Lord Lyons to Mr. Seward.

WASHINGTON, January 9, 1862.

SIR: I have the honor to acknowledge the receipt of the notes from the State Department of the 3d and 8th instant, relative to the unseemly position in which the British flag was placed on board the captured vessel James Campbell, in New York harbor.

No sooner did the superior naval authorities of the United States at New York perceive the position in which the flag was placed, than they ordered it to be removed. Commodore Paulding, moreover, immediately wrote to her Majesty's consul to express his regret at the occurrence. He was, besides, so good as to address a letter to the commander of her Majesty's ship Racer, disavowing, in behalf of the government of the United States, any intention to show disrespect to the British flag.

Finally, it appears from the report of the prize master, of which you have now done me the honor to send me a copy, that he acted from ignorance and without any intention to slight the flag.

Under these circumstances it only remains for me to express my thanks for the prompt measures which have been taken by the United States authorities to do away with the unpleasant impression produced by the error of the prize.

master.

I have the honor to be, with high consideration, sir, your most obedient, humble servant,

Hon. WILLIAM H. SEWARD, &c., &c., &c.

LYONS.

Earl Russell to Lord Lyons.

FOREIGN OFFICE, January 10, 1862.

MY LORD: In my despatch to you of the 30th of November, after informing you of the circumstances which had occurred in relation to the capture of the four persons taken from on board the Trent, I stated to you that it thus appeared that certain individuals had been forcibly taken from on board a British vessel, the ship of a neutral power, while such vessel was pursuing a lawful and innocent voyage-an act of violence which was an affront to the British flag and a violation of international law. I concluded by directing you, in case the reparation which her Majesty's government expected to receive should not be offered by Mr. Seward, to propose to that minister to make such redress as alone would satisfy the British nation, namely: first, the liberation of the four gentlemen taken from on board the Trent, and their delivery to your lordship in order that they might again be placed under British protection; and, secondly, a suitable apology for the aggression which had been committed.

I received, yesterday, your lordship's despatch of the 27th ultimo, enclosing a note to you from Mr. Seward, which is, in substance, the answer to my despatch of the 30th of November.

Proceeding at once to the main points in discussion between us, her Majesty's government have carefully examined how far Mr. Seward's note and the conduct it announces comply substantially with the two proposals I have recited. With regard to the first, viz: the liberation of the prisoners with a view to their being again placed under British protection, I find that the note concludes by stating that the prisoners will be cheerfully liberated, and by calling upon your lordship to indicate a time and place for receiving them.

No condition of any kind is coupled with the liberation of the prisoners. With regard to the suitable apology which the British government had a right to expect, I find that the government of the United States distinctly and unequivocally declares that no directions had been given to Captain Wilkes or to any other naval officer to arrest the four persons named, or any of them, on the Trent or on any other British vessel, or any other neutral vessel, at the place where it occurred, or elsewhere.

I find, further, that the Secretary of State expressly forbears to justify the particular act of which her Majesty's government complained. If the United States government had alleged that although Captain Wilkes had no previous instruction for that purpose, he was right in capturing the persons of the four prisoners and in removing them from the Trent on board his own vessel to be afterwards carried into a port of the United States, the government which had thus sanctioned the proceeding of Captain Wilkes would have become responsible for the original violence and insult of the act. But Mr. Seward contents himself with stating that what has happened has been simply an inadvertency consisting in a departure by a 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. The Secretary of State goes on to affirm that for this error the British government has a right to expect the same reparation which the United States, as an independent state, should expect from Great Britain or from any other friendly nation in a similar case.

Her Majesty's government having carefully taken into their consideration the liberation of the prisoners, the delivery of then into your hands, and the explanation to which I have just referred, have arrived at the conclusion that they constitute the reparation which her Majesty and the British nation had a right to expect.

It gives her Majesty's government great satisfaction to be enabled to arrive. at a conclusion favorable to the maintenance of the most friendly relations between the two nations. I need not discuss the modifications in my statement of facts which Mr. Seward says he has derived from the reports of officers of his government.

I cannot conclude, however, without adverting shortly to the discussions which Mr. Seward has raised upon points not prominently brought into question in my despatch of the 30th of November. I there objected, on the part of her Majesty's government, to that which Captain Wilkes had done. Mr. Seward, in his answer, points out what he conceives Captain Wilkes might have done without violating the law of nations. It is not necessary that I should here discuss in detail the five questions ably argued by the Secretary of State. But it is necessary that I should say that her Majesty's government differs from Mr. Seward in some of the conclusions at which he has arrived, and it may lead to a better understanding between the two nations on several points of international law which may, during the present contest or at some future time, be brought into question, that I should state to you for communication to the Secretary of State wherein those differences consist. I hope to do so in a few days. In the meantime it will be desirable that the commanders of the United States cruisers should be instructed not to repeat acts for which the British government will have to ask redress, and which the United States government cannot undertake to justify. You will read and give a copy of this despatch to the Secretary of State.

I am, &c.,

LORD LYONS, &c., &c., &c.

RUSSELL.

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.

Right Hon. LORD LYONS, &c., &c., &c.

WILLIAM H. SEWARD.

Lord Lyons to Mr. Seward.

WASHINGTON, January 14, 1862.

SIR: I have the honor to acknowledge the receipt of the note, which you were so 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

of

copy to you three days ago. I will to-day forward to Lord Russell a copy 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, humble servant,

Hon. WILLIAM H. SEWARD, &c., &c., &c.

LYONS.

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 numerous 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,t 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, s. 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 immunities 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.