legal and customary belligerent proceeding by Captain Wilkes to arrest and capture a neutral vessel negaged 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:
First. Were the persons named and their supposed dispatches contraband of war?
Second. Might Captain Wilkes lawfully stop and search the Trent for these contraband persons and dispatches?
Third. Did he exercise that right in a proper and lawful manner?
Fourth. Having found the contraband persons on board and in presumed possession of the contraband dispatches had he a right to capture the persons?
Fifth. Did he exercise that right of capture in the manner allowed and rcognized by the law of nations?
If all these inquiries shall be resolved in the affirmative the British Government will have no claim for reparation.
I address myself to the first inquiry, namely, were the four persons mentioned and their supposed dispatches contraband?
Maritime law so generally deals as its professors say in rem, that is, with property and so seldom with persons that it seems a straining of the word "contraband" to apply it to them. But persons as well as property may become contraband since the word means broadly "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 passage. Dispatches are not less clearly contraband and the bearers or couriers who undertake to carry them fall under the same condemnation.
A subtlety might be raised whether pretended ministers of a usurping power not recognized as legal by either the belligerent or 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 William Scott speaking of civil magistrates who are arrested and detained as contraband says:
It appears to me on 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 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 rilght by the law of nations to detain and search the Trent.
The Trent though she carried mails was a contract or merchant vessel-a common carrier for hire. Maritime law knows only three classes of vessels-vessels of war, revenue vessels and merchant vessels. The Trent falls within the latter class. Whatever disputes have existed concerning a right of visitation or search in time of peace none it is supposed has existe in modern time about the right of a belligerent in time of war to capture contraband in neutral and even friendly merchant vessels, and of the right of visitation and search in order to determine whether they are neutral and are documented as such according to the law of nations.