Mr. Seward to Mr. Adams.
Washington, August 17, 1861.
Sir: Your despatch of August 2 (No. 22) has been received. It is accompanied by a correspondence which has just taken place between yourself and Lord John Russell, with a view, on your part, to remove possible obstructions against the entrance upon negotiations, with which you have so long been charged, for an accession on our part to the declaration of the congress of Paris on the subject of the rights of neutrals in maritime war. It was also understood by you that a further result of the correspondence would be to facilitate, indirectly, the opening of similar negotiations for a like object, by Mr. Dayton, with the government of France.
Your letter to Lord John Russell is judicious, and is approved. Lord John Russell’s answer is satisfactory, with the exception of a single passage, upon which it is my duty to instruct you to ask the British secretary for foreign affairs for an explanation.
That passage is as follows:
“I need scarcely add that on the part of Great Britain the engagement will be prospective, and will not invalidate anything already done.”
A brief statement of the objects of the proposed negotiation will bring the necessity for an explanation of this passage into a stong light. We have heretofore proposed to other maritime states certain meliorations of the laws of maritime war affecting the rights of neutrals. These meliorations are: 1st. That the neutral flag shall protect enemy’s goods not contraband of war. 2d. That the goods of neutrals, not contraband, though found [Page 129] under an enemy’s flag, shall not be confiscated. 3d. That blockades, to be respected, must be effective.
The congress at Paris adopted these three principles, adding a fourth, namely, that privateering shall be abolished. The powers which constituted that congress invited the adhesion of the United States to that declaration. The United States answered that they would accede on condition; that the other powers would accept a fifth proposition, namely, that the goods of private persons, non-combatants, should be exempt from confiscation in maritime war.
When this answer was given by the United States, the British government declined to accept the proposed amendment, or fifth proposition, thus offered by the United States, and the negotiation was then suspended. We have now proposed to resume the negotiation, offering our adhesion to the declaration of Paris, as before, with the amendment which would exempt private property from confiscation in maritime war.
The British government now, as before, declares this amendment or fifth proposition inadmissible. It results that, if the United States can at all become a party to the declaration of the congress of Paris by the necessary consent of the parties already committed to it, this can be done only by their accepting that declaration without any amendment whatever, in other words, “pure and simple.” Under these circumstances you have proposed in your letter to Lord John Russell to negotiate our adhesion to the declaration in that form. It is at this stage of the affair that Lord John Russell interposes, by way of caution, the remark, that “on the part of Great Britain the engagement will be prospective, and will not invalidate anything already done.”
I need dwell on this remark only one moment to show that, although expressed in a very simple form and in a quite casual manner, it contains what amounts to a preliminary condition, which must be conceded by the United States to Great Britain, and either be inserted in the convention, and so modify our adhesion to the declaration of Paris, or else must be in some confidential manner implied and reserved, with the same effect.
Upon principle this government could not consent to enter into formal negotiations, the result of which, as expressed in a convention, should be modified or restricted by a tacit or implied reservation. Even if such a proceeding was compatible with our convictions of propriety or of expediency, there would yet remain an insuperable obstacle in the way of such a measure.
The President can only initiate a treaty. The treaty negotiated can come into life only through an express and deliberate act of ratification by the Senate of the United States, which ratification sanctions, in any case, only what is set down in the treaty itself. I am not, by any means, to be understood in these remarks as implying a belief that Lord John Russell desires, expects, or contemplates the practice of any reservation on the part of the United States or of Great Britain. The fact of his having given you the caution upon which I am remarking, would be sufficient, if evidence were necessary, to exclude any apprehension of that sort. It results from, these remarks that the convention into which we are to enter must contain a provision to the effect that “the engagements” to be made therein are “on the part of Great Britain prospective, and will not invalidate anything already done.”
I must, therefore, now discuss the propriety of inserting such a stipulation in the convention which you have been authorized to consummate. The proposed stipulation is divisible into two parts, namely: First. That the engagements of Great Britain are “prospective” [only.]
I do not see any great objection to such an amendment. But why should [Page 130] it be important. A contract is always prospective, and prospective only, if it contains no express stipulation that it shall be retrospective in its operation. So much, therefore, of the stipulation asked is unnecessary, while, if conceded, it might possibly give occasion to misapprehension as to its effect. You will, therefore, decline to make such a condition without first receiving a satisfactory explanation of its meaning and its importance.
The second part of the proposed condition is, that the “engagement will not invalidate anything already done.” I am not sure that I should think this proposed condition exceptionable, if its effect were clearly understood. It is necessary, however, to go outside of his lordship’s letter to find out what is meant by the words “anything already done.” If “anything” pertinent to the subject “has been already done” which ought not to be invalidated, it is clear that it must have been done either by the joint action of the United States and Great Britain, or by the United States only, or by Great Britain acting alone. There has been no joint action of the United States and Great Britain upon the subject. The United States have done nothing affecting it; certainly nothing which they apprehend would be invalidated by the simple form of convention which they propose. I am left to conclude, therefore that the “thing” which “has been done already,” and which Great Britain desires shall not be invalidated by the convention, must be something which she herself has done. At the same time we are left to conjecture what that thing is which is thus to be carefully saved. It would be hazardous on our part to assume to know, while I have no doubt that the British government, with its accustomed frankness, and in view of the desirableness of a perfect understanding of the matter, will at once specify what the thing which has been done by her, and which is not to be invalidated, really is. You will, therefore, respectfully ask the right honorable secretary for foreign affairs for an explanation of the part of his letter which I have thus drawn under review, as a preliminary to any further proceedings in the proposed negotiation.
You will perform this in such a manner as to show that the explanation is asked in no querulous or hypercritical spirit. Secondly, you will perform it with reasonable promptness, so that the attainment of the important object of the negotiation may not be unnecessarily delayed; and, thirdly, you will assure the British government that while the United States at present see no reason to think that the stipulation proposed is necessary or expedient, yet, in view of the great interests of commerce and of civilization which are involved, they will refuse nothing which shall be really just or even nonessential and not injurious to themselves, while of course I suppose they are not expected in any way to compromise their own national integrity, safety, or honor.
I am, sir, respectfully, your obedient servant,
Charles Francis Adams, Esq., &c., &c., &c.