Upon this footing Messrs. Mason and Slidell who are expressly stated by Mr. Seward to have been sent as pretended ministers plenipotentiary form the Southern States to the courts of Saint James and of Paris must have been sent, and would have been if at all received; and the reception of these gentlemen upon this footing could not have been justly regarded according to the law of nations as a hostile or unfriendly act toward the United States.
Nor indeed is it clear that these gentlemen would have been clothed with any powers or have enjoyed any immunities beyond those accorder to diplomatic agents not officially recognized. It appears to Her Majesty's Government to be a necessary and certain deduction from these principles that the conveyenance of public agents of this character from Havana to Saint Thomas on their way to Great Britain and France and of their credentials or dispatches (if any) on board the Trent was not and could not be a violation of the duties of neutrality on the part of the vessel, and both for that reason and also because the destination of these persons and of their dispatches was bona fide neutral it is in the judgment of Her Majesty's Government clear and certain that they were not contraband.
The doctrine of contraband has its whole foundation and origin in the principle which is nowhere more accurately explained than in the following passage of Bynkerhoek. After stating in general terms the duty of impartial neutrality he adds:
Et sane id, quod modo dicebam, non tantum ratio docet, sed et usus, inter omnes fere gentes recuptus. Quamvis enim libera, sent cum amicorum nostrorum hostibus commercia, usu tamen placuit, ne alterutrum his rebus juvemus, quibus bellum contra amicos notros instruatur et foveatur. Non licet igitur alteerutre advehere ea, quibus in bello gerendo opus habet; us sunt tormetna, arma, et quorum preacupuus in bello usus, milites. * * * Optimo jure interdictum est, ne quid eoministremus, quia his rebus nos ipsi quodammodo videremur amicis nostris bellum facere.
The principle of contraband of war is here clearly explained and it is improssible than men or dispatches which do not come within that principle can in this sense be contrabanc. The penalty of knowingly carrying contraband of war is as Mr. Seward states nothing less than the confiscation of the ship; but it is impossible that this penalty can be incurred when the neutral has done no more than employ means usual among nation for maintaining his own proper relations with one of the belligerents. It is of the very essence of the definition of contraband that the articles should have a hostile and not a neutral destination.
Goods [says Lord Stowel] going to a neutral port cannot come under the description of contraband, all goods going there being equally lawful. * * * The rule respecting contraband as I have always understood it is that articles must be taken in delicto-in the actual prosecution of the voyage to an enemy's port.
On what just principle can in be contended that a hostile destination is less necessary or a neutral destination more noxious for constituting a contraband character in the case of public agents or dispatches than in the case of arms and ammunition?
Mr. Seward seeks to support his conclusion on this point by a reference to the well-known dictum of Sir William Scott in the case of the Caroline that " you may stop the amabassador of your enemy on his passage; " and to another dictum of the same judge in the case of the Orozembo that civil functionaries "if sent for a purpose intimatley connected with the hostile operations" may fall under the same rule with persons whose employment is directly military. These quotations are as it seems to He Majesty's Government irrelevant. The words of