Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Third Session Thirty-seventh Congress
Mr. Adams to Mr. Seward.
Sir: I have the honor to transmit a copy of Lord Russell’s note to me, just received, in reply to mine of the 28th of May, on the subject of the ship Emily St. Pierre. At the same time I transmit a copy of my reply.
It seems to me that after this no resource is left in cases of seizure for violating the blockade but to put the officers in irons.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
Earl Russell to Mr. Adams.
Sir: I have had the honor to receive your further letter of the 28th of May respecting the case of the Emily St. Pierre.
In that letter you profess to review and re-examine all the circumstances of the case; but I do not observe that you cite any new authorities in support of your claim for the surrender of the vessel to the captors from whom [Page 111] she was rescued, or that you refer to any precedent tending to show that a demand, similar to that which you now make, has been ever made by any belligerent upon a neutral government, or acceded to by a neutral government.
Passing, however, to the observations in your letter now before me, her Majesty’s goverment cannot acquiesce in your assumption that the governments of nations incur any responsibility for wrongful and fraudulent acts committed by their subjects against friendly nations by not taking positive measures of their own, manifesting either the determination to repress such acts on the part of their subjects, or the desire to repair them after they have been committed. It is a general principle that each nation deals only with offences committed against its own laws, and is not called upon to carry into effect, or to aid in carrying into effect, the laws of foreign nations against persons who may have violated them, and who may be found within its territory.
England, France, and the United States have constantly, either by diplomatic acts, or by decisions of their tribunals, expressed their opinion that, upon principles of international law, irrespective of treaty, the surrender of a foreign criminal who has taken refuge within their territory cannot be demanded. Such a criminal has not offended against the law of the country in which he is found, and that country is not bound to take notice of his having violated the law of a foreign State; and therefore, by parity of reason, neutral nations are not bound to punish their subjects for offences committed only against the laws of war as enforced by belligerents, nor to restore property rescued by their subjects from foreign captors.
It is notorious that a nation takes no notice of offences either begun or committed, or carried out and concluded, within its territory against the fiscal laws of another nation; it lends such nations no aid in enforcing those laws, or in apprehending or punishing those who break them; it does not restore property brought into its territory out of a foreign state by smuggling; it does not interfere with property in its territory or on board its vessels “in transitu” to be smuggled into a foreign state; it incurs no international responsibility by tolerating the acts of persons engaged in such transactions; it does not attempt by any positive measures of its own to manifest either the will to repress the commission of the act or the desire to repair it after it is done.
The principle on which the foreign enlistment act is founded is broadly distinguishable from, and is a plain exception to, what I have now stated. Attempts on the part of the subjects of a neutral government to take part in a war, or to make use of the neutral territory as an arsenal or barrack for the preparation and inception of direct and immediate hostilities against a State with which their government is at peace, as by enlisting soldiers or fitting out ships-of-war, and so converting, as it were, neutral territory into a hostile depot or post in order to carry on hostilities therefrom, have an obvious tendency to involve in the war the neutral government which tolerates such proceedings. Such attempts, if unchecked, might imply, at least, an indirect participation in hostile acts, and they are, therefore, consistently treated by the government of the neutral state as offences against its public policy and safety, which may thereby be implicated. But these acts are widely different from such offences against the laws of war exclusively as attempts by merchant ships to break blockade or the rescue of an individual ship from her prize crew. Not only in the case of neutrals in war, but in all cases falling within the same general principle, the nation to whom the parties complained of belong leaves to other nations who may suffer by the acts of such parties the infliction of the penalty. It may happen that the nation receiving the injury may have an opportunity of resenting it should [Page 112] it, perchance, catch the offenders within its jurisdiction. Had the Emily St. Pierre fallen a second time into the hands of a United States cruiser, a prize court of the United States would, in all probability, have condemned the ship and cargo. Nor would her Majesty’s government have complained of a condemnation judicially pronounced in accordance with the law of nations.
Her Majesty’s government, in adhering to this line of conduct, are, therefore, acting in accordance with reason, policy, and the common and universal usage of nations in like cases.
You speak of the rescue of the Emily St. Pierre as being a fraud by the law of nations. But whether the act of rescue be viewed as one of fraud or of force, or as partaking of both characters, the act was done only against the rights accruing to a belligerent under the law of nations relating to war, and in violation of the law of war; which, whilst it permits the belligerent to exercise and enforce such rights against neutrals by the peculiar and exceptional right of capture, at the same time leaves to the belligerent alone the duty and confers upon him the power of vindicating such rights and of enforcing such law. The same law not only does not require, but does not even permit, neutral nations to carry out belligerent rights.
You allude to the conduct of the United States government in the case of the Trent; but the flagrant wrong done in that case was done by a naval officer in the service of the United States; the prisoners whose release was demanded were in the direct custody and keeping of the executive government, and the government of the United States had actually the power to deliver them up, and did deliver them up, to the British government. But the Emily St. Pierre is not in the power of the executive government of this country; and the law of England, as well as the law of nations, forbids the executive government from taking away that ship from its legal owners.
I do not think it necessary to dwell, or even to remark, on the observations which you repeat in your present letter as to the terms of her Majesty’s proclamation, and as to the course which you suggest her Majesty’s government should adopt for giving effect to them.
I can only again assure you that her Majesty’s government have been most careful in observing strictly that impartial course which neutrality enjoins.
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
Charles Francis Adams, Esq., &c., &c., &c.
Mr. Adams to Earl Russell.
My Lord: I have the honor to acknowledge the reception of your lordship’s note of the 12th instant, in reply to mine of the 28th of May last, on the case of the ship Emily St. Pierre. As I do not perceive that its contents materially change the nature of the issue that had been already made up, I shall content myself with the transmission of a copy, to complete the correspondence on the subject, to the government of the United States.
I pray your lordship to accept the assurances of the highest consideration with which I have the honor to be, my lord, your most obedient servant,
Right Hon. Earl Russell, &c., &c., &c.