Navy Department,
30 Sept. 1863.
SIR:
Since the interview with you some weeks since, in relation
to certain proposed instructions to our Naval Officers, I have, as suggested,
given the subject careful and thorough investigation, and am fully satisfied
that neither in British law nor British practice is there any authority or
precedent for such instructions. As Her Majesty's representative has introduced
the subject, I have embodied what I believe to be the law and usage on the
several points, in a distinct paper, which can, if you think proper, be
submitted to Lord Lyons, and if I have in that document done injustice in any
respect to British authority and British usage, or misapprehended or misstated
international law, I shall be happy to be corrected.
Permit me in this connection to express my surprise and
regret that the British Minister should so persistently insist on interfering
in matters that belong to the Prize Courts, and on which he should not be heard
from diplomatically, as, were Great Britain in our case and we in hers, the
American Minister in London would not be heard diplomatically until judicial
remedies have been exhausted. His right to be heard in the Court of Prize,
according to its rules of procedure, and in the proper cases, is unquestioned.
If the Court, after its appellate jurisdiction is fully exhausted, should fail
to do justice in any
case then undoubtedly, and not till then, diplomacy may properly come in. But I
do not understand by what authority Her Majesty's Minister intervenes at all,
even in the Prize Courts by suggestion, or before you, in cases where the
violation of territorial immunities of Neutral powers, other than Great
Britain, is in question.
If our Naval Officers violate the sovereignty, or the
neutrality, or the municipal regulations, of a neutral state, we are, first in
our Prize Courts and then diplomatically, amenable for that violation to the
neutral state itself, and not to Great Britain, even though the act of
violation has been perpetrated there by us upon a British vessel. There is no
principle of international law better settled than this, and I respectfully
insist that no one but the sovereign of the neutral territory which is
violated, has the slightest right to allege or suggest such violation, even in our
prize courts, and much less diplomatically.
As regards persons on board of captured neutral vessels the
best rule of law is that they shall be sent in as witnesses; the requirement of
law is that some be sent in; and if the captor fails to send them all in, he so
fails at his peril of not sending enough; and if he sends them all in, all
being neutral, no one has the right anywhere to complain of him, provided only
that he had probable cause for capturing the ship.
But in the war in which we are now engaged, it must be
remembered that no inconsiderable portion of the persons captured on some of
the vessels, claiming to be neutral, are rebels. It is impossible for the
captor to decide who, or how many are rebels. It certainly is not advisable to
go counter to the rule so framed by all the Courts, nor to release captured
rebel prisoners.
I am not unaware of your strong desire to conciliate Great
Britain and to make all reasonable concessions to preserve friendly relations
with her. In this feeling I cordially participate. But my earnest conviction is
that we shall best command the respect which insures peace, by firmly, but not
offensively, maintaining our rights; and in no way can amicable relations with
Great Britain and others be so surely maintained as by our claiming only what
is right, by surrendering nothing that is clearly and indisputably our own, and
by referring always the question of what our just rights are to those tribunals
of Prize, which are instituted by the consent of nations to adjudge these points,
under the law of nations and in the interests of peace, by reason of the
acknowledged inability of diplomacy, even in the most skilful hands, to deal
satisfactorily, before-hand, with these complicated questions as they arise.
I am, respectfully,
&c.
Gideon Welles,
Secty of Navy.
The President.
SOURCE: Gideon Welles, Diary of Gideon Welles,
Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30,
1864, p. 452-3
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