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States, was the home of generations which, with all their peculiar Chap. IX. interests and passions, have passed away. She could in no other way SO effectually disavow any such injury, as we think she does by assuming now as her own the ground upon which we then stood.
"It would tell little for our own claims to the character of a just and magnanimous people, if we should so far consent to be guided by the law of retaliation as to lift up buried injuries from their graves, to oppose against what national consistency and the national conscience compel us to regard as a claim intrinsically right.
"Putting behind me all suggestions of this kind, I prefer to express my satisfaction, that by the adjustment of the present case upon principles confessedly American, and yet, as I trust, mutually satisfactory to both of the nations concerned, a question is finally and rightly settled between them, which heretofore exhausting not only all forms of peaceful discussion, but also the arbitrament of war itself, for more than half-a-century alienated the two countries from each other, and perplexed with fears and apprehensions all other nations.
"The four persons in question are now held in military custody at Fort Warren in the State of Massachusetts. They will be cheerfully liberated.
"Your Lordship will please indicate a time and place for receiving them.
"I avail, &c.
On the 30th December the prisoners were sent in a tug-boat from Fort Warren to Provincetown, a small sea-port in Massachusetts, forty miles from Boston. Here they were put on board Her Majesty's ship Rinaldo, and conveyed to Halifax, whence they subsequently found their way to England.
The reply of the British Government to the Government of the United States was conveyed in two despatches, one accepting the reparation offered, the other disputing the positions, and controverting much of the reasoning, by which that reparation had been accompanied :
Earl Russell to Lord Lyons.
"Foreign Office, January 10, 1862. "In my despatch to you of the 30th of November, after informing of the circumstances which had occurred in relation to the capture of the four persons taken from on board the Trent, I stated to you
Chap. IX. that it thus appeared that certain individuals had been forcibly taken from on board a British vessel, the ship of a neutral Power, while such vessel was pursuing a lawful and innocent voyage; an act of violence which was an affront to the British flag, and a violation of international law. I concluded by directing you, in case the reparation which Her Majesty's Government expected to receive, should not be offered by Mr. Seward, to propose to that Minister to make such redress as alone would satisfy the British nation, namely, first, the liberation of the four gentlemen taken from on board the Trent, and their delivery to your Lordship in order that they might again be placed under British protection; and secondly, a suitable apology for the aggression which had been committed.
"I received, yesterday, your despatch of the 27th ultimo, inclosing a note to you from Mr. Seward, which is in substance the answer to my despatch of the 30th of November.
"Proceeding at once to the main points in discussion between us, Her Majesty's Government have carefully examined how far Mr. Seward's note, and the conduct it announces, complies substantially with the two proposals I have recited.
"With regard to the first, viz., the liberation of the prisoners with a view to their being again placed under British protection, I find that the note concludes by stating that the prisoners will be cheerfully liberated, and by calling upon your Lordship to indicate a time and place for receiving them. No condition of any kind is coupled with the liberation of the prisoners.
"With regard to the suitable apology which the British Government had a right to expect, I find that the Government of the United States distinctly and unequivocally declares that no directions had been given to Captain Wilkes, or to any other naval officer, to arrest the four persons named, or any of them, on the Trent, or on any other British vessel, or on any other neutral vessel, at the place where it occurred or elsewhere.
"I find further, that the Secretary of State expressly forbears to justify the particular act of which Her Majesty's Government complained. If the United States' Government had alleged that, although Captain Wilkes had no previous instruction for that purpose, he was right in capturing the persons of the four prisoners, and in removing them from the Trent, on board his own vessel, to be afterwards carried into a port of the United States, the Government which had thus sanctioned the proceeding of Captain Wilkes would have become responsible for the original violence and insult of the act. But Mr. Seward contents himself with stating that what has happened has been simply an inadvertency, consisting in a departure by a naval officer, free from any wrongful motive, from a rule uncertainly established, and probably by the several parties concerned either imperfectly understood or entirely unknown. The Secretary of State goes on to affirm that for this error the British Govornment has a right to expect
the same reparation which the United States as an independent State Chap. IX should expect from Great Britain or from any other friendly nation in a similar case.
"Her Majesty's Government having carefully taken into their consideration the liberation of the prisoners, the delivery of them into your hands, and the explanations to which I have just referred, have arrived at the conclusion that they constitute the reparation which Her Majesty and the British nation had a right to expect.
"It gives Her Majesty's Government great satisfaction to be enabled to arrive at a conclusion favourable to the maintenance of the most friendly relations between the two nations. I need not discuss the modifications in my statement of facts which Mr. Seward says he has derived from the reports of officers of his Government.
"I cannot conclude, however, without adverting shortly to the discussions which Mr. Seward has raised upon points not prominently brought into question in my despatch of the 30th of November. I there objected, on the part of Her Majesty's Government, to that which Captain Wilkes had done. Mr. Seward, in his answer, points out what he conceives Captain Wilkes might have done without violating the law of nations.
"It is not necessary that I should here discuss in detail the five questions ably argued by the Secretary of State, but it is necessary that I should say that Her Majesty's Government differ from Mr. Seward in some of the conclusions at which he has arrived; and it may lead to a better understanding between the two nations, on several points of international law which may, during the present contest, or at some future time, be brought into question, that I should state to you for communication to the Secretary of State wherein those differences consist. I hope to do so in a few days.
"In the meantime it will be desirable that the Commanders of the United States' cruisers should be instructed not to repeat acts for which the British Government will have to ask for redress, and which the United States' Government cannot undertake to justify.
"You will read and give a copy of this despatch to the Secretary
"Foreign Office, January 23, 1862. "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
"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, residents 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 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
Vattel, lib. iii, cap. 7, sec. 118.
2 The Caroline (6 Chr. Rob., 461); cited and approved by Wheaton (Elements, part iv, chap. 3, sec. 22).
hostility against you. The enemy may have his hostile projects to be Chap. IX. attempted with the neutral State, but your reliance is on the integrity of that neutral State, that it will not favour 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 connection.' 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 repre