That the American cruiser was guilty of an irregularity and in point of form of an illegal act in carrying off the Southern commissioners without a judicial sentence on the Trent must now be admitted even by those who are disposed to take the least inflammatory view of the subject. The practice of allowing the belligerent cruiser to constitute himself a judge in the matter in the matter is clearly so improper and incon venient that it is impossible to permit such an act to pass into a pre cedent unquestioned.
On the other hand it does seem to me that the extent of the reparation we should demand depends in a great measure on the quesion whether the injury we have sustained was one of form only or of substance. Now whether the injury was one of form or of substance depends on the second question, whether if the American cruiser had acted in a regular manner, i. e., had carried the Trent into an American port in order to bring her before a prize court, there were nt material on which to found a judcial condemnation? If the case is not s clearly in our favor that a decision in the American court condemning the vessel would have been liable to be questioned by us as manifestly contrary to the law of nations then the irregularity of the American captain in allowing the Trent to prceed to Southampton clearly redonded to the advantage of the British owners and the British passengers. Could we ind a fround of international quarrel in an error of procedure which in effect told in our own favor?
Now were there not material from which the American prize court might and most probably would have arrived at such a condemnation? On a doubtful point, which at the least it must be admitted to be, the American decision would probably have been in their own favor. The prize court is judge not only of law but of the facts from which inferences are to be drawn. It might have fairly taken the confessions of Mr. Slidell and his friends that they were Southern commissioners coupled with the occupation in which it is notorious that the other Southern commissioners now in Europe are engaged as a sufficient proof of the hostile character of their mission. If the court had come to such a decision could the English Govenment have disputed their judgment as one in gross violation of law and justice? If not it would have been binding on us and the Trent would have condemmed as a lawful prize.
A distriction has been drawn between the dispatch and the messenger who carries the dispatch which seems to me wholly unsustainable. If a belligerent has power to seize the dispatch he must have the power to detain the messenger. For the messenger, who probably knows the message by heart, is neither more nr less than a living dispatch. Now I do not put forward these considerations as suggesting that we have sustained no injury at the hands of the Americanus nor for the purpose of questioning our right to demand reparation. But I confess that it strikes me very strongly that the quality of the injury materially affects the nature of the amends which we are entitled to require if the Trent would probably have been legally condemned in case a regular course had been pursued by the captain of the San Jacinto, in form it is true she sustained an injury but in substance it is certain she had a fortunate escape.
The conclusion therefore at which I arrive is this: what we are entitled beyond all question to demand is an apology for the illegal and irregular proceeding on the part of the San Jacinto, which cannot be sustainle view of the law of nations, and an under-taking from the American Government that the offense shall not be