THE ANSWER OF THE FEDERAL GOVERNMENT.
The president and cabinet having agreed to surrender the Confederate
commissioners, Mr. Seward’s letter of reply to the British demand was
sent to Lord Lyons without delay. The communication was quite long,
and began by making a careful and complete statement of the contents
of Lord Russell’s note of November 30, asking for reparation. Mr.
Seward then stated that the capture was made without any direction,
instruction, or even foreknowledge of the Federal government; that
no orders whatever had been issued to Captain Wilkes or to any other
naval officer to arrest the four persons taken from the Trent or any
of them, either on that vessel or any other British or neutral ship;
and that the British government would justly infer from these facts
that the United States had no purpose or even thought of forcing into
discussion the question that had arisen or any other which could affect
the sensibilities of the British nation.
The facts concerning the boarding of the Trent as reported by Commander
Williams were then reviewed by Mr. Seward and correctly stated, the
fictions being all pointed out.
“I have now to remind your lordship,” continued Mr. Seward, “of some
facts which doubtlessly were omitted by Earl Russell, with the very
proper and becoming motive of allowing them to be brought into the
case, on the part of the United States, in the way most satisfactory
to this government. These facts are, that at the time the transaction
occurred an insurrection was existing in the United States which this
government was engaged in suppressing by the employment of land and
naval forces; that in regard to this domestic strife the United States
considered Great Britain as a friendly power, while she had assumed for
herself the attitude of a neutral; and that Spain was considered in the
same light, and had assumed the same attitude as Great Britain.
“It had been settled by correspondence that the United States and Great
Britain mutually recognized as applicable to this local strife these
two articles of the declaration made by the congress of Paris in 1856,
namely, that the neutral or friendly flag should cover enemy’s goods
not contraband of war, and that neutral goods not contraband of war
are not liable to capture under an enemy’s flag. These exceptions of
contraband from favor were a negative acceptance by the parties of the
rule hitherto everywhere recognized as a part of the law of nations,
that whatever is contraband is liable to capture and confiscation in
all cases.”
The character and purposes of the persons seized were then carefully
explained, and the statement made that it was to be presumed that the
commissioners bore dispatches which it appeared from information sent
by the American consul at Paris had escaped the search of the Trent
and reached England in safety. Mr. Seward also stated, upon information
and belief, that the agent and officers of the Trent, including
Commander Williams, before leaving Havana knew that Messrs. Mason and
Slidell were commissioners from the Confederate States on their way to
Europe.
From the foregoing facts Mr. Seward arrived at the conclusion that
the case was not an act of violence or outrage but only an ordinary
and legal belligerent proceeding against a neutral vessel carrying
contraband of war for the use and benefit of the insurgents; that the
question was whether this had been done in accordance with the law of
nations; and that the following inquiries were involved:
“1. Were the persons named and their supposed dispatches contraband of
war?
“2. Might Captain Wilkes lawfully stop and search the Trent for these
contraband persons and dispatches?
“3. Did he exercise that right in a lawful and proper manner?
“4. Having found the contraband persons on board and in presumed
possession of the contraband dispatches, had he a right to capture the
persons?
“5. Did he exercise that right of capture in the manner allowed and
recognized by the law of nations?”
It was then stated that if these questions should be answered in the
affirmative, the British government would have no claim for reparation.
The first four were argued briefly by the secretary and an affirmative
conclusion reached in the case of each one. The difficulties began
with the fifth question. Maritime law is sufficiently clear as to the
disposition to be made of captured contraband vessels and property,
but it says nothing concerning the mode of procedure in regard to
contraband persons. “The belligerent captor,” said Mr. Seward, “has a
right to prevent the contraband officer, soldier, sailor, minister,
messenger or courier from proceeding in his unlawful voyage and
reaching the destined scene of his injurious service. But, on the
other hand, the person captured may be innocent--that is, he may not
be contraband. He, therefore, has a right to a fair trial of the
accusation against him. The neutral state that has taken him under its
flag is bound to protect him if he is not contraband, and is therefore
entitled to be satisfied upon that important question. The faith of
that state is pledged to his safety, if innocent, as its justice
is pledged to his surrender if he is really contraband. Here are
conflicting claims, involving personal liberty, life, honor, and duty.
Here are conflicting national claims involving welfare, safety, honor,
and empire. They require a tribunal and a trial. The captors and the
captured are equals; the neutral and the belligerent states are equals.”
It was then stated that the American government had early suggested
that such controversies be settled by proper judicial proceedings. If
the suspected persons were proved to be contraband, the vessel would
also partake of that character. If the men were not contraband, the
vessel would escape condemnation. Although there would be no judgment
for or against the captured persons, yet a legal certainty concerning
their character would result from the determination of the court
concerning the vessel.
Objections were then pointed out even to this course of proceeding,
the chief of which was that such a judgment concludes nothing, for it
binds neither the belligerent nor the neutral upon the question of the
disposition to be made of the captured persons. Such a question would
still have to be really determined by diplomacy or by war. Regret was
expressed that maritime systems of law furnished no better processes
of determining the characters of contraband persons, and the statement
made that is was practically then a choice between the illogical and
circuitous methods already suggested and no judicial remedy at all.
“If there be no judicial remedy,” said Mr. Seward, “the result is
that the question must be determined by the captor himself, on the
deck of the prize vessel. Very grave objections arise against such a
course. The captor is armed, the neutral is unarmed. The captor is
interested, prejudiced, and perhaps violent; the neutral, if truly
neutral, is disinterested, subdued and helpless. The tribunal is
irresponsible, while its judgment is carried into instant execution.
The captured party is compelled to submit, though bound by no legal,
moral, or treaty obligation to acquiesce. Reparation is distant and
problematical, and depends at last on the justice, magnanimity or
weakness of the state in whose behalf and by whose authority the
capture was made. Out of these disputes reprisals and wars necessarily
arise, and these are so frequent and destructive that it may well
be doubted whether this form of remedy is not a greater social evil
than all that could follow if the belligerent right of search were
universally renounced and abolished forever. But carry the case one
step farther. What if the state that has made the capture unreasonably
refuse to hear the complaint of the neutral or to redress it? In that
case, the very act of capture would be an act of war--of war begun
without notice, and possibly entirely without provocation.
“I think all unprejudiced minds will agree that, imperfect as the
existing judicial remedy may be supposed to be, it would be, as a
general practice, better to follow it than to adopt the summary one
of leaving the decision with the captor and relying upon diplomatic
debates to review his decision. Practically, it is a question of choice
between law, with its imperfections and delays, and war, with its evils
and desolations.”
Mr. Seward then said there were cases where the judicial remedy would
become impossible as by the shipwreck of the prize vessel, or other
circumstances which excuse the captor from sending her into port for
confiscation. Such a case, however, would not annul the right of the
captor to the custody of the contraband persons so that their unlawful
purposes can not be accomplished. The captor in such a case should show
that the failure of the judicial remedy resulted from circumstances
entirely beyond his control and without his fault. Any other course
would permit him to derive advantages from his own wrongful act.
Secretary Seward next reviewed the course of Captain Wilkes in making
a prize of the Trent and capturing the contraband persons lawfully,
then permitting her to continue upon her voyage instead of sending her
into port for adjudication. The capture was incomplete, if the whole
thing constituted a single transaction. It was unfinished or abandoned.
Whether the leaving of the act unfinished was voluntary or not, was the
question which was to determine the validity of the British claim for
reparation. If necessary and, therefore, involuntary, the British claim
for reparation would be unfounded; if unnecessary and voluntary, then
the claim was well founded.
Captain Wilkes’s reasons for not carrying the Trent into port were then
reviewed and carefully examined. The first reason was on account of his
being so reduced in officers and crew, and the second was the great
inconvenience, loss, and disappointment which would have resulted to
the passengers of the vessel. So far as Captain Wilkes was concerned
the reasons were satisfactory to the United States government. It could
not desire that the San Jacinto should be exposed to danger and loss by
reducing her officers and crew in order to put a prize crew on board
the Trent and carry her into port; neither could it disavow the humane
motive of preventing inconveniences, losses, and possibly disasters to
the passengers who were on board the captured vessel. It manifestly
did not occur to Captain Wilkes that such a course might sacrifice the
right of his government to retain the captured persons, although he was
not deserving of censure for anything that he had done. The question
was not whether he was justified to his government, but what the view
of his government was as to the effect of his course in not bringing
the Trent into port.
This brought into view the question whether the release of the Trent
was a voluntary or an involuntary proceeding. It would have been
clearly involuntary, if made solely upon the ground that Captain Wilkes
could not bring the prize vessel into port on account of a lack of
officers and crew necessary to do so. The captor is not required to
hazard his own vessel in order to bring the prize vessel into port.
Neither is a large prize crew necessary, for it is the duty of the
captured party to assent and to go willingly before the judicial
tribunal which tries the case. Should the captured party express a
determination to use force which there is no reasonable probability
of the captor’s overcoming without too much risk to himself, he may
properly leave the prize vessel to proceed on her voyage and it can not
afterward be objected that she has been deprived of the judicial remedy
which was her due.
Captain Wilkes’s second reason was different from the first, so that
the release of the Trent was voluntary and not made of necessity.
Mr. Seward’s next inquiry was how these explanations by the commander
of the San Jacinto were to affect the British government. His first
observation was that the explanations had not been made to the
authorities of the captured vessel. If they had been so made the
release might have been accepted by the officers of the Trent on
condition of waiving an investigation by a competent court, or such
condition might have been entirely refused. But it was a case with the
British government and not with the officers of the Trent. If it were
claimed by Great Britain that a judicial trial had been lost because
Captain Wilkes had voluntarily released the Trent, out of consideration
for her innocent passengers, he did not see how Great Britain was “to
be bound to acquiesce in the decision which was thus made by us without
necessity on our part, and without knowledge of conditions or consent
on her own. The question between Great Britain and ourselves thus
stated would be a question not of right and of law, but of favor to be
conceded by her to us in return for favors shown by us to her, of the
value of which favors on both sides we ourselves shall be the judge.
Of course the United States could have no thought of raising such a
question in any case.”
That any deliberate wrong in the transaction had been meditated,
practiced, or approved, was disclaimed by Mr. Seward. He said that
“on the contrary what has happened has been simply an inadvertency,
consisting in a departure, by the naval officer, free from any wrongful
motive, from a rule uncertainly established and probably by the several
parties concerned either imperfectly understood or entirely unknown.
For this error the British government has a right to expect the same
reparation that we, as an independent state, should expect from Great
Britain or from any other friendly nation in a similar case.
“I have not been unaware that, in examining this question I have
fallen into an argument for what seems to be the British side of it
against my own country. But I am relieved from all embarrassment
on that subject. I had hardly fallen into that line of argument
when I discovered that I was really defending and maintaining not
an exclusively British interest, but an old, honored and cherished
American cause, not upon British authorities, but upon principles
that constitute a large portion of the distinctive policy by which
the United States have developed the resources of a continent, and,
thus becoming a considerable maritime power, have won the respect and
confidence of many nations. These principles were laid down for us in
1804, by James Madison, when secretary of state in the administration
of Thomas Jefferson in instructions given to James Monroe, our minister
to England.”
A quotation was then inserted from one of Mr. Madison’s dispatches,
in which he said that a belligerent commander is not permitted to
condemn and seize, on the deck of a neutral vessel, property suspected
of being contraband, but that the whole matter must be submitted to a
prize court which can assess damages against the captor for an abuse
of his power; hence it is unreasonable, unjust and inhuman to permit
a naval officer, restricted in the case of mere property of trivial
amount to decide, on the deck of his vessel without any sort of trial,
the question of allegiance, and carry such decision into effect by
forcing every individual he may choose into a service detestable and
humiliating to the impressed seaman and dangerous even to life itself.
Satisfaction was expressed at being able to decide the case upon
strictly American principles, and the statement made that the claim of
the British government had not been made in a discourteous manner.
In coming to the conclusion that it was the duty of the American
government to disavow Captain Wilkes’s act and return the prisoners,
Secretary Seward said: “If the safety of this Union required the
detention of the captured persons, it would be the right and duty of
this government to detain them. But the effectual check and waning
proportions of the existing insurrection, as well as the comparative
unimportance of the captured persons themselves, when dispassionately
weighed, happily forbid me from resorting to this defense.”
Attention was then called to the fact that Great Britain had often
refused to yield claims like the one under consideration, and it was
thought a matter of special congratulation that the British government
had disavowed its former principles and was now contending for what the
United States had always insisted upon.
The last paragraph of the communication read as follows: “The four
persons in question are now held in military custody at Fort Warren in
the state of Massachusetts. They will be cheerfully liberated. Your
lordship will please indicate a time and place for receiving them.”
Such was the answer of Mr. Seward--the reply of the American
government conceding the British demand. Most critics pronounce it
a very able state paper. This judgment is certainly correct if all
things be considered. It was prepared on the briefest notice and in
the fever heat of war time. It was absolutely necessary to yield to
the British demand. The circumstances were such that a refusal to
do this meant national ruin to the United States. Mr. Seward spoke
for an administration already beset by innumerable difficulties and
responsible to a people who were almost unanimously opposed to the
course which the necessities of the case required the government to
pursue. The work of Secretary Seward in this case was very skillfully
done. His course was both politic and wise. He yielded unconditionally
to the demand for the surrender of the commissioners, but, at the same
time, he justified the spirit of Captain Wilkes’s act and was able to
place the surrender solely upon a simple mistake--an error made out of
humane considerations and consequently one which was not deserving
of censure. By showing that, in making the surrender, he was guided
by long cherished American principles, he forestalled the censure and
objections which were certain to come from his own countrymen. But
this was not all. His positions were fortified by vigorous and acute
argument, much of which was apparently unanswerable.
While Mr. Seward deserves the gratitude of his countrymen for having
extricated the nation from a difficulty that was very embarrassing, a
careful examination shows that his letter is not entirely free from
objections and inconsistencies. The entire communication bears the
impress of having been prepared for the special purpose of finding
diplomatic reasons for surrendering the commissioners--as it doubtless
was.
After having established the right to make the capture, Mr. Seward
says that the voluntary or involuntary release of the Trent by
Captain Wilkes must determine the validity of the English claim for
reparation. If the release were voluntary the claim was well founded;
if involuntary the validity of the claim could not be admitted by the
Federal government. One of Captain Wilkes’s reasons for releasing the
British vessel was that he could not spare a prize crew of officers
and men to bring her into port--an involuntary reason of great weight.
The second reason for allowing the Trent to proceed was the desire not
to discommode her numerous innocent passengers--a purely voluntary
proceeding on the part of Captain Wilkes. Here are two equally valid
independent reasons presented for a course pursued. To accept one does
not nullify the other, although it leads, by Mr. Seward’s reasoning, to
a different conclusion. Although the former seems the better reason,
it was discarded in the letter of reply, and the grounds for surrender
based upon the latter consideration, viz: The voluntary release of the
Trent in order not to cause inconvenience to her innocent passengers.
This led to the conclusion that the British claim should be conceded.
It is not easy to understand why the other reason might not have been
accepted and an opposite conclusion reached, unless Mr. Seward desired
to escape from the consequences to which his own logic would lead in
that case.
It is also quite evident that Mr. Seward drew a wrong inference
from the quotation made from Secretary Madison’s dispatch when he
interpreted it to mean that the United States would have quietly
submitted to the assumed British “right of search and seizure,” if
the decrees of impressment had been passed upon American citizens by
the prize courts of England rather than by the naval officers of that
country on the decks at sea. Such a proceeding would not have made
impressment any more acceptable to Americans, and the quotation from
Mr. Madison’s dispatch can not be properly construed to mean that it
would have done so.
Mr. Seward said that the British claim for reparation was “not made in
a discourteous manner.” If British courtesy consisted in pushing armies
into Canada to menace the United States; if it meant the fitting out of
warlike armaments at home with more of haste than had been seen in such
preparations for a third of a century; if it meant an order for Lord
Lyons to leave Washington in one week unless the demands of the English
ministry were complied with fully and completely before the expiration
of that time--then, indeed, the claim was made courteously. If all
this be courtesy, then every American should hope that, in future, his
country may be saved from the courtesy of such friends.
AUTHORITIES AND REFERENCES.
1. Blaine, James G.: Twenty Years of Congress, Vol. II.
2. British Annual Register 1861.
3. Dana’s Wheaton’s International Law, section 504, note.
4. McPherson, Edward: Political History of the Rebellion.
5. North American Review, Vol. XCV.
6. Official Records of the Union and Confederate Navies in the War of
the Rebellion, Ser. I, Vol. I.
7. Porter, Admiral D. D.: Naval History of the Civil War.
8. Seward, Wm. H.: Works of, Vol. V.