tences: "For the past ten days the public has expressed itself indebted to me for the performance of a task that it had before thought impossible. But the day before it was done it would have voted me incompetent to do any good thing. So, probably, it will be ready to do again, ten days hence." Weed had favored dealing

quietly and directly with the question. Seward subsequently explained his own course as follows: "I am under the necessity of consulting the temper of parties and people on this side of the water quite as much as the temper of parties and people in England. If I had been as tame as you think would have been wise in my treatment of affairs in that country, I should have had no standing in my own.""

Mason and Slidell and their secretaries were, on January 1, 1862, taken from Fort Warren to Provincetown, Massachusetts, about forty miles distant, and there put on a British sloop of war. They were then borne to St. Thomas, whence they continued their journey to England.

While they were on their voyage a vessel with a detachment of troops that were expected to be used against the United States, finding the St. Lawrence river full of ice, had entered Portland harbor. When permission was asked for them to cross Maine, Seward promptly ordered that all facilities should be granted for "landing and transporting to Canada or elsewhere troops, stores, and munitions of war of every kind without exception or reservation." This was regarded as a most ludicrous climax, and a capital joke on Great Britain; and it was said that the London Times refused to publish Seward's letter of permission. It was a very happy ending.

It is important to know whether Seward's argument

1 3 Seward, 46.

2 1 Weed, 640.

3 115 War Records, 186.

was as sound as it was successful, according to popular opinion. There is no question that the carrying of officers in either the military or naval service of the enemy renders a neutral ship subject to seizure and condemnation. There were no persons in the naval or military service of the Confederacy on the Trent, nor were despatches of any kind found; so the seizure of the ship could not be justified by this rule. To defend what had been done, Seward undertook to maintain the novel proposition that Mason and Slidell diplomatic agents, proceeding between neutral ports in a ship as free from Confederate control as any packet between Calais and Dover-were contraband of war.' He based his claim on these three references:

[1.] "Vattel says war allows us to cut off from an enemy all his resources, and to hinder him from sending ministers to solicit assistance. [2.] "And Sir William Scott says you may stop the ambassador of your enemy on his passage.

[3.] "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 hostile operations."

It is not a little surprising that Seward should support so novel a claim by citations so vague, and without referring to or explaining the circumstances under which his authorities announced these opinions. What Vattel said was that an enemy's people might be attacked and seized wherever there was a right to commit

1 66

'Und wenn etwas feststeht, ist es das Princip, dass feindliche, nichtmilitärische Staatsangehörige am Bord neutraler Schiffe der Gefangennehmung durch den anderen Kriegführenden nicht unterliegen."-Marquardsen, Der Trent-Fall, 74.

acts of hostility. Vattel gave a perfectly clear illustration of his meaning. There was no right to commit a hostile act on board the Trent, unless she had forfeited her neutrality by carrying contraband of war; but that was what Seward was undertaking to prove. He assumed an analogy where there was none, and then used his false assumption to support his contention.'

Seward's second reference was to Sir William Scott, who was quoting Vattel and considering the case of the Caroline. The Caroline was a Swedish vessel that had been engaged as one of a fleet of French transports under the control of French military and naval officers." She thereby ceased to be a neutral and became a belligerent ship; and England, then at war with France, had a right to commit acts of hostility against her. There was no real similarity between the case of the Caroline and that of the Trent. And what the learned judge actually said furnishes no support for Seward's claim.❜

1 Vattel's passage is as follows: "On the breaking out of a war, we cease to be under any obligation of leaving the enemy to the free enjoyment of his rights; on the contrary, we are justifiable in depriving him of them, for the purpose of weakening him, and reducing him to accept of equitable conditions. His people may also be attacked and seized wherever we have a right to commit acts of hostility. Not only, therefore, may we justly refuse a passage to the ministers whom our enemy sends to other sovereigns; we may even arrest them if they attempt to pass privately, and without permission, through places belonging to our jurisdiction. Of such proceeding the last war furnishes a signal instance. A French ambassador, on his route to Berlin, touched, through the imprudence of his guides, at a village within the electorate of Hanover, whose sovereign, the King of England, was at war with France. The minister was there arrested, and afterward sent over to England. As his Britannic Majesty had in that instançe only exerted the rights of war, neither the court of France nor that of Prussia complained of his conduct."-Chitty's translation of Vattel, book 4, chapter 7, section 85.

2 Dana's Wheaton's International Law, 639, 640.

I have before said that persons discharging the functions of em

The third reference was to the decision in the case of the Orozembo, and was still more deceptive. The Orozembo was an American vessel that had been ostensibly chartered by a merchant of Lisbon, who subsequently had her fitted up for the reception of three military officers, and two persons in the civil departments in the government of Batavia, who, under appointment of the Dutch government, had come from Holland to take their passage to Batavia. This made the Orozembo a Dutch transport, subject to seizure and condemnation by Holland's enemy, England. The carrying of military persons was regarded as conclusive evidence of the fact. The judge proceeded to speculate as to the significance of carrying the civil persons:

"In this instance the military persons are three, and there are, besides, two other persons, who were going to be employed in civil capacities in the government of Batavia. Whether the principle would apply to them alone, I do not feel it necessary to determine. I am not aware of any case in which that question has been agitated; but it appears to me, on principle, to be but reasonable that whenever it is of sufficient importance to the enemy that such persons. should be sent 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.

bassadors are, in a peculiar manner, objects of the protection and favor of the law of nations. The limits that are assigned to the operations of war against them, by Vattel, and other writers upon those subjects, are, that you may exercise your right of war against them, wherever the character of hostility exists. You may stop the embassador of your enemy on his passage; but when he has arrived, and has taken upon himself the functions of his office, and has been admitted to his representative character, he becomes a sort of middle-man, entitled to peculiar privileges, as set apart for the protection of the relations of amity and peace, in maintaining which all nations are, in some degree, interested."-6 Robinson's Reports, 467-69.

16 Robinson's Reports, 434. Only the words "on principle" are italicized in the original.

Dana said of the opinion regarding the Orozembo: "Even as a dictum, it does not touch the case of a neutral vessel not let out as a transport, and merely having civil officers of a belligerent government on board, without other circumstances tending to show the vessel herself to be in the enemy's service."

1

It was by such means that Seward made it appear that Mason and Slidell were contraband of war. After this feat it was like sailing with the wind and the current-in fact, argument was superfluous-to show that Wilkes had a right to stop and search the Trent; that the right was lawfully and properly exercised; and that, having found these "contraband persons,” he had a right to capture them. Up to this point the Secretary, the captain of the San Jacinto, and the stormy multitude of hero-worshippers, were all in perfect accord as to the incident. By a long course of reasoning that was essentially sound, except in the first premise as to contraband, Seward maintained that by releasing the Trent, instead of bringing her into port for judicial examination and condemnation, Wilkes let slip the only chance of obtaining a legal justification for the seizure. He dealt mildly and cleverly with "the humane motive" and the "combined sentiments of prudence and generosity" that led to the release, and he declared, "This government cannot censure him for this oversight." So Wilkes himself may even have felt complimented, although the net result was a condemnation of his action.

Seward's course committed him to some very remarkable absurdities. In order to sustain his position, he had to cite irrelevant British decisions and to subordinate the principles and steady practice of his own country, which

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1 Dana's Wheaton's International Law, 641; see also 2 Baker's Halleck's International Law (1893), 298 ff.