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Mr. Seward to Lord Lyons.
DEPARTMENT OF STATE,
Washington, January 13, 1862. My Lord: You have kindly left with me a copy of an instruction which you had received from Earl Russell, dated on the 22d of November last.
I have great pleasure in stating to you, for the information of his lordship, that the President frankly and unhesitatingly accepts the explanations given by Earl Russell of what was the meaning of the British government in the views which, at their instance, you had heretofore submitted to me concerning the right of the President to suspend the habeas corpus, in time of insurrection, without waiting for direct authority from Congress.
I have to regret, however, that while the misapprehension which has existed upon this one point is thus generously removed by Earl Russell, he deems it necessary to persist in the opinion that the President's proceeding, under a suspension of the habeas corpus, in the case of William Patrick was wanton and capricious, and that it had not been rendered necessary by the exigencies of the civil war.
As government must proceed always upon information, and often with great promptness and energy, it could hardly be possible to avoid the commission of occasional errors in the exercise of precautionary power to repress insurrection, manifesting itself more or less formidably in every State of the American Union. I cannot but think that a prompt correction of the error in such a case, (such a correction as was made in the case of Mr. Patrick,) is all that could reasonably be required by persons willing to deliberate carefully, and anxious to interpret the action of the government with candor and impartiality, as I am sure Earl Russell is. I cheerfully consent to leave Earl Russell's protest on the record, where it will lie side by side with the decisions of this government, which show that, during a civil war now of nine months' duration, no complaint of any kind has been denied a hearing; not one person has been pressed into the land or naval service; not one disloyal citizen or resident, however guilty of treason or conspiracy, has forfeited his life, except in battle; not one has been detained a day in confinement who could and would give reasonable pledges of his forbearance from evil designs, nor, indeed, has one person who could or would give no such pledges been detained a day beyond the period when the danger which he was engaged in producing had safely passed away. Happily, it is not the judgments of even great and good men like Earl Russell
, pronounced in the excitement of the hour, and possibly subject to the influences of disturbing events, which determine the characters of states. From such judgments we cheerfully appeal to that of history, confident that it records no instance in which any government or people has practiced moderation in civil war equal to that which, thus far, has distinguished this government and the American people.
I avail myself of this opportunity to renew to your lordship the assurance of my high consideration.
WILLIAM H. SEWARD. Right Hon. LORD LYONS, &c., &c., &c.
Lord Lyons to Mr. Seward.
WASHINGTON, January 14, 1862. Sir: I have the honor to acknowledge the receipt of the note, which you were 80 good as to address to me yesterday, on the subject of the despatch from Earl Russell to me, relative to the arrests of British subjects, of which I delivered a
copy to you three days ago. I will to-day forward to Lord Russell a copy of the communication which you have thus been so good as to make to me.
I have the honor to be, with the highest consideration, sir, your most obedient, lrumble servant,
LYONS. Hon. William H. SEWARD, &c., &c., dc.
Earl Russell to Lord Lyons.
FOREIGN OFFICE, January 23, 1862. My LORD: I mentioned in my despatch of the 10th instant that her Majesty's government differed from Mr. Seward in some of the conclusions at which he had arrived, and that I should state to you, on a future occasion, wherein these differences consisted. I now proceed to do so. It is necessary to observe that I propose to discuss the questions involved in this correspondence solely on the principles of international law. Mr. Seward himself, speaking of the capture of the four gentlemen taken from on board the Trent, says: “The question before us is, whether this proceeding was authorized by, and conducted according to, the law of nations." This is, in fact, the nature of the question which has been, but happily is no longer, at issue. It concerned the respective rights of belligerents and of neutrals. We must, therefore, discard entirely from our minds the allegation that the captured persons were rebels, and we must consider them only as enemies of the United States at war with its government, for that is the ground on which Mr. Seward ultimately places the discussion. It is the only ground upon which foreign governments can treat it.
The first inquiry that arises, therefore, is, as Mr. Seward states it, “Were the persons named and their supposed despatches contraband of war?" Upon this question her Majesty's government differ entirely from Mr. Seward. The general right and duty of a neutral power to maintain its own communications and friendly relations with both belligerents cannot be disputed.
“A neutral nation,” says Vattel,* "continues, with the two parties at war, in the several relations nature has placed between nations. It is ready to perform towards both of them all the duties of humanity, reciprocally due from nation to nation." In the performance of these duties, on both sides, the neutral nation has itself a most direct and material interest, especially when it has nu. merous citizens resident in the territories of both belligerents, and when its citizens, resident both there and at home, have property of great value in the territories of the belligerents which may be exposed to danger from acts of confiscation and violence, if the protection of their own government should be withheld. This is the case with respect to British subjects during the present civil war in North America.
Acting upon these principles, Sir William Scott, in the case of the Caroline, during the war between Great Britain and France, decided that the carrying of despatches from the French ambassador resident in the United States to the government of France by an United States merchant ship was no violation of the neutrality of the United States in the war between Great Britain and France, and that such despatches could not be treated as contraband of war. “The neutral country,” he said, “has a right to preserve its relations with the enemy, and you are not at liberty to conclude that any communication between them
Vattel, book iii, cap. 7. 8. 118.
† Caroline, (Chr. Rob., 461;) cited and approved by Wheaton, (“Elements," part iv, cap. 3, sec. 22.)
can partake, in any degree, of the nature of hostility against you. The enemy may have his hostile projects to be attempted with the neutral state, but your reliance is on the integrity of that neutral state, that it will not favor nor participate in such designs, but, as far as its own councils and actions are concerned, will oppose them. And if there should be private reasons to suppose that this confidence in the good faith of the neutral state has a doubtful foundation, that is matter for the caution of the government, to be counteracted by just measures of preventive policy ; but it is no ground on which this court can pronounce that the neutral carrier has violated his duty by bearing despatches, which, as far as he can know, may be presumed to be of an innocent nature, and in the maintenance of a pacific connexion.”
And he continues, shortly afterwards :
" It is to be considered, also, with regard to this question, what may be due to the convenience of the neutral state, for its interests may require that the intercourse of correspondence with the enemy's country should not be altogether interdicted. It might be thought to amount almost to a declaration that an ambassador from the enemy shall not reside in the neutral state, if he is declared to be debarred from the only means of communicating with his own; for to what useful purpose can he reside there without the opportunities of such a communication? It is too much to say that all the business of the two states shall be transacted by the minister of the neutral state resident in the enemy's country. The practice of nations has allowed to neutral states the privilege of receiving ministers from the belligerent states, and the use and convenience of an immediate negotiation with them."
That these principles must necessarily extend to every kind of diplomatic communication between government and government, whether by sending or receiving ambassadors or commissioners personally, or by sending or receiving despatches from or to such ambassadors or commissioners, or from or to the respective governments, is too plain to need argument; and it seems no less clear that such communications must be as legitimate and innocent in their first commencement as afterwards, and that the rule cannot be restricted to the case in which diplomatic relations are already formally established by the residence of an accredited minister of the belligerent power in the neutral country. It is the neutrality of the one party to the communications, and not either the mode of the communication or the time when it first takes place, which furnishes the test of the true application of the principle.
The only distinction arising out of the peculiar circumstances of a civil war, and of the non-recognition of the independence of the de facto government of one of the belligerents, either by the other belligerent or by the neutral power, is this: that " for the purpose of avoiding the difficulties which might arise from a formal and positive solution of these questions diplomatic agents are frequently substituted, who are clothed with the powers and enjoy the iromunities of ministers, though they are not invested with the representative character, nor entitled to diplomatic honors."* Upon this footing Messrs. Mason and Slidell
, who are expressly stated by Mr. Seward to have been sent as pretended ministers plenipotentiary from the southern States to the courts of St. James and of Paris, must have been sent, and would have been, if at all, received; and the reception of these gentlemen upon this footing could not have been justly regarded, according to the law of nations, as a hostile or unfriendly act towards the United States. Nor, indeed, is it clear that these gentlemen would have been clothed with any powers, or have enjoyed any immunities beyond those accorded to diplomatic agents not officially recognized.
It appears to her Majesty's government to be a necessary and certain deduc
• Wheaton's " Elements," part iii, chap. 1, sec. 5.
tion from these principles that the conveyance of public agents of this character from Havana to St. Thomas, on their way to Great Britain and France, and of their credentials or despatches (if any) on board the Trent, was not and could not be a violation of the duties of neutrality on the part of that vessel ; and, both for that reason and, also, because the destination of these persons and of their despatches was bona fide neutral, it is, in the judgment of her Majesty's government, clear and certain that they were not contraband.
The doctrine of contraband has its whole foundation and origin in the principle which is nowhere more accurately explained than in the following passage of Bynkershoek. After stating, in general terms, the duty of impartial neutrality, he adds: “Et sane id, quod modo dicebam, non tantum ratio docet, sed et usus, inter omnes fere gentes receptus. Quamvis enim libera sint cum amicorum nostrorum hostibus commercia, user tamen placuit, ne alterutrum his rebus juvemus, quibus bellum contra amicos nostros instruatur et foveatur. Non licet igitur alterutri advehere ea, quibus in bello gerendo opus habet; ut sunt tormenta, arma, et quorum præcipuus in bello usus, milites. Optimo jure tinerdictum est, ne quid eorum hostibus subministremus; quia his rebus nos ipsi quodammodo videremur amicis nostris bellum faceree."*
The principle of contraband war is here clearly explained, and it is impossible that men or despatches which do not come within that principle can in this sense be contraband. The penalty of knowingly carrying contraband of war is, as Mr. Seward states, nothing less than the confiscation of the ship; but it is impossible that this penalty can be incurred when the neutral has done no more than employ means usual among nations for maintaining his own proper relations with one of the belligerents. It is of the very essence of the definition of contraband that the articles should have a hostile, and not a neutral, destination. Goods,” says Lord Stowell,t “going to a neutral port cannot come under the description of contraband, all goods going there being equally lawful. The rule respecting contrabands," he adds, " as I have always understood it, is, that articles must be taken in delicto, in the actual prosecution of the voyage to an enemy's port.” On what just principle can it be contended that a hostile destination is less necessary, or a neutral destination more noxious, for constituting a contraband character in the case of public agents or despatches than in the case of arms and ammunition ? Mr. Seward seeks to support his conclusion on this point by a reference to the well-known dictum of Sir William Scott in the case of the Caroline, that "you may stop the ambassador of your enemy on his passage,”and to another dictum of the same judge in the case of the Orozembo,g that civil functionaries, “if sent for a purpose intimately connected with the hostile operations," may fall under the same rule with persons whose employment is directly military.
These quotations are, as it seems to her Majesty's government, irrelevant; the words of Sir W. Scott are in both cases applied by Mr. Seward in a sense different from that in which they were used. Sir William Scott does not say that an ambassador sent from a belligerent to a neutral state may be stopped as contraband while on his passage on board a neutral vessel belonging to that or any other neutral state, nor that, if he be not contraband, the other belligerent would have any right to stop him on such a voyage.
The sole object which Sir William Scott had in view was to explain the extent and limits of the doctrine of the inviolability of ambassadors in virtue of that character; for he says :
“The limits that are assigned to the operations of war against them, by Vattel and other writers upon these subjects, are, that you may exercise your
Bynkershoek, “Quæst. Jur. Publ.," lib. i, cap. 9. † The “Imina,” 3 chr. Rob., 167. # The Caroline, 6 cbr. Rob., 468.
$ The Orozembo, 6 chr. Rob., 434.
right of war against them whenever the character of hostility exists. You may stop the ambassador of your enemy on his passage ; but when he has arrived, and has taken upon him the functions of his office, and has been admitted in 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.”
There is certainly nothing in this passage from which an inference can be drawn so totally opposed to the general tenor of the whole judgment as that an ambassador proceeding to the country to which he is sent, and on board a neutral vessel belonging to that country, can be stopped on the ground that the conveyance of such an ambassador is a breach of neutrality, which it must be if he be contraband of war. Sir William Scott is here expressing not his own opinion merely, but the doctrine which he considers to have been laid down by writers of authority upon the subject. No writer of authority has ever suggested that an ambassador proceeding to a neutral state on board one of its merchant ships is contraband of war. The only writer named by Sir William Scott is Vattel,* whose words are these : "On peut encore attaquer et arrêter ses gens,” (i. e., gens de l'ennemi,) partout où on a la liberté d'exercer des actes d'hastilité. Non seulement donc on peut justement refuser le passage aux ministres qù un ennemi envoye à d'autres souverains; les arrête même, s'ils entreprennent de passer secrètement et sans permission dans les lieux dont on est maitre.”
And he adds, as an example, the seizure of a French ambassador when passing through the dominions of Hanover during war between England and France, by the King of England, who was also sovereign of Hanover.
The rule, therefore, to be collected from these authorities is, that you may stop an enemy's ambassador in any place of which you are yourself the master, or in any other place where you have a right to exercise acts of hostility. Your own territory, or ships of your own country, are places of which you are yourself the master. The enemy's territory, or the enemy's ships, are places in which you have a right to exercise acts of hostility. Neutral vessels guilty . of no violation of the laws of neutrality are places where you have no right to exercise acts of hostility.
It would be an inversion of the doctrine that ambassadors have peculiar privileges to argue that they are less protected than other men. The right conclusion is, that an ambassador sent to a neutral power is inviolable on the high seas, as well as in neutral waters, while under the protection of the neutral flag.
The other doctrine of Sir William Scott, in the case of the Orozembo, is even less pertinent to the present question. That related to the case of a neutral ship which, upon the effect of the evidence given on the trial, was held by the court to have been engaged as an enemy's transport to convey the enemy's military officers, and some of his civil officers whose duties were intimately connected with military operations, from the enemy's country to one of the enemy's colonies which was about to be the theatre of those operations—the whole being done under color of a simulated neutral destination. But as long as a neutral government, within whose territory no military operations are carried on, adheres to its professions of neutrality, the duties of civil officers on a mission to that government, and within its territory, cannot possibly be “connected with” any “military operations” in the sense in which these words were used by Sir William Scott, as, indeed, is rendered quite clear by the passages already cited from his own judgment in the case of the Caroline. In connexion with this part of the subject, it is necessary to notice a remarkable passage in Mr. Seward's note, in which he says: “I assume, in the present case,
• Vattel, lib. iv, chap. 7, sec. 85.