Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Third Session Thirty-seventh Congress

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,^† 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 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 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 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,^† “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,^§ 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 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 arrtêr ses gens,” (i. e., gens de l’ennemi,) partout où on a la liberte d’exercer des actes d’hastilité. Non seulement done on peut justement refuser le passage aux ministres qù un ennemi envoye à d’autres souverains; les arrête même, s’ils entreprennent de passer secrétement 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, what, as I read British authorities, is regarded by Great Britain herself as true maritime law, that the circumstance that the Trent was proceeding from a neutral port to another neutral port does not modify the right of belligerent capture.” If, indeed, the immediate and ostensible voyage of the Trent had been to a neutral port, but her ultimate and real destination to some port of the enemy, her Majesty’s government might have been better able to understand the reference to British authorities contained in this passage. 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 cannot 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 despatches 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 is to be further observed that packets engaged in the postal service, and keeping up the regular and periodical communications between the different countries of Europe and America, and other parts of the world, though in the absence of treaty stipulations they may not be exempted from visit and search in time of war, nor from the penalties of any violation of neutrality, if proved to have been knowingly committed, are still, when sailing in the ordinary and innocent course of their legitimate employment, which consists in the conveyance of mails and passengers, entitled to peculiar favor and protection from all governments in whose service they are engaged. To detain, disturb, or interfere with them, without the very gravest cause, would be an act of a most noxious and injurious character, not only to a vast number and variety of individual and private interests, but to the public interests of neutral and friendly governments. It has been necessary to dwell upon these points in some detail, because they involve principles of the highest importance, and because if Mr. Seward’s arguments were acted upon as sound the most injurious consequences might follow.

For instance, in the present war, according to Mr. Seward’s doctrine, 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 despatches 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 that the fact of its being brought before a prize court, though it would alter the character, would not diminish the gravity of the offence against the law of nations which would thereby be committed.

Having disposed of the question whether the persons named, and their supposed despatches, were contraband of war, I am relieved from the necessity of discussing the other questions raised by Mr. Seward, namely, whether Captain Wilkes had lawfully a right to stop and search the Trent for these persons and their supposed despatches: whether that right, assuming that he possessed it, was exercised by him in a lawful and proper manner; and whether he had a right to capture the persons found on board.

The fifth question put by Mr. Seward, namely, whether Captain Wilkes exercised the alleged right of capture in the manner allowed and recognized by the law of nations, is resolved by Mr. Seward himself in the negative. I cannot conclude, however, without noticing one very singular passage in Mr. Seward’s despatch.

Mr. Seward asserts that “if the safety of this Union required the detention of the captured persons it would be the right and duty of this government to detain them.” He proceeds to say that the waning proportions of the insurrection, and the comparative unimportance of the captured persons themselves, forbid him from resorting to that defence. 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.

Happily all danger of hostile collision on this subject has been avoided. It is the earnest hope of her Majesty’s government that similar dangers, if they should arise, may be averted by peaceful negotiations conducted in the spirit which befits the organs of two great nations.

I request you to read this despatch to Mr. Seward, and give him a copy of it.

I am, &c.,

RUSSELL.

1. Vattel, book iii, cap. 7, s. 118.
2. Caroline, (Chr. Rob., 461;) cited and approved by Wheaton, (“Elements,” part iv, cap. 3, sec. 22.)
3. Wheaton’s “Elements,” part iii, chap. 1, sec. 5.
4. Bynkershoek, “Quaest, Jur Publ.,” lib. i, cap 9.
5. The “Imina,” 3 chr. Rob., 167
6. The Caroline, 6 chr. Rob., 468.
7. The Orozembo, 6 chr. Rob., 434
8. Vattel, lib. iv, chap. 7, sec. 85.