The Trent Affair (1861)

BY SECRETARY WILLIAM HENRY SEWARD

ONLY the fifth question remains, namely: Did Captain Wilkes exercise the right of capturing the contraband in conformity with the law of nations? . . .

. . . 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. . . .

. . . 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. . . .

It was replied all this was 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 men, together with the suspected vessel, into port, and try there the question whether the vessel is contraband. You can prove it to be so by proving the suspected men to be contraband, and the court must then determine 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. . . .

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. . . .

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.

"Whenever," he says, "property found in a neutral vessel 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 captor, but be carried before a legal tribunal, where a regular trial may be had, and where the captor himself is liable to damages for an abuse of his power. Can it be reasonable, then, or just, that a belligerent 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 decision into execution by forcing every individual he may choose into a service abhorrent to his feelings, cutting him off from his most tender connexions, exposing his mind and his person to the most humiliating 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 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 that defence. . . .

Nor have I been tempted at all by suggestions that cases might be found in history where Great Britain refused to yield to other nations, and even to ourselves, claims like that which is now before us. . . . It would tell little for our own claims to the character of a just and magnanimous people if we should so far consent to be guided by the law of retaliation as to lift up buried injuries from their graves to oppose against what national consistency and the national conscience compel us to regard as a claim intrinsically right.

Putting behind me all suggestions of this kind, I prefer to express my satisfaction that, by the adjustment of the present case upon principles confessedly American, and yet, as I trust, mutually satisfactory to both of the nations concerned, a question is finally and rightly settled between them, which, heretofore exhausting not only all forms of peaceful d[i]scussion, but also the arbitrament of war itself, for more than half a century alienated the two countries from each other, and perplexed with fears and apprehensions all other nations.

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.

, 37 Cong., 2 sess. (Washington, 1862), IV, No. 8, pp. 8–13 passim.