The confiscation of the noxious article, which constitutes the penalty for contraband ... would be ridiculous when applied to dispatches. There would be no freight dependent on their transportation and therefore this penalty could not, in the nature of things, be applied. The vehicle, in which they are carried, must, therefore, be confiscated. ."Walker, in his Introduction to American Law, says:
"...neutrals may not be concerned in bearing hostile dispatches, under the penalty of confiscation of the vehicle, and of the cargo also."Kent , who is accounted a decisive authority in British courts, states in his Commentaries :
"If, on search of a ship, it is found that she carries enemy dispatches , she incurs the penalty of capture and of confiscation by judgment of a prize court."Dr. Robert Phillimore , Advocate of Her Majesty in Her Office of Admiralty, says in his latest work on international law, p. 370:
"Official communications from an official person on the public affairs of a belligerent Government are such dispatches as impress an hostile character upon the carriers of them. The mischievous consequences of such a service cannot be estimated, and extend far beyond the effect of any Contraband that can be conveyed, for it is manifest that by the carriage of such dispatches the most important operations of a Belligerent may be forwarded or obstructed.... The penalty is confiscation of the ship which conveys the dispatches and ...of the cargo, if both belong to the same master."Two points are therefore established. Queen Victoria's proclamation of May 13, 1861, subjects English ships that carry dispatches of the Confederacy to the penalties of international law. International law, according to its English and American commentators, imposes the penalty of capture and confiscation on such ships.
Palmerston's organs consequently lied on orders from above --and we were naive enough to believe their lie -- in affirming that the captain of the San Jacinto had neglected to seek for dispatches on the Trent and therefore had of course found none; and that the Trent had consequently become shotproof through this oversight.
The American journals of November 17 to 20, which could not yet have been aware of the English lie, unanimously state, on the contrary, that the dispatches had been seized and were already in print for submission to Congress in Washington. This changes the whole state of affairs.
Because of these dispatches, the San Jacinto had the right to take the Trent in tow and every American prize court had the duty to confiscate her and her cargo. With the Trent , her passengers also naturally came within the pale of American jurisdiction.
Messrs. Mason, Slidell and Co., as soon as the Trent had touched at Monroe, came under American jurisdiction as rebels. If, therefore, instead of towing the Trent herself to an American port, the captain of the San Jacinto contented himself with seizing the dispatches and their bearers, he in no way worsened the position of Mason, Slidell and Co., whilst, on the other hand, his error in procedure benefited the Trent , her cargo and her passengers. And it would be indeed unprecedented if Britain wished to declare war on the United States because Captain Wilkes committed an error in procedure harmful to the United States, but profitable to Britain.
The question whether Mason, Slidell and Co., were themselves contraband, was only raised and could only be raised because the Palmerston journals had broadcast the lie that Captain Wilkes had neither searched for dispatches, nor seized dispatches. For in this case Mason, Slidell and Co. in fact constituted the sole objects on the ship Trent that could possibly fall under the category of contraband. Let us, however, disregard this aspect for the moment. Queen Victoria's proclamation designates "officers" of a belligerent party as contraband. Are "officers" merely military officers? Were Mason, Slidell and Co. "officers" of the Confederacy? "Officers," says Samuel Johnson in his dictionary of the English language, are "men employed by the public", that is, in German: Öffentliche Beamte. Walker gives the same definition.
(See his dictionary, 1861 edition.)
According to the usage of the English language, therefore, Mason, Slidell and Co., these emissaries, id est , officials of the Confederacy, come under the category of "officers", whom the royal proclamation declares to be contraband. The captain of the Trent knew them in this capacity and therefore rendered himself, his ship and his passengers confiscable.
If, according to Phillimore and all other authorities, a ship becomes confiscable as the carrier of an enemy dispatch because it violates neutrality, in a still higher degree is this true of the person who carries the dispatches. According to Wheaton , even an enemy ambassador , so long as he is in transitu , may be intercepted. In general, however, the basis of all international law is that any member of the belligerent party may be regarded and treated as "belligerent" by the opposing party.
"So long as a man," says Vattel , "continues to be a citizen of his own country, he is enemy of all those with whom his nation is at war."One sees, therefore, that the law officers of the English Crown reduced the point of contention to a mere error in procedure , not an error in re , but an error in forma , because, actually, no material violation of law is to hand. The Palmerston organs chatter about the material legal question again because a mere error in procedure, in the interest of the Trent at that, gives no plausible pretext for a haughty-toned ultimatum.
