Message of the President of the United States to the Two Houses of Congress, at the Commencement of the Second Session of the Thirty-seventh Congress
Mr. Pike to Mr. Seward.
[Extracts.]
The Hague, September 25, 1861.
Sir: I have the honor to enclose the communication from the Dutch government in reference to the Sumter case. Though dated the 17th, it did not make its appearance to me till the 20th.
You will perceive that the ground taken in regard to the harboring of the Sumter in the port of Curaçoa is, that it was the case of a vessel in distress.
This paper, however, goes beyond the case in hand, and argues the claim of the seceding States to be considered belligerents, and their rights as such, besides going over the whole ground of the rights of neutrals.
[Page 366]Baron Van Zuylen makes out to his own satisfaction that the secessionists hold that position, and that this carries with it the right of hospitality, in neutral ports, to their ships-of-war.
To my suggestion in my note of the 9th, that the Sumter was in no just sense a ship-of-war, but a privateer, or, as our government claims, a pirate, and that the want of the ordinary characteristics of a ship-of-war, besides the fact that she bore a strange flag of no recognized nationality, entitled us to ask of Holland, as a friendly nation, to assume her unlawful character. Mr. Van Zuylen opposes an argument to show that the Sumter was really a ship-of-war of the Confederate States, and that an impartial neutrality demanded that she be so treated. He finds his support of his position that this was the Sumter’s real character in the declarations of her captain and in the allegation of Harpers’ Weekly.
The minister of foreign affairs seems to admit the force of the argument I had previously urged, that it was inconsistent with all ideas of a just neutrality that these marauding vessels of the secessionists could be allowed to make free use of the neighboring ports of a power holding friendly relations with the United States, for hostile purposes, and this, too, while deprived of all shelter or resource at home. And, in reply to my earnest request that he would cause to be issued to the Dutch colonial authorities in the West Indies orders against such use of their ports, Baron Nan Zuylen de Nijevelt declares, under cover of his general principles, that orders shall be issued in the sense of forbidding the use of the Dutch ports as the base of operations against United States commerce, or, as he phrases it, by either of the belligerents.
In regard to this part of Mr. Van Zuylen’s communication, I will here observe that much will depend upon the character of these instructions, and not less upon the spirit in which they are executed. It is in the power of the Dutch government, and of its colonial authorities, to so act, upon the basis of the rule laid down on this head, as to avoid further cause of complaint on the part of the United States, and to effectually prevent these sea robbers from making use of the Dutch ports as a means of pursuing their ravages; and I have so expressed myself to Baron Van Zuylen in the note of which I have the honor to annex a copy. I will add that I have confidence that such orders will be given.
* * * * * * * * * *
The following is a copy of my note to Mr. Van Zuylen:
[Untitled]
The Hague, September 23, 1861.
“Sir: I have had the honor to receive your communication of the 17th instant, which will, in due time, receive that attention its importance merits.
“Meantime I desire to observe that, as must have been obvious to you, I have hitherto contented myself with advancing general considerations appealing to the friendly dispositions of Holland, rather than in invoking the application of the strict rules of public law to the case under review.
“The Dutch government exercises its undoubted right in overlooking such considerations, and in assuming the championship of a so-called neutrality, which insists upon treating a domestic disturbance as a war between equals.
“For those who so desire, as I am sure Holland does not, it is easy to be persuaded of an incipient nationality in an insurrection, and to see a ship-of-war in every pirate that insults mankind with her depredations or shocks it with her crimes.
“I have great satisfaction in learning from his communication that Baron Van Zuylen recognizes the force of the considerations I have had the honor [Page 367] to present to him touching the evident violation of a just neutrality which is involved in the free use of the ports of the Netherlands by the cruisers of persons engaged in piratical depredations upon the commerce and shipping of the United States, and also in learning that the government of his Majesty has determined that it will not permit its ports to be made the base of operations against that commerce, and that instructions in this sense will be addressed to the governors of the Netherlands colonial possessions.
“It is in the power of the Dutch government, acting upon the rule it has thus laid down, to issue such instructions to its colonial authorities as shall prevent further cause of complaint on the part of the United States, if those instructions shall be executed in good faith.
“The United States government will rely upon the action of Holland in this respect, and will still confidently look for such a course on the part of the Dutch government as will aid it in driving the instigators of rebellion and plunderers of property upon the high seas from the haunts they infest, and in bringing them to condign punishment.
“I have the honor, &c., &c.
“Baron Van Zuylen, &c., &c.”
To-day I have addressed Baron Van Zuylen the following note:
[Untitled]
“The Hague, September 25, 1861.
“Sir: I shall to-day forward your communication of the 17th instant to my government. I do it with reluctance, since its basis is found, as I have already remarked to you, in the assumption of the government of the Netherlands that the domestic disturbance in the United States is a war between equals.
“It cannot be supposed that the United States will consent to debate the question of an abridgment of their sovereignty with Holland or any other nation.
“The United States are one whole undivided nation, especially so far as foreign nations are concerned, and Holland is, by the law of nations and by treaties, not a neutral power between two imaginary parties there, but a friend of the United States. There is in the United States, as there has always been since the establishment of the government, one political power, namely, the United States of America, competent to make war and peace, and conduct alliances and commerce with foreign nations. There is none other, either in fact, or recognized by foreign nations. There is, indeed, an armed sedition seeking to overthrow the government, and the government is employing military and naval force to suppress it. But these facts do not constitute a war presenting two belligerent powers, and modifying the national character, rights, and responsibilities, or the character, rights, and responsibilities of foreign nations.
“That Holland should take a different view of the case will, I am sure, be a subject of very deep regret to the United States.
“The undersigned, &c., &c.
“JAMES S. PIKE.
“Baron Van Zuylen, &c., &c.”
I have the honor to be, with great respect, your most obedient servant,
Hon. Wm. H. Seward,
Secretary of State, Washington, D. C.
Baron Van Zuylen to Mr. Pike.
[Translation.]
Sir: The department of the colonies has just communicated to me the information, transmitted by the governor of Curaçoa, concerning the affair of the ship “Sumter,” and I hasten to bring to your notice the following observations, by way of sequence to the preliminary reply which I had the honor to address to you on the 2d of this month. According to the principles of the law of nations, all nations without exception may admit vessels of war belonging to a belligerent State to their ports, and accord to them all the favors which constitute an asylum. Conditions are imposed on said vessels during their stay in the port or roadstead. For example, they must keep perfect peace with all vessels that may be there; they may not augment their crews, nor the number of their guns, nor be on the lookout in the ports or roadsteads for the purpose of watching after hostile vessels arriving or departing, &c. Besides, every state has the right to interdict foreign vessels of war from entrance to ports which are purely military. Thus it was that Sweden and Denmark, in 1854, at the time of the Crimean war, reserved the right to exclude vessels of war from such or such ports of their dominions.
The neutral power has also the right to act like France, who, by her declaration of neutrality in the war between the United States and the Confederate States, under date of 9th June last, (Moniteur of 11th June,) does not permit any vessel of war, or privateer, of one or the other of the belligerents, to enter and remain with their prizes in French ports longer than twenty-four hours, unless in case of refuge under stress.
In the proclamation of the month of June last, which was communicated to you with my despatch of the 13th, the government of the Netherlands has not excluded vessels of war from her ports.
As to privateers, the greatest number of the maritime nations allows them the privilege of asylum upon the same conditions nearly as to vessels of war.
According to a highly-esteemed author on the law of nations, (Haute-feuille, Droits et Devoirs des Nations Neutres, I, p. 139,) privateers may claim entrance into the ports of nations which have consented to accord asylum to them, not only in cases of pressing dangers, but even in cases in which they may deem it advantageous, or even only agreeable, and for obtaining rest or articles of secondary necessity, such as the refreshments they may have need of.
The terms of the proclamation of the Netherlands government, which admits privateers into Netherlands ports only in cases of distress, harmonize with this doctrine.
Moreover, according to the information received from the governor of Curaçoa, the “Sumter” was actually in distress, and that functionary could not, therefore, refuse to allow the said vessel to enter the port.
Strong in its amicable intentions, the King’s government does not believe itself bound to confine itself to the defence of the conduct of one of its agents in the particular case under discussion. It is not ignorant that it can or may hereafter be a contested question in such cases as to the reality of the distress in which such vessel or other would be, and that thus the subject of the admission generally of the Confederate States vessels would rest untouched. I, therefore, sir, think it opportune to look into the question [Page 369] to determine whether the Sumter should have been admitted at Curaçoa outside of the condition of well-assured distress.
It is evident that the reply to be made is dependent on another question—that is to say, was this vessel a man-of-war or a privateer?
In the latter case, the Netherlands government could not, except in case of a putting in compelled by distress, (relâche forcée,) admit the Sumter into the ports of its territories.
It is not sufficient to dispose of the difficulty by the declaration that the Sumter is, as is stated in your despatches, “a vessel fitted out for, and actually engaged in, piratical expeditions,” or “a privateer steamer.” Such an assertion should be clearly proved, in accordance with the rule of law, “affirmanti incumbit probatio.”
After having poised, with all the attention which comports with the weightiness of the matter, the facts and circumstances which characterize the dissensions which now are laying desolate the United States, and of which no government more desires the prompt termination than does that of the Netherlands, I think I may express the conviction that the Sumter is not a privateer, but a man-of-war—grounding myself on the following considerations:
In the first place, the declaration of the commander of the vessel given in writing to the governor of Curaçoa, who had made known that he would not allow a privateer to come into the port, and had then demanded explanations as to the character of the vessel. This declaration purported “the Sumter is a ship-of-war duly commissioned by the government of the Confederate States.”
The Netherlands governor had to be contented with the word of the commander couched in writing. Mr. Ortolan, (Diplomatic de la Mer, I, p. 217,) in speaking of the evidence of nationality of vessels of war, thus expresses himself:
“The flag and the pennant are visible indications, but we are not bound to give faith to them until they are sustained by a cannot shot.”
The attestation of the commander may be exigible, but other proofs must be presumed; and, whether on the high seas or elsewhere, no foreign power has the right to obtain the exhibition of them.
Therefore the colonial council has unanimously concluded that the word of the commanding officer was sufficient.
In the second place, the vessel armed for war by private persons is called “privateer.” The character of such vessel is settled precisely, and, like her English name, (privateer,) indicates sufficiently under this circumstance that she is a private armed vessel—name which Mr. Wheaton gives them.— (Elements of International Law, II, p. 19.)
Privateering is the maritime warfare which privateers are authorized to make, for their own account, against merchant vessels of the enemy by virtue of letters of marque which are issued to them by the State.
The Sumter is not a private vessel; is not the private property of unconnected individuals—of private ship-owners. She, therefore, cannot be a privateer; she can only be a ship-of-war or ship of the State armed for cruising. Thus the Sumter is designated, in the extract annexed from “Harpers’ Weekly,” under the name of “rebel ship-of-war.”
Thirdly. It cannot be held, as you propose in your despatch of the 9th of this month, that all vessels carrying the confederate flag are, without distinction, to be considered as privateers, because the principles of the law of nations, as well as the examples of history, require that the rights of war be accorded to those States.
The government of the United States holds that it should consider the States of the south as rebels.
[Page 370]It does not pertain to the King’s government to pronounce upon the subject of a question which is entirely within the domain of the internal regulation of the United States; neither has it to inquire whether, in virtue of the Constitution which rules that republic, the States of the south can separate from the central government, and whether they ought then, aye or no, to be reputed as rebels during the first period of the difficulties.
But I deem it my duty to observe to you, sir, that, according to the doctrines of the best publicists, such as Vattel, III, c. 18, § 292, and Mr. de Rayneval, Droit de la Nation et des Gens, I, p. 161, there is a notable difference between rebellion and civil war. “When,” says Vattel, “a party is formed in the state, which no longer obeys its sovereign, and is strong enough to make head against him, or in a republic, when the nation divides into two opposing parties, and on one side and the other take up arms, then it is civil war.” It is, therefore, the latter which now agitates the great American republic.
But, in this case, the rights of war must be accorded to the two parties.
Let me be allowed to cite here only two passages; the one from Vattel, (II, c. 4, § 56,) which reads: “Whenever affairs reach to civil war the ties of political association are broken, or at least suspended, between the sovereign and his people. They may be considered as two distinct powers; and, since one and the other are independent of any foreign authority, no one has the right to judge between them. Each of them may be right. It follows, then, that the two parties may act as having equal right.” The other passage is taken from the work of a former minister, himself belonging to the United States, Mr. Wheaton, who, in his Elements of International Law, c. I, p. 35, (Am. ed., part 1, p. 32,) thus expresses himself: “If the foreign state would observe absolute neutrality in the face of dissensions which disturb another state, it must accord to both belligerent parties all the rights which war accords to public enemies, such as the right of blockade, and the right of intercepting merchandise contraband of war.”
As for historic evidence, it will suffice to call to mind from ancient times the struggle of the United Provinces with Spain, and from modern date the war between the Hispano-American colonies and the mother country since 1810, the war of independence of Greece from Turkey since 1821, &c.
It will doubtless be useless to recollect, on this occasion, that the principle to see only insurgents in the States of the south, having neither sovereignty nor rights of war, nor of peace, was put forward by England, at the breaking out of the war of independence of the Anglo-American colonies, in the vindicatory memoir published by the British court in 1778 in answer to the exposition of the motives for the conduct of France, which had lately signed, on the 6th day of February of that year, a treaty with the United States, in which they were regarded as an independent nation.
But the court of Versailles set out from other principles, which she developed in “Observations on the Vindicatory Memoir of the Court of London,” saying, among other things: “It is sufficient to the justification of his Majesty that the colonies had established their independence not merely by a solemn declaration, but also in fact, and had maintained it against the efforts of the mother country.”
Existing circumstances seem to present the same characteristics; and if it is desired to treat the States of the south as rebels, and accuse them of felony, there might here be cited as applicable to the actual conduct of the United States towards the confederates the following remark of the court of Versailles: “In advancing this proposition, (that the possession of independence, of which the French cabinet said the Americans were in the enjoyment in 1778, was a veritable felony,) the English minister had, without doubt, forgotten the course he had himself taken towards the Americans [Page 371] from the publication of the declaration of independence. It is remembered that the creatures of the court constantly called upon the rebellion vengeance and destruction. However, notwithstanding all their clamors, the English minister abstained, after the declaration of independence, from prosecuting the Americans as rebels; he observed, and still observes towards them, the rules of war usual among independent nations. American prisoners have been exchanged through cartels,” &c.
The rights of war cannot, then, in the opinion of the King’s government, be refused to the Confederate States; but I hasten to add that the recognition of these rights does not import in favor of such States recognition of their sovereignty.
“Foreign nations,” says Mr. Martens, (Précis du Droit des Gens, 1. VIII, c. 3, § 264,) “cannot refuse to consider as lawful enemies those who are empowered by their actual government, whatever that may be. This is not recognition of its legitimacy.”
This last recognition can only spring from express and official declaration, which no one of the cabinets of Europe has thus far made.
Finally, and in the last place, I permit myself here to cite the example of the American privateer Paul Jones.
This vessel, considered as a pirate by England, had captured two of his Britannic Majesty’s ships in October, 1779. She took them into the Texel, and remained there more than two months, notwithstanding the representations Mr. York, ambassador of Great Britain at the Hague, who considered the asylum accorded to such privateer (pirate as he called it in his memoir to the states general of 21st March, 1780) as directly contrary to treaties, and even to the ordinances of the government of the republic.
Mr. York demanded that the English vessels should be released.
The states general refused the restitution of the prizes.
The United States, whose belligerent rights were not recognized by England, enjoyed at that period the same treatment in the ports of the republic of the United Provinces as the Netherlands authorities have now accorded to the Confederate States.
If the cabinet of the Hague cannot, therefore, by force of the preceding, class all the vessels of the Confederate States-armed for war in the category of privateers, much less can it treat them as pirates, (as you call them in your despatch of the 12th of this month,) or consider the Sumter as engaged in a filibustering expedition—“engaged in a piratical expedition against the commerce of the United States”—as it reads in your communication of the 2d of September.
Here again historic antecedents militate in favor of the opinion of the Netherlands government.
Is there need, in fact, to remind you that at the outset of the war of American independence, in 1778, the English refused to recognize American privateers as lawful enemies, under the pretence that the letters of marque which they bore did not emanate from the sovereign, but from revolted subjects?
But Great Britain soon had to desist from this pretension, and to accord international treatment to the colonists in arms against the mother country.
The frankness with which the King’s government has expressed its convictions in relation to the course to be taken towards the States of the south will, without doubt, be estimated at its just value by the government of the United States.
It will perceive therein the well-settled intention to preserve in safety the rights of neutrality; to lay down for itself and to follow a line of conduct equally distant from feebleness as from too great adventurousness, but suitable for maintaining intact the dignity of the state.
The government of the Netherlands desires to observe, on the occasion of [Page 372] existing affairs in America, a perfect and absolute neutrality, and to abstain therefore from the slightest act of partiality.
According to Hubner, (Saisie de Bâtiments Neutres,) “neutrality consists in absolute inaction relative to war, and in exact and perfect impartiality manifested by facts in regard to the belligerents, as far as this impartiality has relation to the war, and to the direct and immediate measures for its prosecution.”
“Neutrality,” says Azuni, (Droits Maritimes,) “is the continuation in a state of peace of a power which, when war is kindled between two or more nations, absolutely abstains from taking any part in the contest.”
But if the proposition be admitted that all the vessels of the Confederate States armed for war should be considered prima facie as privateers, would there not be a flagrant inequality between the treatment and the favors accorded to vessels of war of the United States and the vessels of the Confederate States, which have not for the moment a navy properly so called?
This evidently would be giving proof of partiality incompatible with real duties of neutrality. The only question is to determine with exactitude the distinctive characteristics between a privateer and a ship-of-war, although this may be difficult of execution. Thus is ignored that which Count Reventlon, envoy of the King of Denmark at Madrid, drew attention to in 1782, that there exists among the maritime powers regulations or conventions between sovereigns, which oblige them to equip their vessels in a certain manner, that they may be held veritably armed for war.
You express also, in your despatch of September 2, the hope that the Netherlands government will do justice to your reclamation, grounding yourself on the tenor of treaties existing between the Netherlands and the United States, on the principles of the law of nations, and, finally, upon the assurances you have received from the King’s government.
Amidst all the European powers there are few who have better defended the rights of neutrals, and have suffered more in this noble cause than Denmark; and one of her greatest statesmen of the close of the last century, Count Bernstorff, has been able to declare with justice, in his memoir of July 28, 1793, a document that will long continue to be celebrated: “A neutral power fulfils all its duties by never departing from the most strict impartiality, nor from the avowed meaning of its treaties.”
I have endeavored, sir, to show, in what precedes, that the government of the Netherlands has fulfilled conscientiously its first duty, and will adhere faithfully thereto.
The cabinet of the Hague does not observe and will not observe less religiously the tenor of treaties.
The treaty of the 19th of January, 1839, and the additional convention of the 26th of August, 1852, only relate to commerce and navigation; the only treaties that can be invoked in the present case are those of the 8th of October, 1782.
I do not think it my duty to enter here upon a discussion of principles on the question of deciding whether these treaties can still be considered as actually in force, and I will not take advantage of the circumstance that the cabinet of Washington has implicitly recognized, by the very reclamation which is the object of your despatches, that the treaties of 1782 cannot any longer be invoked as the basis of international relations between the Netherlands and the United States.
I will only take the liberty of observing to you, sir, that the execution of the stipulations included in those diplomatic acts would be far, in the present circumstances, from being favorable to the government of the republic.
In fact, we should, in this case, admit to our ports privateers with their [Page 373] prizes, which could even be sold there by virtue of article 5 of the before-cited convention of 1782, on rescues.
It would, perhaps, be objected that the treaty of 1782, having been concluded with the United States of America, could not be invoked by a part of the Union which had seceded from the central government, and I do not dissent from the opinion that this thorny question of public law would give rise, should the case occur, to very serious difficulties.
But we cannot lose sight of the fact that the treaty spoken of was concluded, even before the recognition of the United States by England in 1783, with the oldest members of the republic, among others, to wit, with Virginia, North Carolina, South Carolina, and Georgia, and that those States actually figure among the secessionists.
In 1782 the republic of North America was only a simple confederation of states, remaining sovereign, united only for common defence, (Staatenbund) and it is only since the establishment of the Constitution, of the 17th of September, 1787, that the pact which binds together the United States received the character which is attributed to it by Mr. Wheaton, also, (Elements of International Law,) of a perfect union between all the members as one people under one government, federal and supreme, (Bundestaat,) “a commonwealth,” according to Mr. Motley in his pamphlet “Causes of the Civil War in America,” p. 71.
In view of this fundamental difference between the present character of the government of the United States and that of the party contracting the treaty of 1782, it would be difficult to refuse in equity the privilege of the secessionist States to avail themselves of it.
It will, therefore, not escape your penetration that it is preferable, as well for the Netherlands as for the cabinet of Washington, to leave the treaty above mentioned at rest, and that, in excluding privateers from its ports the government of the Netherlands has acted only in the interests of the government of the United States, to which it is bound by feelings of a friendship which dates even from the time of the existence of the republic of the united provinces, and which the King’s government will make every effort to maintain and consolidate more and more.
According to the law of nations, the cases in which the neutrality of a power is more advantageous to one party than to the other do not affect or impair it; it suffices that the neutrality be perfect and strictly observed. The government of the Netherlands has not departed from it, therefore, in denying admission to the ports of his Majesty’s territories to privateers, although at first glance this determination is unfavorable to the southern States.
The difficulties which have actually arisen, and which may be renewed hereafter, the desire to avoid as much as possible everything that could compromise the good understanding between the governments of the United States and the Netherlands, impose on the last the obligation to examine with scrupulous attention if the maintenance of the general principles which I have had the honor to develop might not in some particular cases impair the attitude of neutrality which the cabinet of the Hague desires to observe. If, for example, we had room to believe that the Sumter, or any other vessel of one of the two belligerent parties, sought to make of Curaçoa, or any other port in his Majesty’s dominions, the base of operations against the commerce of the adverse party, the government of the Netherlands would be the first to perceive that such acts would be a real infraction, not merely of the neutrality we wish to observe, but also of the right of sovereignty over the territorial seas of the state; the duty of a neutral state being to take care that vessels of the belligerent parties commit no acts of hostility [Page 374] within the limits of its territory, and do not keep watch in the ports of its dominion to course from them after vessels of the adverse party.
Instructions on this point will be addressed to the governors of the Netherlands colonial possessions.
I flatter myself that the preceding explanations will suffice to convince the federal government of the unchangeable desire of that of the Netherlands to maintain a strict neutrality, and will cause the disappearance of the slightest trace of misunderstanding between the cabinets of the Hague and of Washington.
Accept, sir, the renewed assurance of my high consideration.
Mr. Pike, Minister Resident of the United States of America.