Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session Thirty-eighth Congress, Part II
Mr. Seward to Lord Lyons.
My Lord: Referring to your communication of the 13th ultimo, in which under the instruction of her Majesty’s government, your lordship presents the views taken by them of the conduct of the military officers and of the government of the United States in regard to the case of James Hardcastle who came to his death from the effect of a shot fired by a sentinel at the Old Capitol prison. I have the honor to enclose in reply, a copy of letter of the 8th instant, from the Secretary of War, and of the report of Judge Advocate General Holt which accompanied it.
Having carefully considered your lordship’s note, and having weighed the report of General Holt with equal care, I feel compelled to adopt the conclusions of the latter.
have the honor to be, with high consideration, my lord, your obedient servant,
Right Hon. Lord Lyons, &c., &c., &c.
Mr. Stanton to Mr. Seward.
Sir: I have the honor to transmit, herewith, a copy of the opinion of Judge Advocate General Holt to whom agreeably to the request made in your letter of the 16th ultimo, the copy of the note of Lord Lyons which accompanied it, relative to the death of James Hardcastle, from the effect of a shot fired by a sentinel at the Old Capitol prison, where he was confined, was referred for a review of the whole case.
I am, sir, your obedient servant,
Hon. William H. Seward, Secretary of State.
Mr. Holt to Mr. Stanton.
In the case of John Hardcastle, a British subject, referred to me for report under your indorsement of the 17th instant, I have the honor to submit as follows :
In this case a formal report was made from this office under date of October 22d last, in which the facts in regard to the arrest and confinement of this party, and his subsequent death at the Carroll prison, in Washington, where he was accidentally shot by a sentry, were set forth at length. The conclusion was there arrived at that such arrest and detention in confinement were fully warranted, and that his death was a natural consequence of his persistent disregard of the salutary rules of discipline established at the prison.
These views having been adopted by this government, and formally made known to the British minister, the latter has now, under date of the 13th instant, communicated anew with the honorable Secretary of State in regard to the case of Hardcastle, which has thus been reopened for consideration.
In this communication, which has been referred to this office, Lord Lyons re-monstratef against the proceedings of this government in the case, and bases his remonstrance upon the following grounds:
(1.) That Hardcastle having once been formally received within the federal lines, under a flag of truce, became entitled, to all intents and purposes to the privileges of what is known in international law as a safe conduct; that he was therefore entitled to pass without restraint through our territory, and that his detention and imprisonment were without justification.
(2.) That the reasons given by the United States government for the original arrest of Hardcastle, to wit, that he had been engaged in a violation of the laws of war, are insufficient, inasmuch as no evidence of such guilt is shown to have been made to appear at the time of the arrest. That, on the contrary, the only evidence thereof which is presented is shown to have been deduced after his imprisonment and to consist of admissions made by him to the superintendent of the prison.
(3.) That upon the first investigation of the matter as reported to her Majesty’s government, it was not mentioned that Hardcastle, as well as Pleasonton, had extended his head above the screen before the prison window at the time of the shooting; that a statement to this effect was made only upon the second investigation [Page 652] of the facts on the case, and that it is hardly possible to conceive that so important a statement, if true, should not have been presented at the outset.
Upon these grounds, it is represented by the British minister that the explanation made by our government in regard to the proceedings which led to the death of Hardcastle is deemed unsatisfactory, and that her Majesty’s government reserve to themselves the right of presenting a claim for compensation to the government of the United States, should any such be hereafter advanced by the relatives of the deceased.
To the several arguments put forth in the remonstrance of Lord Lyons it is answered briefly as follows :
1. That the reception of a person within military lines, under a flag of truce, can be held to operate as a safe conduct, allowing him a free passage within the territory of the power whose lines he has entered, is a proposition believed to be quite unsupported by the authorities upon public law. The safe conduct and the flag of truce are conceived to differ most materially both in their nature and in their purpose. The former, like a passport or safeguard, in connxtion with which it is treated in the books, is a formal and specific instrument in writing, issued by the sovereign authority, and generally to an enemy, and for some purpose of public policy. It authorizes, in terms, the party to whom it is issued to pass through the territory of the sovereign alone, or with his family, servants, and effects, as the case may be. It is more commonly granted to a public minister, (Poison, p. 98,) or to some personage entitled under the comitas gentium to such privilege, to whom the sovereign is thereupon bound to afford full protection against any of his subjects or forces, and whom he must indemnify for any injury that may be sustained by reason of a violation of the security thus solemnly guaranteed. At the same time, since the privilege granted is “so far a dispensation from the legal effects of war, the instrument of safe conduct is always strictly construed,” and it is usual to set forth therein “every particular branc h and extent of the indulgence “thereby conveyed. See 1 Kent, p. 162 ; Vattel, ch. 17 ; Woolsey, sec. 147.
The flag of truce, on the contrary, is a much simpler and more familiar proceeding. It is used for a great variety of purposes; is not limited to persons or subjects, and the object of its employment is not required to be stated in writing. In many cases during a cessation of active operations, it is no more than an informal means of communication established between armies for mutual convenience. But beyond affording a safe communication and transit from the one to the other, it is conceived to be ordinarily, and in the absence of any special convention, without efficacy. The protection which it insures is understood to be temporary and limited; and that this should be continued after the immediate mission of the flag has been accomplished is believed never to have been intended, since such an extension of its privilege would be to disarm the ordinary police jurisdiction to which all strangers entering the lines of an army are required to be subjected.
At the time of the arrival of Hardcastle, the flag-of-truce boat on the Rappahannock had become a frequent means of passage between the two armies, then comparatively inactive. Under these circumstances it was inevitable that parties personally unknown to the authorities should sometimes be received within our lines whose character and antecedents could not at the moment be disclosed. Such persons, therefore, were necessarily received, subject to such examination and detention as might be deemed prudent and proper. Protected by the flag during their transit, they were regarded as prima facie entitled to enter our lines, but while so far privileged they were not exempted from the ordinary police control, or regarded as having an unquestionable claim to a passport to proceed to the north.
The rules thus adopted in our armies, and, as it is understood, in those of the enemy also, were found absolutely essential to the protection of the government [Page 653] against the designs of parties hostile to its interests, and are regarded as in no respect in derogation of the principles of public law in regard to the province of the flag of truce. It is submitted, therefore, that the reception of Hardcastle under the flag cannot be held to have entitled him to the privileges of a safe conduct through our territory, but that his detention upon the reasonable grounds of suspicion set forth in the original papers was a measure of which he had no right to complain, and which, whether it may have resulted in his speedy deliverance, in his being sent back to the enemy’s lines, or in his being held as a criminal, was fully warranted by the laws of war.
The distinction which has thus been presented between the privilege of a person who holds a formal safe conduct and that of one arriving at our lines under a flag of truce, is well illustrated by an observation of Vattel.
This writer, after speaking of the rights conveyed by a safe conduct, remarks as follows:
“The case is different from that of an enemy coming into our country during a truce; to the latter we have made no particular promise; he, at his own peril, takes advantage of a general liberty allowed by the suspension of hostilities. All we have promised to the enemy is to forbear hostilities for a certain time, and at the expiration of that term it is a matter of importance to us that we be at liberty to let the war take its course without being impeded by a variety of excuses and pretexts.” (Vattell, ch. xvii.)
With the same reason it may be said of one who takes advantage of the temporary truce, of which the white flag is the signal, that he is entitled to that advantage only while such truce endures. He comes to us under the suspension of hostilities, which, upon the exhibition of such a signal, is humanely permitted by belligerents. But he comes under no promise on our part for the future, and at his peril. At the expiration of the term of truce, to wit, after the flag has returned, it is a matter of importance, if not of absolute necessity with us, that we be at liberty to enforce the ordinary laws of war in regard to him, if suspected of being an enemy, and this without our being impeded by the technical excuse, on his part, that he is still entitled to the privileges of the truce, although that truce has come to an end.
But, further, even if it could be granted that Hardcastle, when admitted to our lines, was practically placed under a safe conduct, it is conceived that such safe conduct in nowise prevented his being detained in arrest for good cause. The authorities agree that the privileges of a safe conduct may be forfeited by the misconduct of the party to whom it is issued, and that he may, thereupon, , be restrained of his liberty for a reasonable time, or, in an extreme case, may be confined and treated as a captive.
Such is the case of one who, after having received a safe conduct, engages in intrigues against the state, or acts as a spy. In such an event if his guilt is evident, he may, as in the case of Andre, quoted by Woosley, (§ 147,) be seized and treated as a criminal; or in a case of less gravity, he may, as indicated by Vattell, (ch. xvii,) be detained for a reasonable time, de bene esse, and until the grounds for such detention have ceased to exist.
Where, then, as in the case of Hardcastle, a person previously quite unknown to our authorities is received within our lines, and upon examination of his papers a reasonable suspicion attaches, that he is travelling under an assumed character, and with false credentials, that in fact he has been engaged in violating the laws of war, may be not fairly be deemed a proper subject for at least the temporary detention warranted by the principle of law which has been cited? Can, therefore, our military authorities be regarded as having been involved in a breach of international law in forwarding the suspected party in arrest to the nearest point at which a proper inquiry could be instituted in regard to his antecedents? On the contrary, does not that law fully justify an arrest under these circumstances, as a precaution necessary in time of war, for the protection of the state against an insidious enemy ?
[Page 654]It remains only to add that the term “safe conduct” as introduced in the report of this office of October 22d last, in the course of the remarks made in regard to the flag of truce, in this case was employed, as will be seen by referring to the context, in the sense only in which it is sometimes used in common parlance, and not in its technical or legal sense, the safe conduct alluded to being limited to the protection given by the flag during the transit between two hostile armies.
2. The argument next advanced by the British minister to show that the arrest of Hardcastle was not justified has been received with some surprise, and must, it is conceived, be regarded as one of minor importance, not calling for an extended reply. It is true that the reasons which induced Brigadier General Patrick, provost marshal general of the army of the Potomac, to send Hard castle forward in arrest, do not fully appear. It is, however, officially reported that with him was transmitted a communication from that officer, in which the genuineness of the credentials produced by the prisoner was called in question; and it was no doubt on account of their apparent want of genuineness, (which must necessarily have excited a suspicion that the bearer was not what he as sumed to be,) that the arrest was deemed expedient. It is proper to infer that the provost marshal general exercised a prudent discretion in the matter, and that he was honestly persuaded that the arrest and further examination of Hardcastle would be for the public interest. His act has, therefore, been ap proved by the United States government, as that of an officer of rank and high character engaged in the careful and faithful performance of his duties.
But can the argument that this arrest was without cause be fairly or generously pressed at this late date, and after the full and voluntary confessions made by Hardcastle of his overt acts of hostility to this government have been brought to the attention of her Majesty’s government? These confessions thus freely and deliberately made, and appearing as they do in the formal detailed report of an officer specially called upon to communicate the precise facts in the case, are regarded by this government as evidence of a very high and most satisfactory character, and as none the less controlling because the party who made them is not now able, by reason of his death, to add any qualification thereto. They were evidently made intelligently, and in such a tone as to leave it to be supposed that the narrator took a pride in having committed the crimes which he disclosed, and it is deemed hardly possible to doubt that they were committed as confessed.
In view, therefore, of these personal statements, which, while they would have warranted the permanent confinement or trial of Hardcastle, certainly justify the suspicion entertained by General Patrick, is it not, it may be asked, a more liberal view of the case to approve the action taken by that officer, as at least the suggestion of an honest discretion, than, while excluding the light derived from the subsequent history of the case, to regard such action as an arbitrary and reckless proceeding ?
3. The third consideration advanced by Lord Lyons remains to be very briefly noticed. It is quite true that the facts in regard to the position of Hardcastle when shot by the sentry were not fully set forth upon the preliminary investi gation of the case as reported to her Majesty’s government. But in the report presented immediately after the occurrence—that of General Martindale, military governor, of June 15, 1863—it is not stated that Hardcastle was not leaning out of the window, or extending his head above the screen, but only that Pleas-anton, his comrade, was the person “chiefly guilty” in these respects. At the same time, it was remarked by that officer that it was intended to “examine the case fully and minutely,” and this, too, with a view to the trial of the sentry upon a charge of murder. Accordingly, in the subsequent and final report of this officer, of August 31 following, as well as in that of superintendent Wood of August 29, the precise facts, as they occurred, were set forth upon the testimony [Page 655] of eye-witnesses; and among other things it was disclosed that Hard-castle at the time of the shooting was looking over the screen of the window in company with his fellow-prisoner. Is it just to claim that this statement was untrue, because not made in an earlier and brief report, professedly incomplete, and preliminary to one which was to be based upon a full and grave inquiry and examination? As well might it be maintained that the testimony presented upon a formal criminal trial was not to be credited, because not adduced in all its details, upon the preliminary examination of the suspected party before a magistrate.
From these comments upon the communication of Lord Lyons it will be perceived that the conclusions of this office, as before expressed in this case, in regard to both the law and the facts, have been in no respect modified.
As heretofore the decided opinion is entertained that the arrest and detention of Hardcastle, in the first instance, were lawful and proper; that he was satisfactorily proved to have forfeited his rights of neutrality both by his overt acts of intense hostility to this government, and by his violation of the laws of war in his originally passing without authority from our territory to that of the rebels, and holding intercourse with the latter; that his continued confinement as a dangerous and bitter enemy was warranted by this proof; and, lastly, that he thoughtlessly if not wantonly exposed his life, by a persistent disregard of the regulations established for the security of his prison, as well as for his own well-being as a prisoner.
Hon. E. A. Stanton, Secretary of War.