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

You are at liberty to read this dispatch to the Secretary of State, and if he shall desire it, you will give him a copy of it.

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Mr. Seward to Lord Lyons.

Earl Russell's dispatch of November 30th, a copy of which you have left with me at my request, is of the following effect, viz:

That a letter of Commander Williams, dated "Royal mail contract boat Trent at sea, November 9th, states that thatvessel left Havana on the 7th of November, with her Majesty's mails for England, having on board numerous passengers. Shortly after noon on the 8th of November the United States war steamer San Jacinto, Captain Wilkes, not showing colors, was observed ahead. The steamer upon being neared by the Trent, at 1:16 in the afternoon, fired around shot from a pivoted gun across her bows, and showed American colors. 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, McFarlane, and Eustis, and had sure information that they were passengers in the Trent. While some parley was going on upon this matter Mr. Slidell stopped forward, and said to the American officer that the four person he had named were standing before him. The commander of the Trent and Commander Williams protested against the act of taking those four passengers out of the Trent, they being under protection of his British flag. But the San Jacinto was at this time only two hundred yards off, her ship's company at quarters, her ports open and tompions out, and so resistance was out of the question. The four persons before named were then forcibly taken out of the ship. A further 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, and 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 Government 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 himself to be so authorized he greatly misunderstood the instructions he had received.

Earl Russell argues that the United States must be fully aware that the British Government could not allow such an affront to the national honor to pass without full reparation, and they are willing to believe that it could not be the deliberate intention of the United States unnecessarily 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 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 us could alone satisfy the British nation, viz: the liberation of the four prisoners taken from the Trent, and their delivery to your Lordship, in order that they may again be placed under British protection, and a suitable apology for the aggression which has been committed. Earl Russell finally instructs you to propose those terms to me, if I should not first offer them on the part of the Government.

This dispatch has been submitted to the President.

The British Government has rightly conjectured that it is now my duty to state that Capt. Wilkes, in conceiving and executing the proceedings 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 direction had been given to him or any other naval officer to arrest the four person 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 else where. The British Government will justly infer from these fact 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 effect in any way, the sensibilities of the British nation.

It is true that a round shot was fired by the San Jacinto from the pivot gun when the Trent was distantly approaching; but, as the facts have been reported to this Government the shot was nevertheless intentionally fired in a direction so obviously divergent from the course of the Treat, as to be quite as harmless 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 bow; but, on the contrary, the Trent was, or seemed to be, moving under a full head of steam, as it 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 showed his instructions from Captain Wilkes to search for the four prisoners named in a respectful and courteous though decided manner, and he asked the captain of the Trent to show his passenger list, which was refused. The Lieutenant, as we are informed, did not employ absolute force in transferring the passenger, but he used just so much as was necessary to satisfy the parties concerned that refusal or resistance would be unavailing.

So also we are informed that the captain of the Trent was not at 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 car official reports.

I have now to remind your Lordship of some facts which doubtlessly were omitted by Earl Russell, with the very proper an becoming motive of allowing them to be brought into the case on the part of the United States in the way most satisfactory 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 had assumed for herself the attitude of a neutral, and that Spain was considered in the same light and had assumed the same attitude as Great Britain.

It has been settled by correspondence that the United States and Great Britain mutually recognized as applicable to this local strife these two articles of the declaration made by the Congress of Paris in 1856, viz: 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 favor were a negative acceptance of the parties by the rule hither to every where recognized 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 E. J. MacFarlane 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 in Havana, when these parties embarked in the Trent, that James M. Mason was proceeding to England in the affected character of a Minister Plenipotentiary to the Court of St. James. under a pretended commission from Jefferson Davis, who had assumed to be President of the insurrectionary party in the United States; and E. J. MacFarlane was going with him in a like unreal character of Secretary of Legation to the pretended mission. John Sildell, in similar circumstances, was going to Paris as a pretended Minister to the Emperor of the French, and George Eustis was the chosen Secretary of Legation for that simulated mission. The fact that these persons had assumed such characters, has been avowed by the same Jefferson Davis in a pretended message to an unlawful and insurrectionary Congress, It was, as we think, rightly presumed, that these Ministers bore pretended credentials and instructions, and such paper are in the law known as dispatches. We are informed by our Consulate Paris that these dispatches, having escaped the search of the Trent were actually conveyed and delivered to emissaries of the insurrection in England. Although it is not essential, yet it is proper to state, as I do 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 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 Capt. 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 belligerent proceeding of Capt. 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:

1st. Were the persons named and their supposed dispatches contraband of war.

2d. Might Captain Wilkes lawfully stop and search the Trent for these contraband persons and dispatches?

3d. Might he exercise that right in a lawful and proper manner?

4th. Baring found the contraband persons on board, and in presumed possession of the contraband dispatches, had bearing be to capture the persons?

5th. Did he exercise the right of capture in the manner allowed and recognized by the law of nations?

If all these enquiries shall be resolved in the affirmative, the British Government will have no claim for reparation.

I address myself to the first enquiry, namely were the four persons mentioned, and their supposed dispatches contraband?

Militia law so generally death, as its proffers say, -- ‘that is, with properly, end 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 of "contrary to proclamation, prohibited, 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 ambassador of your enemy on his passages. Dispatches are not less clearly contraband, and the bearers or couriers, who undertake to carry them; are all under the same condemnation.

A subtlety might be raised whether pretended ministers of a usurping power, not recognized as legal by either the belligerent by 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 Wm. Scott speaking of civil magistrates who were arrested and detained as contraband, says:

‘ "It appears to mason 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 shall afford equal ground of forfeiture against the vessel that may be let out for a purpose so intimately connected with the hostile operations"

’ I trust that I have shown that the four persons who were taken from the Trent by Captain Wilkes, and their dispatches, 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 carries the mails, was a contract or merchant vessel — common carrier for hire Maritime, law knows only three classes of vessels — Vessels of war, revenue vessels, and merchant vessels. The Trent falls with in the latter class. What ever disputes have existed concerning the right of visitation or search in time or peace, dolls, it is supposed, has existed in modern times about the right of a belligerent in time of war to capture contraband an neutral and even friendly merchant vessels, and of 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, so I read British authority, is regarded by Great Britain herself, as true maritime law, that the circumstance that the Trent was protecting from a neutral port to another neutral port, dues not modify the right of the belligerent captor.

The third question is, whether Capt. Wilkes exercised the right of search in a lawful and proper manner?

over this print as the case was presented in the statement of it accepted by the British Government, I think it must have already passed away before the modifications of that statement which I have already submitted.

I procreate to the fourth enquiry, namely:--having found the expected contraband on board of 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 belligerents exposed to danger may prevent the contraband person or thing from applying themselves or being applied to the hostile uses or purposes designed. The law is so liberal in this respect that when contraband is found on board 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 Capt. Wilkes exercise the right of capturing the contraband, in conformity with the faith of nations?

The answer would be easily found if the question were what you should do with the contraband vessel. You must take on served 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 properly or things of a material or pecuniary value? but the question here concerns the mode of procedure in regard, not to the vessel that was carrying the contraband, nor yet to 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, of courier, from proceeding in his unlawful voyage and reaching the destined scene of his injurious service. But on the other hand, the persons captured may be innocent — this is, he may not be contraband. He therefore has a right to a fair trial of the accusation 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 he faith of the State is pledged to his safety, if innocent, as its justice is pledge to his surrender if he is really contraband — Here are conflicting claims, involving personal liberty, life, honor, and duty. Here are conflicting national claims, involving welfare, safety, honor, and empire. They require a tribunal and a trial. The captured and the captors are equals; the neutral and belligerent States 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 concerning contraband persons. The Courts can entertain no proceeding and render no judgments in favor of or against the alleged contraband men.

It was replied all this is true; but you can reach in those courts a decision which will have the moral weight of a judicial one by a circuitous proceeding. Convey the suspected vessel, into port, and try the question whether the vessel is contraband. You can prove it to be so by proving the suspected men to be contraband. If the men are not contraband, the men will escape condemnation. Still there is no judgment for or against the captured persons. But it was answered 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 open to many objections. It elevated be incident I inferior private interest 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 accidents of a merely personal and pecuniary illigation. Moreover, When the judgement of the prize court upon the law of the capture of the vessel is tendered, it really concludes nothing, and binds neither the belligerent State nor the neutral upon the great questions of the disposition to be made of the captured contraband persons. That question is still to be really determined. if as all, by diplomatic arrangement or by war.

One may well express his surprise when told that the law of nations has prescribed 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 round in every saylum of municipal law, especially in the saylure which exists in the greater portion of Great Britain and the United States.

The title to personal property can hardly ever be resolved by court without resorting to the fiction that the claimant has lost and the possessor has found it, and she tittle to real estate is disputed by redlitigents under the name of imaginary persons. It must be confessed, however that white all aggrieved nations demand, and all impartial once concede, the need of some form of judicial process in determining the character of contraband person, no other form than the illogical and circuitous one these desert bed exists nor has any other yet been suggested. Practically, therefore, the choice is judicial remedy or judicial remedy whatever.

It there be not judicial remedy, the result is that the question must be the captor himself on the ducker the page vessel. Very grave objections like such a courts. The captor is armed the neutral is unarmed. The captor is interested, 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