Hume Burnley to William H. Seward, February 23, 1865

Mr. Burnley to Mr. Seward

Sir: Her Majesty’s government have considered, in communication with the law officers of the Crown, the note which you did me the honor to address to me on the 14th December last, relative to the apprentices of the Cuzco, and the determination come to by the United States government, not only to refuse compensation in the case of the two apprentices, but even to refuse to deliver them up, alleging as a ground for this refusal the proceedings of her Majesty’s government in the case of the United States ship Iroquois.

I am now instructed to state that her Majesty’s government are unable to follow the principle or reason of the resolution thus taken by the United States government.

They consider that the United States government must have been well aware, when the former application of Lord Lyons concerning these deserters was met by the liberal and satisfactory answer given to it, that their delivery was not and could not be claimed by her Majesty’s government as of right, but could only be asked from the comity and good will of the United States government. It is in the power of the naval officers of the United States (as it would be in that of her Majesty’s naval officers in a like case) to deliver up on the high Seas, or in any foreign port, Under the instructions of their government, deserters from foreign vessels who may without lawful authority be found on board one of the ships-of-war of the United States. This was all that was asked from the United States government, and this it was agreed should be done. But when a foreign deserter is on shore in Great Britain, (and her Majesty’s government presume the case would be the same in the United States,) the power of her Majesty’s naval officers and of her Majesty’s government itself over him is at an end; he can then only be detained or delivered up for some cause authorized by the law of the land.

The case of the seamen of the Iroquois fell under this latter category, and the United States government when they agreed to give up the deserter from the Cuzco cannot well have supposed that desertion from a foreign vessel was an offence cognizable by the laws of Great Britain, so as to warrant the interference of any magistrate in this kingdom with the personal liberty of such a deserter, the case being clearly not provided for by the extradition treaty between the two countries.

Her Majesty’s government instructed, therefore, their representative at Washington to ask for a thing which the United States government was legally competent to grant, in a matter not falling within the local jurisdiction of any court or magistrate of the United States, and the request was promptly and liberally acceded to.

I am directed, further, to state that the application to the magistrate at Dover was one which he was incompetent by law to grant; that it was made in a matter which could only be dealt with in the ordinary course of the law, and was refused, not for any want of comity towards the government of the United States, but from mere legal necessity.

It is of course for the government of the United States to judge what course is most suitable to their dignity and honor, but her Majesty’s government, feeling what their conduct would be in similar circumstances, expect that when the difference of the two cases is explained, the government of the United States will consider their decision to retract the promise previously given.

I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,