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.