Dispatch from the Count of Nesselrode to Baron Brunow.

The cabinet of Saint Petersburgh adheres completely to the principles which have served as the basis to the demand of the cabinet of Vienna. Russia is too much interested in the maintenance of the independence of the secondary states and in the repose of Italy, and for this reason cannot but associate itself in this case with the sentiments and political views of Austria.

According to the rules of public right, such as they are understood by Russian policy, it cannot be admitted that a sovereign, obliged, as was the Grand Duke of Tuscany, by the obstinacy of his rebellious subjects to retake a city occupied by the insurgents, should be obliged to indemnify foreign subjects who may have suffered damages in consequence of the assault undertaken against that city.

When a person installs himself in a country other than his own, he accepts the possibility of all the dangers to which he may be exposed in that country. Leghorn revolted; it was necessary to employ arms to reduce it. Some English proprietors have participated in the damages experienced by the native proprietors. Why should they alone have the right to be indemnified for their losses, when the Tuscan government does not indemnify its own subjects?

These reasons are so clear, that Tuscany, having applied to the Emperor, asking his arbitrament, the Emperor, notwithstanding the lively interest which he has for Tuscany, has not been able to accede to its desire. It is not a question of figures, more or less in amount, which is treated of, but of a principle, which his imperial Majesty cannot admit—that is to say, the principle of any indemnification whatever claimed as a legitimate right, much less when it is sought to exact it by force. It would have appeared that he implicitly sanctioned it had he offered his arbitration to the two parties, supposing England had consented to adopt the expedient.

As Tuscany is disposed to tender conciliatory explanations, it could not enter into the intentions of the Russian government to dissuade it from a friendly arrangement with the English government. But the Emperor hopes, from the justice and moderation of the English government itself, that it will not, to obtain it, employ other than conciliatory means also; and the imperial cabinet ought, in so much as it is concerned, at once to make its reservations as to all that which it considers as in small conformity with the recognized maxims of the law of nations.

The cabinet of London ought to recognize that one of the gravest questions for the independence of all the states of the continent is being treated of. In effect, if what England attempts to establish at this moment with respect to Naples and Tuscany should come to be admitted as a precedent, it would result in placing British subjects abroad in an [Page 365] exceptional position, very superior to the advantages enjoyed by the inhabitants of the other countries, and a situation intolerable for the governments who receive them.

Instead of being, as up to the present time, a benefit to the countries where they establish themselves, and to which they bring, with their wealth and industrial resources, the habits of morality and order which so honorably distinguish the English people, their presence would be a perpetual inconvenience, and, in certain cases, a real affliction. Their presence would be, for the promoters of insurrections, a stimulant to revolt, because, if behind the barricades there should be continually raised the threatening eventuality of future reclamations in favor of English subjects who may have received injury in their property by the suppression, all sovereigns, whom their positions and respective weakness expose to the coercive measures of an English fleet, would become powerless in the presence of an insurrection; they could not dare to use coercive means, and if they used them, would have to examine the details of the operation, estimate the necessity or uselessness of this or that strategic measure, which might expose the English to suffer losses; they would have, finally, to recognize the English government as judge between sovereign and subject in matters of civil war and of interior government.

The Emperor cannot, then, subscribe to such a theory. He will never compromise in the matter of the principles which he has just set forth. For, very much disposed as he may be, and as he always has been, to receive with benevolence individuals belonging to the British nation, his esteem for whose character is known, if claims like those which have been made against Naples and Tuscany may be sustained by force, he would be under the necessity of examining and of fixing in a more formal way the conditions upon which he will henceforth consent to allow to British subjects the right of residence and of property in his states.

The Russian government hopes that the English cabinet will accept these reflections in the impartial spirit in which they have been dictated, and that it will not lose sight of them in the course which it may adopt with respect to Naples and Tuscany. The cause of these is that of all weak states whose existence guaranteed alone by the maintenance of the tutelar principles which have just been invoked. At the present moment, more than ever, the respect of these principles by the great powers alone can preserve Europe from the greatest disturbances.

You will communicate to Lord Palmerston this dispatch, and you will give him a copy of the same.

NESSELRODE.

(See Torres Caicedo, p. 348.)

The United States followed these precedents when declining, in 1868, the request of our citizens that we should ask indemnities for their losses sustained in the bombardment of Valparaiso. See opinion of Attorney-General Stanbery, (12 Opin, page 21.) See also correspondence between Mr. Secretary Marcy and the Count de Sartiges. (Ex. Doc. No. 9, Senate, 35th Congress, 1st session.)

3.—captures by federal cruisers.

The rule on this subject was laid down, in terms which have become classical and accepted as the standard authority in all Europe, by Lord Mansfield, in the memoir on the Silesian loan:

The law of nations, founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long usage, does not allow of reprisals except in case of violent injuries directed or supported by the state, or justice absolutely denied in re minime dubia by all the tribunals, and afterward by the prince. Where the judges are left free, and give sentence according to their conscience, though it should be erroneous, that would be no ground for reprisals. Upon doubtful questions, different men think and judge differently; and all a foreigner can desire is, that justice should be impartially administered to him, as it is to the subjects of that prince in whose courts the matter is tried.

That our admirality courts had all the intelligence and impartiality that can be required was repeatedly admitted by leading members of the British government during the rebellion. The following extracts are selected for the reason that the speeches from which they are taken were made at a late period of the war, and after a very great number of adjudications had been made, and had become known to the British government.

[Page 366]

On the 12th February, 1864, in reply to strictures on some decisions in prize-cases, the attorney-general, Sir Roundell Palmer, said, in the House of Commons:

Though in the judgments of the United States prize-court there may be passages open to criticism upon I matters of legal theory, and although I am far from saying that they have always applied the principles of law correctly to the facts of the case, yet I am not aware of one single decision pronounced during the war in any one of those courts which does not bear upon the face of it signs of an honest intention to administer the law as received in the United States; and the case of the Springbok is no exception to that rule. In all the three points to which my honorable friend has referred, whether or no the principles were rightly applied to the facts and evidence, the decision come to was based on principles, be they right or be they wrong, which were principles of bur own prize-courts in the war with France.

In the same debate Lord Palmerston said:

I think it right, however, to state, with regard to the Government of the United States, what has indeed been already stated by my honorable and learned friend, the attorney-general, that we have no reason to mistrust the equity and independence of the tribunals of the United States which have to try questions such as those now under discussion; and it is but due to the Government of the United States to say that they have invariably received our representations in a spirit of respect, equity, and justice. And in proof of this, to show that, when we had a strong case of remonstrance, justice has been done to us by the United States, I need only refer to the case of the Trent, in which the Government of the United States very handsomely and properly did justice to the demands we made, and the rights they did not deny. Therefore, I think it is prejudicial to the good understanding between the two governments, which are on good terms, that we should here accuse a foreign government of that of which it is not guilty, and express mistrust of their equity and fairness when nothing has occurred to justify us in making these imputations. I think it only right, in regard to the tribunals and Government of the United States, to declare that such accusations are not just, and that nothing has occurred to warrant them.

The confidence of each of the two governments in the integrity and ability of the prize-courts of the other has, since all the transactions which can come under examination by the high commission, been evinced by an act without parallel in diplomatic history.

The additional convention in relation to the slave-trade, concluded June 3, 1870, provides:

Article III.

It is agreed that in case of an American merchant vessel, searched by a British cruiser, being detained as having been engaged in the African slave-trade, or as having been fitted out for the purposes thereof, she shall be sent to New York or Key West, whichever shall be most accessible, for adjudication, or shall be handed over to a United States cruiser, if one should be available in the neighborhood of the capture; and that in the corresponding case of a British merchant vessel, searched by a United States cruiser, being detained as having been engaged in the African slave-trade, or as having been fitted out for the purposes thereof, she shall be sent for adjudication to the nearest or most accessible British colony, or shall be handed over to a British cruiser, if one should be available in the neighborhood of the capture.

* * * * * * *

Under this provision, Great Britain submits to the adjudication of our courts the validity of captures made by her own cruisers, and it results from this and from the fifth article of the original treaty, (12 Stat., 1232,) that if an American court pronounces against the capture of an American vessel by a British cruiser, and awards restitution with damages, the British government stands engaged to pay such damages within one year.

4.—treatment of british subjects as to personal rights—arbitrary arrests—compulsory military service, etc.

This head of possible inquiry by the high commission is treated with such general candor and fairness by Professor Mountague Bernard, in [Page 367] Chap. XVI of his “Neutrality of Great Britain during the American Civil War,” and in Mr. Abbott’s memorandum, appended to the report of the British commissioners on the laws of naturalization and allegiance, from which Professor Bernard makes considerable citation, that it seems unnecessary to do more than refer the high commission to those papers.

It may be convenient, however, to furnish references to some of the authorities which establish the liability of persons domiciled, for commercial purposes, in a belligerent region to be treated as indistinguishable from the active enemies, in the midst of whom they are found.

Professor Abdy’s edition of Kent on International Law, chap, v., being section iv of Kent’s Commentaries, vol. 1, page 75, et seq., of original pagination; Wildman Inter. Law, vol. 2, page 49 and page 78; Phillimore, vol. 3, page 128; Calvo, tome 1, page 292; The Pizarro, (2 Wheaton, 246;) Laurent’s case, joint commission under treaty of 1853, between the United States and Great Britain, page 120 et seq.

Note.

Since these instructions were given a British blue-book, relating to the “Claims of British subjects against the United States Government, from the commencement of the civil war to the 30th of March, 1864,” which had been reprinted in the diplomatic correspondence, submitted to Congress in the year 1864, (Diplomatic correspondence, 1864, part I, page 736,) has been reprinted in one of the leading journals of the country, with a view undoubtedly of enabling the public to see that most of the claims described in it have been disposed of.

An analysis of that document shows the following results:

Three hundred and twenty-one cases of the four hundred and fifty therein enumerated have been disposed of.

Of these forty-three were cases in which the British government refused to interfere, on the advice of the law officers of the Crown.

One hundred and sixty-seven cases have been condemned by the prize-courts of the United States. With the exception of one case, that of the Springbok, the Department of State is not aware of a disposition on the part of the British government to dissent to any final adjudication of the Supreme Court of the United States in a prize-case. The Supreme Court has in several cases reversed condemnations made by the inferior tribunals of prizes, in some of which Congress has made appropriations for the indemnification, of the owners of the property captured.

In most of the cases where it is stated that vessels have been condemned, but that appeals are pending, the condemnations by the courts below have been sustained.

In sixty-three cases it appears that property taken by the United States has been restored, and that persons imprisoned, or said to have been illegally enlisted, have been released.

While the conferences were being held in Washington, a correspondence was going on in England between the foreign office and British subjects residing in France, and preferring claims for the loss of property since the entry of the German army into France. A portion of this correspondence has been published in Blue-Book No. 4, for 1871, Franco-German War. The following letters from this publication bear directly upon the questions considered in this portion of the “confidential memorandum.”