EARL RUSSELL’S VIEW OF THE AMERICAN POSITION.
On January 10, 1862, Lord Russell addressed a note to Lord Lyons
stating that her majesty’s government had carefully considered how
far Mr. Seward’s note and its concessions complied with the British
demand. He then recited the fact that the Federal government had
agreed to an unconditional surrender of the prisoners, that Captain
Wilkes had acted entirely without instructions, and that the secretary
of state expressly forebore to justify the act complained of. His
lordship also said that if the United States government had sanctioned
the unauthorized act of Captain Wilkes, it would thereby have become
responsible for “the original violence and insult” offered; but
that Mr. Seward had stated that what had happened had been only “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; and that reparation was justly due.” Earl
Russell said that her majesty’s government had carefully taken into
consideration the surrender of the prisoners, the delivery of them
again into British hands, and also the explanations of Mr. Seward--all
of which constituted the desired redress. His lordship said that her
majesty’s government differed, however, from many of the conclusions
which Mr. Seward had arrived at in his discussion of the international
law points in the case, and that these differences would be fully
presented in a future dispatch.
Accordingly, on January 23, 1862, Earl Russell addressed a dispatch
to Lord Lyons in which the differences were fully discussed. The
only ground upon which a foreign government could treat the matter,
according to Lord Russell’s view, was upon the supposition that the
captured persons were not rebels but only enemies of the United States
at war with its government, hence the discussion was to be confined
solely to the principles of international law involved.
The first inquiry that arose was whether the commissioners and
their supposed dispatches were contraband of war or not. “Upon this
question,” said his lordship, “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 can not be disputed.”
In support of this proposition it was held that a neutral nation has
certain duties to perform toward both parties at war, that it may have
most direct and material interests in the performance of such duties on
both sides, and especially was this true when its citizens, resident
both there and at home, have valuable property in the territories of
both belligerents. Such property may be exposed to acts of violence or
confiscation, if the protection of the neutral government be withheld,
and this, in his lordship’s opinion, was “the case with respect to
British subjects” in the civil war then existing in the United States.
The opinion was expressed that a neutral had the right to maintain
necessary relations with both belligerents. This being true it would
follow that a neutral, carrying diplomatic persons or dispatches of
one belligerent, would not be guilty of an act of hostility toward
the other party at war, and that this principle applied with equal
force to the diplomatic agents of an unrecognized power. Various texts
and precedents were then quoted in support of the foregoing opinion,
after which his lordship said: “It appears to her majesty’s government
to be a necessary and certain deduction 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 and dispatches (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 dispatches was _bona fide_
neutral, it is, in the judgment of her majesty’s government, clear and
certain that they were not contraband.”
The nature of contraband of war was then explained and it was held that
articles of that nature must always have a hostile and not a neutral
destination. “On what just principle,” said Lord Russell, “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 dispatches than in the case of arms and
ammunition?” Mr. Seward had endeavored to sustain his own conclusion
by quoting from Sir William Scott whose opinion was based upon the
doctrines of Vattel. His lordship held that Mr. Seward had wrongly
interpreted the quotations. Reasons were then given for a different
construction, and the conclusion reached that “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 rule deduced from the texts and precedents as explained by Earl
Russell was “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.”
Mr. Seward had stated that the circumstance that the Trent was
proceeding from one neutral port to another neutral port did not modify
the belligerent right of capture, as based upon British authorities.
This was disputed by his lordship, who said: “It is undoubtedly the law
as laid down by British authorities that if the real destination of
the vessel be hostile (that is, to the enemy, or the enemy’s country),
it can not be covered and rendered innocent by a fictitious destination
to a neutral port. But if the real terminus of the voyage be _bona
fide_ in a neutral territory, no English, nor, indeed, as her majesty’s
government believe, any American authority can be found which has
ever given countenance to the doctrine that either men or dispatches
can be subject, during such a voyage, and on board such a neutral
vessel, to belligerent capture as contraband of war. Her majesty’s
government regard such a doctrine as wholly irreconcilable with the
true principles of maritime law, and certainly with those principles as
they have been understood in the courts of this country.”
It was then observed that packet ships carrying mails, while not exempt
from visit and search in time of war nor from the penalties of any
violation of neutrality when proved guilty, were still entitled to
the special favor and protection of their governments, and should not
be detained or disturbed or interfered with unless there should be
excellent reasons for doing so.
Earl Russell held that, if Mr. Seward’s doctrine were true, “any packet
ship carrying a Confederate agent from Dover to Calais, or from Calais
to Dover, might be captured and carried to New York. In case of a war
between Austria and Italy, the conveyance of an Italian minister or
agent might cause the capture of a neutral packet plying between Malta
and Marseilles, or between Malta and Gibraltar, the condemnation of the
ship at Trieste, and the confinement of the minister or agent in an
Austrian prison. So in the late war between Great Britain and France
on the one hand, and Russia on the other, a Russian minister going
from Hamburg to Washington in an American ship might have been brought
to Portsmouth, the ship might have been condemned, and the minister
sent to the Tower of London. So also a Confederate vessel-of-war might
capture a Cunard steamer on its way from Halifax to Liverpool, on the
ground of its carrying dispatches from Mr. Seward to Mr. Adams. In
view, therefore, of the erroneous principles asserted by Mr. Seward,
and the consequences they involve, her majesty’s government think it
necessary to declare that they would not acquiesce in the capture of
any British merchant ship in circumstances similar to those of the
Trent, and the fact of its being brought before a prize court, though
it would alter the character, would not diminish the gravity of the
offense against the law of nations which would thereby be committed.”
His lordship thought that the disposition of the question concerning
the contraband nature of the men and the dispatches rendered
unnecessary any discussion of the other questions raised by Mr. Seward,
although notice was taken of the latter’s assertion that if the safety
of the Union required the detention of the commissioners, it would
be the right and duty of the Federal government to detain them, but
happily the waning proportions of the insurrection, and the comparative
unimportance of the captured persons themselves forbade a resort to
that defense. To this a haughty reply was made, as follows: “Mr. Seward
does not here assert any right founded on international law, however
inconvenient or irritating to neutral nations; he entirely loses sight
of the vast difference which exists between the exercise of an extreme
right and the commission of an unquestionable wrong. His frankness
compels me to be equally open, and to inform him that Great Britain
could not have submitted to the perpetration of that wrong, however
flourishing might have been the insurrection in the South, and however
important the persons captured might have been.”
In conclusion his lordship expressed a hope that similar dangers,
should they arise, might be settled by peaceful negotiations, and
requested that “this dispatch” be read to Mr. Seward and a copy of
it furnished him. Such was the formal rejoinder of her majesty’s
government to Mr. Seward’s letter conceding the British demand. It
was not to be expected that silence would be maintained or that the
doctrines of the American secretary of state would be acquiesced in.
To pursue either of these courses would have been for the British
government to concede too much, and in the estimation of itself, to
lose dignity in the eye of the world.
AUTHORITIES AND REFERENCES.
1. British Annual Register, 1861.
2. Dana’s Wheaton’s International Law, section 504, note.
3. Magazine of American History, June, 1886.
4. McPherson’s Political History of the Rebellion.
5. North American Review, Vol. XCV, pp. 35-50.
6. Wharton’s Digest of the International Law of the U. S. This is
Senate Mis. Doc. No. 162, Part 3, 49 Cong., 1st Sess.