Mr. Burnley to Mr. Seward.
Sir: Her Majesty’s government have had under their consideration the note which you were good enough to address to Lord Lyons, on the 13th July, in reply to the one which his lordship had the honor of addressing to you, under instructions from her Majesty’s principal secretary of state for foreign affairs, on the 13th June last, relative to the imprisonment in the Old Capitol prison at this place of the late Mr. James Hardcastle, and his death in consequence of a shot fired by a sentry at that prison.
I am now instructed to state, that her Majesty’s government have learned with much regret the view taken of Mr. Hardcastle’s case by the United States government, and their refusal to offer compensation to the relatives of this unfortunate person. After a further and careful consideration of all the circumstances connected with this case, her Majesty’s government see no reason to modify their opinion with respect to it, as expressed in Lord Lyons’s notes of the 13th August, 1863,* and 13th June, 1864. I can, therefore, only repeat that her Majesty’s government considers that Mr. Hardcastle’s life was sacrificed by the carelessness of subordinate officers of the United States government, and by the bad regulations of the prison in which he was improperly confined.
Her Majesty’s government further consider that there are some portions of the report of the United States Judge Advocate General to the Secretary of War which ought not to be left wholly unnoticed.
If the construction which that officer places upon the meaning and effect of a safe conduct under a flag of truce is to prevail, it should be widely and generally known, for in substance it amounts to this—that the United States regard a flag of truce, when used for the purpose of soliciting and obtaining permission for a particular individual to pass and remain within their lines, as imparting no protection whatever to the person who may come under it into their territory. As thus interpreted it means, merely, that persons who bring it are not to be fired upon while they pass the space which intervenes between the lines of the enemies, and while the flag itself is exhibited; but that, as soon as they are within the lines of the United States, they may be treated in exactly the same manner as if they had been made prisoners of war. Her Majesty’s government affirm such a doctrine to be utterly at variance with international law, with the usages of all civilized states, and with the reason and justice upon which both are founded. Good faith, in matters of this kind, is a question of substance, and not (as international authorities seem to be interpreted by the Judge Advocate General of the United States) one of form. Whether the form be a written safe conduct, or a permission given (without writing) for the safe passage of an individual within the lines of a belligerent, the promise of safety is in substance the same; and the effect of such promise must continue (unless a limit was originally fixed to its duration) until it is revoked, after such a notice as may at least give the person relying upon it the opportunity of returning without molestation [Page 733] from the same belligerent to the place from which he came, or some other place of security. The necessary use of a flag of truce to obtain such a permission does not imply that the permission itself is to be nugatory as soon as that flag is withdrawn.
As regards the passage brought forward by the Judge Advocate General, in support of his views, from Vattel, cap. 17, I am instructed to state that the passage does not appear in any way to support the doctrine for the confirmation of which it is cited. That author is there not speaking of the protection afforded by a flag of truce to a person who is admitted under it to enter and remain in the enemy’s lines, but of a general suspension of hostilities for a limited period, after the lapse of which period, he rightly says, in the absence of any special condition, the enemy found in the territories of either belligerent is subject to the laws of war.
Her Majesty’s government do not dispute, that if Mr. Hardcastle had misconducted himself after he had been so received into the territory of the United States, he was liable to be arrested or imprisoned; but her Majesty’s government are of opinion that Mr. Hardcastle’s arrest and imprisonment, upon no ground whatever except upon vague suspicions as to his previous acts and history, derived from the very fact of his coming from the enemy’s lines, and from the papers produced at the time of his admission under promise of safe conduct, (for it is admitted that this expression was used, and it is vainly attempted to explain away its force,) was a plain violation of the good faith pledged to him, for which her Majesty’s government see no justification in any alleged necessities of the belligerent.
Under these circumstances, I am instructed to state that her Majesty’s government feel bound to reserve to themselves the right of renewing their application to the United States government for compensation to Mr. Hardcastle’s relatives, should they, at a future period, consider it to be their duty to do so.
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
Hon. William H. Seward, &c, &c, &c.
- 38th Congress, 1st session, Ex. Doc. No. 1, page 690.↩