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to the actual conditions, it was not even shown to the Cabinet.1

Up to ten o'clock in the morning of Wednesday, the 25th, when Seward's draft was ready to be laid before the Cabinet, no one except Blair and Seward seems to have favored a full compliance with the British demand. "It was considered on my presentation of it on the 25th and 26th of December," Seward wrote to Weed. "The government, when it took the subject up, had no idea of the grounds upon which it would explain its action, nor did it believe that it would concede the case. Yet it was heartily unanimous in the actual result after two days' examination, and in favor of the release." Doubtless all the influences that Seward had felt were brought to bear upon his colleagues. Sumner attended the Cabinet conference on Christmas-day and read letters from Bright and from Cobden showing how much they deprecated war and how difficult it was to avoid it without the surrender of the Confederates. A despatch from Thouvenel to Mercier was also considered. It fully confirmed the reports about France's attitude. Undoubtedly she was glad to find Great Britain reversing her practice; but what must have surprised and impressed the administration was the apparently sincere and almost affectionate appeal to our government not to commit the fatal error of trying to defend what had been done." Bates came early to Seward's support. He told his colleagues that to go to war with England would be "to abandon all hope of suppressing the rebellion " that it would sweep our ships from southern waters, ruin our trade, and bankrupt our treasury. Yet "there was great reluctance on the part of some of the members of the Cabinet-and even the President himself



5 Nicolay and Hay, 34.


22 Weed, 409; 3 Seward, 42, 43.

3 3 Rhodes, 529 ff.; 4 Pierce, 59. 4 5 Nicolay and Hay, 36.

5 Sen. Ex. Doc. No. 8, 37th Cong., 2d Sess., pp. 13–15.

to acknowledge these obvious truths." The risk of a conflict with Great Britain was the decisive influence for concession. That there should have been two opinions about it is now almost incomprehensible. We may assume with confidence that this peril, emphasized by the advice of Adams, Weed, Bigelow, and Dayton, was the chief factor in Seward's conclusions.

Bates also recorded, with perfect candor and truth, why so many still hesitated: "The main fear, I believe, was the displeasure of our own people-lest they should accuse us of timidly truckling to the power of England." The long session on Christmas-day did not suffice; so the consideration of the question was continued on the next day. At last, on the 26th, "all yielded to, and concurred in, Mr. Seward's letter to Lord Lyons, after some verbal and formal amendments.""" It had already been rumored that Mason and Slidell were to be released, probably at the same hour in which the Cabinet was giving its approval to Seward's draft. John P. Hale told the Senate that he had talked with many gentlemen about the question, but "not a man can be found who is in favor of this surrender; for it would humiliate us in the eyes of the world, irritate our own people, and subject us to their indignant scorn." It seems likely that this statement represented the opinion of four-fifths,


1 Quoted 5 Nicolay and Hay, 36. Sumner saw the danger as clearly as Bates. 'War with England involves-(1) Instant acknowledgment of rebel states by England, followed by France; (2) Breaking of the present blockade, with capture of our fleet-Dupont and all; (3) The blockade of our coast from Chesapeake to Eastport; (4) The sponging of our ships from the ocean; (5) The establishment of the independence of rebel states; (6) Opening of these states by freetrade to English manufacturers, which would be introduced by contraband into our states, making the whole North American continent a manufacturing dependency of England. All this I have put to the President."-Sumner to Lieber, December 24th.-4 Pierce, 58.

2 Bates's diary. Quoted 5 Nicolay and Hay, 36.

3 Globe, 1861-62, 177.

perhaps nineteen-twentieths, of the people of the United States.

If Seward had known at first that Wilkes's act was contrary to international law, he would have foreseen that Great Britain would insist on the surrender of the prisoners, and that it would be easier to defend effectively a voluntary release than one that resulted from a demand.' Moreover, at the beginning, public opinion could have been quietly influenced if not controlled.' But after five weeks, when passions had become aroused and thousands of prominent men were committed in approval of the action of Wilkes, it was much more difficult. Seward's predicament at last was very peculiar; the prisoners had to be released, but it was important to justify this release in such a way as not to arouse the resentment of the great popular majority, or either to offend the House of Representatives or humiliate the Secretary of the Navy. Otherwise the administration would find itself greatly weakened, and perhaps unable to command sufficient support to save the Union. So it is not surprising that this reply to Russell is the most studied and elaborately adroit paper that ever came from Seward's pen. After reviewing the leading facts. connected with the incident, he proceeds to discuss it in its legal aspects:

"The question before us is, whether this proceeding was authorized by and conducted according to the law of nations. It involves the following inquiries:

1 Lord Lyons, in explaining his own non-committal attitude pending instructions, said: "The American people would more easily tolerate a spontaneous offer of reparation made by its government from a sense of justice than a compliance with a demand for satisfaction from a foreign minister."-115 War Records, 1095.

2 Lyons considered the press moderate at first.—Ibid., 1100.

3 The full text is printed in Senate Ex. Doc. No. 8, 37th Cong., 2d Sess.; 115 War Records, 1145; Bernard, 201.

"1st. Were the persons named and their supposed despatches contraband of war?

"2d. Might Captain Wilkes lawfully stop and search the Trent for these contraband persons and despatches?

"3d. Did he exercise that right in a lawful and proper manner?

"4th. Having found the contraband persons on board, and in presumed possession of the contraband despatches, had he a right to capture the persons?

"5th. Did he exercise that right of capture in the manner allowed and recognized 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 despatches, 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 term 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. Despatches 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 the public expense, it should afford equal ground of forfeiture against the vessel that 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 despatches, were contraband of war.

"The second inquiry is whether Captain Wilkes had a right 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 existed in modern times 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.

"I assume in the present case what, as I read British authorities, is regarded by Great Britain herself as true maritime law: That the circumstance that the Trent was proceeding from a neutral port to another neutral port does not modify the right of the belligerent captor.

"The third question is whether Captain Wilkes exercised the right of search in a lawful and proper manner.

"If any doubt hung over this point, as the case was presented in the statement of it adopted by the British government, I think it must have already passed away before the modifications of that statement which I have already submitted.

"I proceed to the fourth inquiry-namely: Having found the suspected contraband of war on board the Trent, had Captain Wilkes a right to capture the same?

"Such a capture is the chief, if not the only recognized, object of the permitted visitation and search. The principle of the law is that the belligerent exposed to danger may prevent the contraband persons or things from applying themselves or being applied to the hostile uses or purposes designed. The law is so very liberal in this respect that when contraband is found on board a neutral vessel, not only is the contraband forfeited, but the vessel which is the vehicle of its passage or transportation, being tainted, also becomes contraband, and is subjected to capture and confiscation.

"Only the fifth question remains-namely: Did Captain

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