More important for the course of the conflict were the 1,300 Union soldiers captured by the Confederacy. Two weeks after Jefferson Davis sent his ominous retaliation letter to Lincoln in early July, Bull Run had made retaliation a credible threat. The South could now impose the laws of war on the North by sheer force. From the end of July onward, reciprocity between the two sides became a tacit basis for abandoning the piracy prosecutions and steadily expanding the role of the laws of war in the Union war effort. Indeed, Lincoln and Seward decided to change the privateers’ legal status from pirates to prisoners of war after an interview with Congressman Alfred Ely of New York, who himself had been captured at Bull Run. Ely had been one of the numerous northern spectators captured in the chaos of the end of the battle. In November 1861, after the Philadelphia convictions and while retrial of the Savannah officers was still a live possibility, Ely had been forced by his Confederate captors to draw from a tin the names of the Union officers who would stand as hostages for the humane treatment of the Confederate privateers in Union hands.
Yet if Lincoln’s piracy prosecutions came to naught, so did the Confederacy’s privateering plans. Despite predictions of hundreds of vessels disrupting Union commerce, the Confederacy ultimately commissioned only fifty-two privateers, many of them barely fit for service and some of them so small and poorly armed as to be no threat to northern merchant vessels at all. When it turned out that the Union blockade had made it too difficult for Confederate privateers to reach the high seas, let alone get their prizes back into southern ports, southern ship owners lost interest in privateering as quickly as they had taken it up.
In the end, the problem of privateering took care of itself. But the piracy trials had revealed something important to the Lincoln administration. Invoking the laws of war to mobilize the power of the blockade was not free. It had come with consequences. It had bound and constrained the Lincoln administration in the federal court in New York City in October 1861 when the jury refused to convict the southern privateers. In the months and years to come it would do the same in the court of public opinion and in the diplomatic courts of Europe. As 1861 came to a close, however, Lincoln and Seward were about to learn that sometimes being constrained by the laws of war could be useful.
Hero of the Hour
CAPTAIN CHARLES WILKES was a national celebrity. In July 1842, he had returned with fantastic discoveries after four years in command of the United States Exploring Expedition in the South Pacific. In the hulls of the expedition’s two surviving vessels (the expedition had started out with six), Wilkes carried 2,000 previously unidentified species of plants and animals. Wilkes and his crew had logged 87,000 miles and mapped 280 Pacific islands. His flagship, the Vincennes, carried a dying Fijian man whose skull (along with 40 tons of specimens and artifacts) would soon become part of the founding collection of the Smithsonian Museum in Washington. Wilkes had discovered a continent—Antarctica—a massive part of which (1500 miles of coastline) would be named after him: Wilkes Land. He was a modern-day Columbus. As Mark Twain later remembered, “the name of Wilkes, the explorer, was in everybody’s mouth.”
Yet as a commander, Wilkes had been erratic, abusive, and self-promoting. In the midst of his triumphant return, Wilkes’s subordinate officers dragged him before a court-martial, which convicted him of illegally flogging the seamen on board the expedition’s vessels. The commander quickly became as renowned for his pugnacious temperament as for his discoveries. And in late 1861, almost twenty years later, the irascible Wilkes nearly touched off a war with Great Britain—a war that the beleaguered United States could ill afford.
WHEN THE CIVIL WAR began in April 1861, Navy Secretary Gideon Welles appointed Wilkes to the command of the San Jacinto, a 12-gun sloop of war stationed off the western coast of Africa to suppress the slave trade. Wilkes was to report to Philadelphia to serve under Captain Samuel F. Du Pont in the Union Navy’s impending assault on Confederate-held Port Royal in the South Carolina Sea Islands. But Du Pont had served on the court that convicted Wilkes in 1842, and the embittered Wilkes had no intention of subordinating himself to his former judge. Violating his orders, Wilkes combed the waters of the eastern Atlantic, hoping to capture Confederate privateers and bring renewed fame (not to mention fortune) to his name. Failing to find any, he sailed to the Caribbean to do more of the same. Then fate intervened. In early November, Wilkes heard rumors that two senior Confederate statesmen—James Mason of Virginia and John Slidell of New Orleans—had run past the Union blockade and booked travel on a British mail steamer called the Trent, sailing out of Havana.
Mason and Slidell had been appointed commissioners to represent the Confederacy in Great Britain and France. But Wilkes had other plans for them. On November 9, he spied the British vessel and fired shots across its bow, forcing it to heave to. Sending a boarding party to the Trent, Wilkes ordered Mason and Slidell and their secretaries forcibly taken from the British vessel while an angry British captain and passengers looked on. Slidell’s seventeen-year-old daughter tried to stop the boarding party single-handedly by slapping Wilkes’s second-in-command in the face.
Wilkes had scoured the law books that he (like many naval captains) carried on board the San Jacinto—books by the Americans Kent and Wheaton and the ubiquitous Vattel. He concluded that although he could find no authority exactly in his favor, it was nonetheless his right and indeed his duty to seize the two men. Wilkes believed he also had the right to seize the Trent itself. But partly because he could ill afford to spare any members of his already overstretched crew, and partly out of consideration for the passengers and crew of the British mail steamer, Wilkes and his officers decided to release the Trent to continue on its way.
WHEN WORD REACHED the United States of Wilkes’s coup, supporters of the Union reacted in wild euphoria. Since late July and the disaster at Bull Run, the North had longed for good news. The capture of Mason and Slidell provided a desperately needed morale boost. William Howard Russell from The Times of London reported “a storm of exultation sweeping over the land.” Wilkes, he wrote in his diary, was “the hero of the hour.” When Wilkes sailed into Boston with the two Confederate statesmen, patriots greeted him in celebration. Governor John A. Andrew spoke at a banquet held in Wilkes’s honor at the Revere House. Secretary Welles told Wilkes that his “conduct in seizing these public enemies” had “the emphatic approval of this Department.”
The difficulty was that public indignation in Great Britain was soon aroused as well. When word of Wilkes’s seizure of the British mail steamer reached England on November 27, the case became a cause célèbre. From London, a friend of Seward wrote that he had never before seen “such a burst of feeling” among the British people; “were the country polled,” he added, “I fear that 999 men out of 1,000 would declare for immediate war.” Charles Wilson, the secretary of the American legation in London, wrote “in very great haste” to Washington that news of the Trent affair had “raised excitement to the highest pitch.” Thurlow Weed, whom Lincoln had sent to Europe to discourage British support for the South, reported that “England is exasperated” and warned Seward that talk of war raced through Britain. By December 11, Weed wrote urgently that war had been “deliberately settled upon” by the British unless Seward could avert the crisis. But averting the crisis meant releasing Mason and Slidell, and releasing Mason and Slidell would doubtless set off a firestorm of opposition in the United States.
The heart of the problem was that American and British observers came to radically divergent answers to the questions that Wilkes had first tried to parse on board the San Jacinto on November 7. Could a belligerent stop a neutral vessel traveling between neutral ports to seize enemy ministers? Lincoln’s attorney general, Edward Bates, was certain that Wilkes’s act was legal. (“The law of nations,” he said, “is clear upon the point.”) As Wilkes himself had reasoned, the law treated enemy dispatches as contraband, and even though Wilkes had been unable to find dispatches, the commissioners themsel
ves were (as Wilkes put it) the “embodiment of dispatches” and thus contraband subject to confiscation. Former U.S. attorneys general and secretaries of state, law professors at Harvard, and leading prize court lawyers all stepped forward and agreed with Wilkes’s conclusions in the strongest terms.
The British, however, were just as certain the opposite was true. Lord Russell, the British foreign minister, insisted that Wilkes had “superseded the authority of the Courts instituted and recognized by the Law of Nations.” “The ingenuity of American lawyers,” he warned Lyons, would doubtless “entangle you in endless arguments on Vattel, Wheaton, and Scott.” But British lawyers and statesmen contended that Wilkes had engaged in a clear violation of neutral rights by intercepting a neutral vessel traveling between neutral ports. The contraband rule, they pointed out, had no application to goods traveling between neutral ports, and in any event they denied that ministers could be contraband of war. Accordingly, Lord Russell instructed Lyons to demand the release of Mason and Slidell and “a suitable apology for the aggression which has been committed.” If release of the men and an appropriate apology were not forthcoming within seven days, Lyons was to request his passports and leave the country.
FOR NINE MONTHS Lincoln had been trying to make sure the United States fought one war at a time. But now many thought war with Britain was inevitable.
On the one hand, Lincoln faced the fervent pro-Wilkes sentiment of northern supporters of the war effort: any effort to turn over Mason and Slidell to the British would seem to the American public, as Bates put it, no more than “timidly truckling to the power of England.” On the other hand, he faced the angry demands of the British government for the two men’s immediate release. As Britain’s deadline approached, Lincoln found himself in what naval historian Craig Symonds has called his “Cuban Missile Crisis moment.”
On Christmas Day, 1861, Seward delivered a brilliant solution, one rooted in the very same laws of war whose confusions had so far only exacerbated the problem. In the British view, Wilkes had actually made two mistakes. Not only had he lacked the right to seize Mason and Slidell, he had also failed to bring the Trent to the federal courts in the United States to have the legality of his capture determined by law. There were mitigating considerations, to be sure. Wilkes had cited the inconvenience to the Trent and its passengers in deciding to let the vessel continue on its way. Moreover, in releasing the vessel, he had abandoned any personal claim on it or its cargo, valued at over $1 million in 1861 dollars. Nonetheless, bringing captured vessels before a prize court was absolutely required by the laws of war. By not doing so, Wilkes had (as Lord Russell observed in the midst of the crisis) “taken into his own hands, by virtue of his cannons and cutlasses,” the question of whether he had been in the right in stopping the Trent and intercepting the commissioners.
Lord Russell had made this point to Lyons in early December, and Lyons in turn passed the objection along to Seward. Once Seward realized the gravity of the situation, he also grasped the opportunity this second British objection offered. When the cabinet assembled on Christmas Day to consider the British ultimatum, Seward read them a draft memorandum that held strong to the ground Wilkes had claimed in November. The Confederate commissioners Mason and Slidell, Seward insisted, were contraband of war, as were any dispatches they were carrying. Wilkes had merely exercised the lawful right of a nation at war to stop and search neutral vessels, and he had done so in a lawful manner. So far, Seward had sustained even the strongest claims of American public opinion. But when Seward reached the question of whether Wilkes had followed the procedural requirements of the laws of maritime warfare, he did an abrupt about-face.
It was true, Seward observed, that Wilkes had declined to follow the procedural requirements of the laws of war at sea. Out of an excess of consideration for the passengers and crew of the Trent, whose voyages would have been badly waylaid by a detour to the United States for adjudication, Wilkes had let the vessel go on its way. (Seward left out the fact that Wilkes had also been motivated to avoid losing a portion of his crew.) But good motives were irrelevant, Seward said. Wilkes had erred in failing to have the capture evaluated by a prize court, and as a result Mason and Slidell and their secretaries were entitled to be released.
Seward’s final move was inspired. If anyone thought for even a minute that Seward had stooped to making pro-British and anti-American arguments, Seward reminded them that he “was really defending and maintaining . . . an old, honoured, and cherished American cause” based on the “distinctive policy” of the United States with respect to neutral rights in wartime. James Madison himself, while secretary of state in 1804, had insisted that every capture be “carried before a legal tribunal” for regular trial and adjudication. “If I decide this case in favour of my own Government,” Seward wrote, “I must disallow its most cherished principles.”
Lincoln himself (at Sumner’s urging) had hoped to arrange an arbitration of the dispute by France or Prussia. But by Christmas he was persuaded that arbitration would be futile (European views of the affair sided with Great Britain) and that the British deadline was not to be trifled with. Lincoln and a unanimous cabinet approved Seward’s memorandum the day after Christmas. Mason and Slidell were released shortly thereafter, and the crisis was averted. Lyons even forgave the absence of an apology in the American response, which Lord Russell grudgingly accepted.
The curiosity of the Trent affair’s culmination was that it turned on what Treasury Secretary Salmon Chase irritably called “a technical wrong”—a legal technicality. And so for a century and a half, historians have viewed the end of the affair as absurd, as evidence that the entire episode was the result of a kind of national madness. Charles Francis Adams, Jr., whose father had been the minister to Great Britain during the controversy, later wrote that it was precisely these sorts of moments that “bring law into contempt” and reveal the “quite unintelligible and somewhat ludicrous state of what is termed Law, of the international variety.” Indeed, according to Adams, the futility of international law was “the one real world lesson the world derived from the Trent affair.”
Historians ever since have followed Adams’s interpretation. But Adams was wrong. Badly wrong. It was the law (technicality or otherwise) that had helped Lincoln and Seward solve their seemingly intractable problem. It offered a principled reason for departing from the wild enthusiasms of American public opinion without abandoning the American view of the merits of the case. And it was the law that had allowed Seward to save face by rooting Lincoln’s position in the proudest traditions of the founding fathers. The law had given Lincoln and Seward room to maneuver in what was otherwise a very tight spot. By the end of 1861, it was fair to say that Lincoln had learned a thing or two about practicing the laws of war, even if the law of nations had not made its way into the frontier law courts of Illinois. Under the stewardship of Lincoln and Seward, it was the law of war (not Wilkes) that had proven to be the unsung hero of the hour.
MUCH OF THE administration’s work on the blockade, the privateers, and the Trent affair had consisted of updating the United States’ embarrassingly outdated positions in the laws of war at sea.
On land, the situation was just as bad and maybe worse. Since the founding, American statesmen had adopted positions that were at the leading edge of the Enlightenment tradition of restraints on war’s violence. They had proposed rules to limit the destruction of private property in wartime. They had castigated the British for the destruction of Washington, D.C., in the War of 1812. Most of all, the United States had argued that emancipating an enemy’s slaves was a gross violation of the laws of civilized warfare.
The Trent crisis had led impassioned Lincoln supporters (even some with little sympathy for slaves) to call for an expanded war effort, one that ever more northerners now urged should emancipate the slaves and arm “every negro of every rebel” so as to “crush out the last vestige of the Slave Aristocracy.” But ever since the royal governor Lord Dunmore had
tried to free the slaves of Virginia’s founding fathers, American statesmen had denounced such efforts as the very definition of savagery in wartime. If Lincoln was to take on the problem of slavery, the United States would need to utterly transform its traditional view of the customs and usages of war.
As it happened, in February 1862 the man who was best qualified to accomplish that transformation was making his way across the country from New York to the Ohio Valley. Chased by personal demons, and without so much as a plan, the man hoped to find a gravely wounded son who had been injured in bitter fighting along the Cumberland River.
Chapter 6
Blood Is the Rich Dew of History
The shorter war is, the better; and the more intensely it is carried on, the shorter it will be.
—Francis Lieber, 1861
AT 6 A.M. on Saturday, February 15, 1862, on the Cumberland River in Tennessee, First Lieutenant Hamilton Lieber and the 1,000 men of the 9th Illinois awoke from a restless night of snow and sleet to the sound of the antiquated British Tower Pattern muskets carried by the Western Department of the Confederate Army. For two days, a Union army of 15,000 men under Brigadier General Ulysses S. Grant and a fleet of four ironclad steamboats led by Union flag officer Andrew H. Foote had pounded 21,000 Confederate soldiers penned up in and around Fort Donelson. Now even more Union troops were arriving. Brigadier Generals John B. Floyd and Gideon Pillow of the Confederate Army had decided to launch a last-ditch offensive to break out of the Union cordon and escape down the road to Nashville.
The 9th Illinois occupied the extreme right of the Union line. Its mission was to extend the Union position and anchor it along a creek to the south and east of the fort, thus blocking the road that ran along the creek toward Nashville and safety for the Confederate Army. At daybreak, when three Confederate regiments led an assault on Union positions, the 9th Illinois stood directly in their path.
Lincoln's Code Page 22