Lyons to her Majesty’s consuls in southern States, December 12, 1861
Circular addressed by Lord Lyons to her Majesty’s consuls in southern States.
Sir: Her Majesty’s secretary of state for foreign affairs has under his consideration, and has referred to the proper law advisers of the crown, a despatch, dated the 31st of July last, from her Majesty’s consul at Charleston, applying for instructions with regard to the question of the liability of British subjects to perform military service in this country.
With reference to my previous instructions to you on this subject, I have to state to you that the question which has now practically arisen, under very peculiar circumstances, is one not admitting of a satisfactory solution by being left to the determination of the ordinary municipal laws and courts of the several States, as might be the case under ordinary circumstances.
Whilst her Majesty’s government might be well content to have British subjects voluntarily domiciled in a foreign country, liable to all the obligations incident to such foreign domicile, including, where imposed by the municipal law of such country, service in the militia or national guard, or local police, for the maintenance of internal peace and order, or even, to a limited extent, for the defence of the territory from foreign invasion, it is not reasonable to expect that her Majesty’s government should in the present state of things in this country remain entirely passive under the treatment to which it appears British subjects are actually exposed in some of the States; such, for instance, as being embodied and compelled to serve in regiments, perhaps nominally of militia, while they would be really exposed not only to the ordinary accidents and chances of war, but also to be treated as rebels and traitors in a civil war, involving many questions in which they, as aliens, cannot, simply by reason of their domicile, be supposed to take interest, as to which they may be incompetent to form an opinion, and in the determination of which they are precluded from freedom of choice and action. No state can justly frame laws to compel aliens resident within its territories to serve against their will in armies ranged against each other in a civil war, and à fortiori, in the absence of any such law, they cannot enforce the service.
I was, however, able to state on the 4th of July last, that in no case, either in the northern or southern States, had the discharge of a British subject, enlisted against his will, been to my knowledge refused or delayed, on proper representations being made by one of her Majesty’s consuls or by myself; and her Majesty’s government have therefore concluded that the desired exemption is practically conceded. Should this, however, not continue to be the case, her Majesty’s government will consider whether it is not expedient to invite those foreign governments which are interested in this question to unite with them in such representations as may be likely to secure to aliens the exemptions which would be now so highly desirable.
Her Majesty’s government assume that there is no hope of securing in practice, especially in South Carolina, any legal decision of a competent court favorable to the exemption as a matter of right.
I am, &c.,