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.