Mr. Seward to Lord Lyons.
The undersigned, Secretary of State of the United States, has submitted to the President the copy which was delivered by Lord Lyons to the undersigned of the despatch of Earl Russell to Lord Lyons, under the date of December 17, 1862, and which contains a review of the note which was addressed by the undersigned to the honorable William Stuart, her Majesty’s charge d’affaires near this government, on the third day of October last.
Earl Russell continues a discussion which was opened by Mr. Stuart concerning certain proceedings of the collector of customs at New York, which were said to affect British trade through that port with the Bahamas.
The undersigned finds no occasion for maintaining so broad a proposition as that which is in some sort attributed to him by Earl Russell, namely, that no act whatever done within the territory of the United States, and authorized by Congress, can be inconsistent with the engagements contained in the treaty between the two countries which was concluded in the year 1815.
The undersigned has intended simply to insist that Congress may, without violating that treaty, direct within the jurisdiction of the United States any modification of commercial intercourse necessary in a state of civil war which, not being in violation of the law of nations, is essential to the public safety, provided that it imposes no prohibition upon subjects of Great Britain which is not equally imposed upon the subjects of all foreign powers and upon citizens of the United States.
The undersigned is happy to agree with Earl Russell that Congress could not, consistently with the treaty, enact a law which should prohibit any trade with the Bahamas, unless her Majesty would engage to prohibit and prevent all trade between the Bahamas and the Confederate States. But the undersigned does not find in the despatch of Earl Russell any satisfactory demonstration that what has been done at the custom-house at New York was the use of the machinery of an act passed in vague and general terms for practically the same purpose, and therefore in truth the same thing.
The undersigned also fully admits the principle for which Earl Russell contends, that the laws and statutes to which the trade under the treaty is to be. subject must be definite laws and definite statutes, which foreigners can understand and observe as practical rules for their government while within the United States territory, not laws, so-called, which authorize subordinate officers of the government to give or withhold at their discretion those rights which the United States have engaged by the treaty to secure to British subjects. But the undersigned must again insist that the act of Congress which has elicited the criticism of Earl Russell is, in all respects, just such a definite statute as the principle thus acknowledged contemplates. The object of the statute is to authorize the collector to refuse permits for merchandise which may be designed to supply the insurgents in arms, or of which there may be a danger that they will fall into the hands of the insurgents. The existence of design in the first of these cases, and the existence of the imminent danger in the other, are facts which must frequently, if not always, be determined by an examination of circumstances. That examination and determination must be made by some agent of the government, and it seems to the undersigned that there is no more vagueness in the language by which the power to make them is conferred upon the collector of customs, than there is in the language of a statute which directs a magistrate to arrest offenders, or prevent apprehended crimes, when he is convinced, on satisfactory grounds, that crimes have been perpetrated or proposed. For the exercise of the proper caution and justice in the case, the subordinate [Page 490] officer is responsible to the government, and the government itself is responsible to all parties concerned.
A desire to guard against misapprehension, rather than any bearing of the statement upon the subject under discussion, requires that the undersigned shall express his dissent from the position assumed by Earl Russell, namely, that the present case is not one of the prohibition of any article the growth, produce, or manufacture of the United States, or of her Britannic Majesty’s territories, or Europe, within the meaning of the third clause of the second section of the treaty of 1815. Upon a careful re-examination of the treaty, the undersigned finds no words therein which seem to confine the operation of that clause to general prohibitions of the exportation of specified articles, and exclude a prohibition of particular articles not generally prohibited by particular shippers on particular occasions, unless certain exceptional conditions, not required by the law in other cases, are complied with. The comprehensive brevity with which the treaty is expressed, seems to the undersigned to render it proper to give a general application of the terms of this clause to legal prohibitions, of whatever kind, upon whatsoever case, or under whatsoever circumstances they may be made.
The undersigned must again declare that he is unable to find in the papers which this discussion has produced any evidence whatever that the act of Congress has been administered so as to apply invidiously, or even discriminatingly, against Great Britain. It does not, certainly, appear that none but British shipments, in contravention of the act, have been prevented by the collector at New York. If such, however, should be the case, the proper inference to be drawn from it would seem to be, that no such shipments by any persons other than British subjects had been attempted.
The undersigned is obliged to confess that he labors under the same difficulty now that embarrassed him at the earlier stages of this discussion, as to the connexion which Earl Russell has attempted to establish between these principles and the blockade. The undersigned must still insist that the act of Congress, and the proceedings which have been taken under it, have had reference to the preventing of supplies through the ports of this country to the insurgents in arms against its authority, by refusing permission to all classes of persons within their jurisdiction, whenever there was a design to carry such supplies, or imminent danger that they would fall into the hands of the insurgents.
In conclusion, while the opinions which Earl Russell has expressed upon the transactions which have been reviewed are not admitted to have sufficient foundation, the undersigned has great pleasure in assuring the British government that the laws of the United States will continue to be executed in such a way as to afford no just ground for complaint of partiality or injustice; and he still remains open to receive, and ready, so far as is possible, to redress, any complaint of any past injustice that shall be presented with sufficient certainty of statement, and reasonable evidence to support it.
The undersigned avails himself of this opportunity to renew to Lord Lyons the assurance of his high consideration.
Right Hon. Lord Lyons, &c., &c., &c.