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whole lading, or any part thereof, should appertain to the enemies of either, contraband goods being always excepted. It is also agreed, in like manner, that the same liberty be extended to persons who are on board a free ship, with this effect—that although they be enemies to both or either party, they are not to be taken out of that free ship, unless they are soldiers, in the actual service of the enemy?
Substantially the same provision was embraced in each succeeding treaty entered into between the United States and the other maritime nations of either hemisphere, with the single exception of Great Britain, whose assent to the principle was always and pertinaciously refused.
It will be found in the treaty concluded by the United States with the Netherlands, in 1782—with Sweden, in the same year—with Prussia, in 1785— with Spain, in 1795—with France, in 1800—with Columbia, in 1824—with Central America, in 1825 —with Brazil, in 1828—with Mexico, in 1831—with Chili, in 1832—with Venezuela, in 1836—with Peru and Bolivia, in the same year—with Ecuador, in 1839—with New Grenada, in 1846—with Guatemala, in 1849—with San Salvador, in 1850—and with Peru, in 1851.1
By this unbroken chain of evidence, in the solemn form of treaty stipulation, the principle is asserted as the fixed and irrevocable policy of the United States government, by which neutral vessels are exempt from capture by a belligerent cruiser, for carrying any other persons than such as are actually
1 Vide 8th; 9th, and 10th volumes of the United States Statutes at Large.
in the military or naval service of the enemy, and that no other than such persons can lawfully be removed from on board such neutral vessel.
That such, too, is the principle adopted by the French government, is declared by her minister for foreign affairs, in a diplomatic note, addressed to the American Secretary of state, upon the subject of this arrest, in which he "earnestly insists that the rebel emissaries, not being military persons actually in the service of the enemy, were not subject to seizure on board a neutral ship."
It thus appears, that Great Britain stands among the nations of the earth, in jealous conservation of her assumed rights as dictator of the sea, the sole repudiator of this principle, upon which alone her demand could be sustained for the restoration to her custody of the rebel emissaries, because removed from her merchant ship, in "violation of international law!"
The senator then proceeds to the consideration of the third position, that—
By the public law, as asserted and maintained by the United States, the neutral vessel was not liable to seizure for carrying hostile dispatches, inasmuch as such dispatches are not contraband of war.
That the Trent was the carrier of such dispatches, no one could doubt. This necessarily resulted from the character of the service the rebel emissaries were on their way to perform; and, indeed, the chief among the rebels, who assumed to appoint them to this service, has since declared that they were furnished with his appointment and commis
That the vessel was subject to capture for this cause, by the well-settled law of Great Britain, as laid down in numerous cases in her courts of Admiralty, and in the decisions of the Lords, in which hostile dispatches are declared to Le included in the list of contraband articles, we have already seen.1
"But," says the senator, "however binding and peremptory these authorities may be in Great Britain, they cannot be accepted to reverse the standing policy of the United States, which here, again, leaves no room for doubt."
In the treaty concluded by the United States with France, in 1778, there is an enumeration of the articles to be considered as contraband, and the article "dispatches" does not appear in this enumeration; and the subsequent provision of limitation, operates as an exclusion of dispatches, by declaring that "Free goods, are all other merchandise and things which are not comprehended and particularly mentioned in the foregoing enumeration of contraband goods."
The subsequent treaties concluded by the United States with other nations, containing the same enumeration and the like exclusion, long after the British decisions had become well known, by which hostile dispatches were not only included in the list of contraband articles, but were declared to be of a character so noxious, as to subject both ship and cargo to confiscation, may properly be regarded as a practical repudiation of the British doctrine.
If, then, the capture of the neutral steamer
i Vide ante, p. —
Trent because she was the carrier of hostile dispatches, would have been in "violation of international law," as it is conceded it would have been, as that law is established by the policy of the nation of the captor, Great Britain, the complaining power, is the only nation on earth which is precluded from making such complaint, because the only nation by whose tribunals the validity of a capture for such cause is asserted and maintained.
Passing to the fourth and last position, that, by the public law, as asserted and maintained by the United States, the Trent was not liable to arrest, as the earner of hostile dispatches, even upon the assumption that they were contraband, because she was a neutral vessel, sailing between neutral ports, the senator clearly shows, that the principle in the law of contraband, adopted and adhered to by the United States, as set forth in her treaties with other nations than Great Britain, includes a rigid limitation of its application to trading with the enemy.
It is uniformly declared that the articles enumerated as contraband, are only subject, to capture and confiscation, "when tliey are carried, or attempted to be earned, to an enemy." Of course not, when carried between neutral ports, and not destined for the enemy.
But although, by the law of nations, as fixed in the policy adopted by the United States government, the neutral termini of the voyage of the Trent freed her from liability to capture as the carrier of contraband articles of any description, it clothed her with no such immunity under the Avell-settled law of Great Britain.
The great oracle of British prize law, Sir William Scott, in a "well-considered judgment," de. clares, that dispatches taken on board a neutral ship, sailing from a neutral country, and bound for another neutral country, are contraband; but that, where there was reason to believe the master ignorant of their character, " it is not a case in which the property is to be confiscated, although in this, as in every other instance in which the enemy's dispatches are found on board a vessel, he has justly subjected himself to all the inconveniences of seizure and detention, and to all the expenses of those judicial inquiries which they have occasioned."
And thus the senator concludes his demonstration, that upon every ground of complaint, either of the capture of the Trent, or the removal of the rebel emissaries, upon which a violation of international law could be predicated, such capture or removal, was unjustifiable by American authority or American precedent, but upon each point was in entire accordance with the authority, the precedents, and the persistent practice of Great Britain, for generations.
Having to deil with a British ship, the American commander, no doubt, thought he could not err in consulting and following British authority. "But," says the senator, "he was mistaken. There was a better example. It was the constant, uniform, unhesitating practice of his own country on the ocean, conceding always the greatest immunity to neutral ships, unless sailing to blockaded ports— . refusing to consider dispatches as contraband of war—refusing to consider persons, other than soldiers or officers, as contraband of war—and protesting always against an adjudication of personal