Mr. Adams to Mr. Seward.

No. 81.]

Sir: I have the honor to transmit herewith the copy of a note addressed by Earl Russell to me on the 26th instant, in reply to mine on the subject of the revocation of Mr. Bunch’s exequatur. I likewise subjoin a copy of my note addressed to him in answer. I have confined myself almost entirely to those portions in which his lordship calls my positions into question, and have left his declarations of future intentions to be dealt by the government if it be deemed worth while to continue the discussion. Other matters are so constantly occurring of a more imperative nature as to render this of very secondary consequence. It is plain, from the turn which has been taken in the newspapers of this morning, that the law officers of the crown have modified their original position so far as to deny the right of the United States government to take out persons when they do not take papers and [Page 7] things. In other words, Great Britain would have been less offended if the United States had insulted her a great deal more. There is little reason to doubt that the same steamer which bears this will carry out a demand for an apology and the restoration of the men. I confess that the turn things have taken has given me great anxiety for the fate of my unhappy country. But I shall await with resignation the instructions which will probably close my mission.

I have the honor to be, sir, your obedient servant,

CHARLES FRANCIS ADAMS.

Hon. William H. Seward, Secretary of State, Washington, D. C.

Earl Russell to Mr. Adams,.

The undersigned, her Majesty’s principal secretary of state for foreign affairs, has received, with much concern, the note which Mr. Adams, envoy extraordinary and minister plenipotentiary of the United States at this court, addressed to him on the 21st instant, in which he announces the result of what Mr. Adams states to have been the calm and impartial deliberation by the United States government upon the question submitted for its decision the necessity which that government feels itself under to revoke the exequatur of Mr. Robert Bunch, her Majesty’s consul at Charleston.

In discussing this matter, the undersigned will put aside all allegations of the unknown letter-writer concerning Mr. Bunch’s supposed conversation referred to in a former communication of Mr. Adams; for it may now be affirmed that those allegations, unsupported as they are by any proof, were entirely unfounded.

Neither will the undersigned take any notice of the charge made against Mr. Bunch that his conduct has been that of a partisan of faction and disunion, because that charge is equally unsupported by any proof whatever, and is equally unfounded.

The withdrawal of Mr. Bunch’s exequatur does not, however, appear to rest upon these unfounded allegations, nor on these groundless charges. It is said to rest upon a law of the United States, of which it is said her Majesty’s government might pardonably have been ignorant, but which Mr. Bunch was bound to have brought to their notice.

This law, as Mr. Adams affirms, forbids, “under a heavy penalty, any person not specially appointed, or duly authorized by the President, whether citizen or denizen, privileged or unprivileged, from counselling, advising, aiding, or assisting in any political correspondence with the government of any foreign state whatever, with an intent to influence the measures of any foreign government, or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of their government.”

Taking Mr. Adams’s description of this statute as full and accurate, the undersigned has to remark that the statute seems to have been enacted for the purpose of preventing citizens or denizens of the United States from aiding or counselling foreign governments with regard to their disputes with the United States.

If this be so, Mr. Bunch, having no mission or instruction to aid or counsel a foreign state at enmity with the United States, and not having done so, would have no reason to suppose that a statute made “alio intuitu” could [Page 8] be so construed as to apply to his execution of the instructions he had received from her Majesty’s government; and therefore there could be no reason why he should have brought to the notice of her Majesty’s government an United States statute which had no bearing whatever upon anything which he was instructed to do.

The undersigned has further to remark that the United States government, by their quotation of the statute in question as the foundation on which they rest their complaint against Mr. Bunch, seem distinctly to admit that the government of the Confederate States at Richmond is, as regards the United States, “the government of a foreign state”—an admission which goes further than any acknowledgment with regard to those States which her Majesty’s government have hitherto made. But if the Confederate States are, as Mr. Adams’s note implies as regards the United States, a foreign state, then the President of the United States has no competence, one way or the other, with respect to the functions of the consuls of other governments in that foreign state, and the exequaturs of such consuls can be granted or withdrawn only by the government of such foreign state, for the Confederate States cannot be at one and the same time “a foreign state” and part of the territory of the United States.

But there is a further question raised by the United States government which is of deep and urgent importance. Mr. Adams is instructed to say that any communication to be addressed to the government of the so-called Confederate States respecting the goods of a belligerent on board of neutral ships, or the goods of a neutral on board of belligerent ships, should have been made by diplomatic and not by consular agents; and that the “only authority in the United States to which any diplomatic communication whatever can be made is the government of the United States itself.”

Mr. Adams must be aware that this assertion raises grave questions both of fact and of law. In the first place, when her Majesty’s government are gravely told that an application to the Confederate government for redress ought to be made through the President of the United States, they might well ask whether such a position is seriously laid down, and whether the President of the United States can affirm that in the present condition of things he has the power to give effect to any such application which might be made to him. For instance, a British subject at New Orleans or Galveston might be carried away by force to serve with the confederate troops; could the President of the United States set him free? might he not be killed in battle by a ball or a bullet from the United States army as the only release he could obtain from President Lincoln from his compulsory service? Again: the private debts due to a British subject in Louisiana or in Arkansas may be confiscated and paid into the public treasury of the State by a law or decree of the so-styled Confederate Congress; could the President or Secretary of State of the United States obtain the recovery of these sums; or could he secure immunity from confiscation for the landed property of British subjects in the eleven Confederate States?

If the President of the United States cannot do this, the course of proceeding suggested by Mr. Adams would be altogether illusory.

But next as to a question of international law. Her Majesty’s government hold it to be an undoubted principle of international law, that when the persons or the property of the subjects or citizens of a state are injured by a de facto government, the state so aggrieved has a right to claim from the de facto government redress and reparation; and also that in cases of apprehended losses or injury to their subjects, states may lawfully enter into communication with de facto governments to provide for the temporary security of the persons and property of their subjects.

Acting upon this last-mentioned principle, her Majesty’s government [Page 9] entered into concert with the government of the Emperor of the French in regard to certain articles of the declaration of Paris.

The result was an instruction which was to be carried into effect by the British and French consuls at Charleston, and they both executed their commission unostentatiously but effectively.

It may be necessary in future, for the protection of the interests of her Majesty’s subjects in the vast extent of country which resists the authority of the United States, to have further communications both with the central authority at Richmond and with the governors of the separate States, and in such cases such communications will continue to be made, but such communications will not imply any acknowledgment of the confederates as an independent state.

The undersigned has read with sincere pleasure the testimony voluntarily borne by the President of the United States to the care with which Lord Lyons has respected the sovereignty and the rights of the United States, and the undersigned feels it right to say that in very difficult circumstances the conduct of Mr. Adams, while upholding the authority and interests of his own government, has been such as to acquire the esteem and respect of the government of her Majesty and of the British nation.

The undersigned requests Mr. Adams to accept the assurance of his highest consideration.

RUSSELL.

Charles Francis Adams, &c., &c., &c.,

Mr. Adams to Earl Russell.

The undersigned, envoy extraordinary and minister plenipotentiary of the United States, has the honor to acknowledge the reception of a note from the right honorable Earl Russell, her Majesty’s principal secretary of state for foreign affairs, dated the 26th instant, in answer to a previous one of his own, dated the 21st instant, announcing the decision of the government of the United States to withdraw the exequatur of Mr. Bunch, her Majesty’s consul at Charleston, in South Carolina. The undersigned will do himself the honor to transmit his lordship’s note for the information of his government by the first opportunity.

The undersigned, disclaiming any desire to continue discussion upon a painful topic one moment longer than a necessity for it shall continue to exist, yet feels as if he could not, in justice to himself as well as to his own government, omit this opportunity to explain some passages of his former note, which appear to him to have been in a degree misunderstood by Earl Russell. He confesses himself at a loss to comprehend in what manner he should have been so unfortunate in his use of language as to give ground for his lordship’s statement” that the United States government, by their quotation of the statute to which reference has been made as the foundation on which they rest their complaint against Mr. Bunch, seem deliberately to admit that the government of the Confederate States at Richmond is, as regards the United States, the government of a foreign state—an admission which goes further than any acknowledgment with regard to those States which her Majesty’s government have hitherto made.” If the undersigned have given just cause for any construction of the action of his government approximating to that indicated in the preceding extract from his lordship’s note, then has he indeed committed, in his estimation, a most grave mistake. But on a careful re-examination of his note of the 21st, the undersigned must [Page 10] be permitted to say that he has found some difficulty in perceiving anything that appears to him to be ambiguity in his meaning. He discovers only one government of a foreign state alluded to, and that is obviously her Majesty’s government. The other party, in his own mind, were the rebellious insurgents in arms against the authority of the United States, which he was very far from characterizing in the manner indicated by his lordship. The purpose of the law seems to the undersigned to have been severely to punish all persons, whether native or foreign, citizen or privileged, who knowingly made themselves instruments of foreign states to foment factious disturbances within the United States. It appears to have been enacted during the troubled period of the French revolution, when interference with the domestic affairs of neighboring nations was an avowed principle of action, and was therefore boldly acted upon even by the recognized agents of the French authorities. The undersigned, therefore, in applying the principle of the law in a mitigated form to Mr. Bunch and his alleged intermixture with the disputes and controversies going on within the United States, surely cannot have made so great a mistake as to have assumed that he was dealing with “the government of a foreign state.” He has considered Mr. Bunch as an officer of her Majesty’s government, formerly recognized by the government of the United States for certain purposes of commerce, who has been engaged in political correspondence as well with his own government as with rebellious insurgents in the United States for purposes foreign from those which were assigned at the time he received his authority, and for that reason that he has knowingly violated the law. At the same time the undersigned took great care in expressing his firm belief that her Majesty’s government, in directing their agent in the manner indicated, could not have been aware of the nature and character of that law—a belief which he is happy to find, by his lordship’s present mode of considering it, to have been well founded.

But much as the undersigned found of difficulty in regard to the misconception he has been so unfortunate as to originate in his lordship’s mind of this view of a law of his own country, he has been still more embarrassed to learn the fact that in his statement of what appeared to his mind true in its application to all governments, and undeniable in respect to the government of the United States, he has not enjoyed the satisfaction of his lordship’s concurrence of opinion. This statement was that “the only authority in the United States to which any diplomatic communication can be made is the government of the United States.” If the undersigned had been led in any way to vary this proposition he would have deemed himself to have gone much further in the road to recognition of “the government of a foreign state” within the United States than he did in that mistakenly attributed to him by his lordship. Surely it could not have been his lordship’s intention to present the proposition that the same diplomatic agent of a foreign power can be accredited to the government of a country and to the self-constituted authorities of a portion of the people who are * * * waging war to overthrow it. Applying this argument to the question of Mr. Bunch, his case resolves itself into this: That holding his authority to act in an official relation as an officer of a foreign government from the recognition of the authorities of the United States, they are expected to acknowledge his right whilst acting in this capacity, at the same time to treat with any of their own citizens who defy their authority whenever it may be deemed advisable by that government. Surely such a proposition, if accepted, would seem to undermine the foundations of sound international relationship all over the world. Surely no government, entertaining a proper degree of self-respect, would consent for a moment to receive any representative of a foreign nation if his first act might be to attempt to undermine the authority [Page 11] to which he had been accredited by recognizing for any purpose the validity of a domestic antagonism within its limits.

The undersigned is not insensible to the force of his lordship’s argument in regard to the necessity imposed upon it of protecting the interests of British subjects in those regions where the authority of the United States is suspended, as well as the difficulty of calling upon the government of the United States to make good the damage that might ensue from the acts of persons now in armed resistance. Doubtless it must have been under considerations like these that her Majesty’s government was induced to release that of the United States from responsibility for such reclamations by adopting the policy of granting to the insurgents the rights of a belligerent. Without entering into the wide field of discussion presented by the arguments of his lordship, the undersigned contents himself with the remark that whatever may be the course of action her Majesty’s government deems proper to lay down for itself in regulating its relations with the insurgent forces in the United States, it will scarcely be disposed to require of the government of the United States that it should recognize the agents through whom they may be carried on. The objection to Mr. Bunch’s action is that, whilst he has been enjoying, as consul of her Majesty in the United States, the advantages of a solemn recognition of the United States, he has been engaged in official proceedings in violation of the law, as well as outside of any authority with which they ever consented that he should be vested.

That the latter part of the statement is that the fact would scarcely seem to admit of the possibility of a doubt. But inasmuch as the undersigned is not altogether sure that he has placed the matter so fully before his lordship as his duty to his country seems to him to require, he trusts he may be permitted to enlarge upon it a little further. The position of Mr. Bunch, in regard to the United States, had been exclusively that of a consul of a foreign nation at a commercial port. That such a position does not of itself involve the right of diplomatic negotiation with the recognizing government, much less with any subordinate authority, is too well established by law to need further elucidation. The only question that remains for consideration is * * * then whether the authority actually vested in Mr. Bunch by her Majesty’s government to enter into communication with the insurgents in the United States touching certain articles of the declaration of Paris to which their acquiescence was to be obtained was of a diplomatic or purely of a consular nature. The proper answer to this is to be found in an appeal to the mode in which, from its very commencement, the declaration of Paris has been permitted to take its shape. In its origin it was the result of a conference of the accredited envoys of the great powers, and in all the later steps taken to secure the acquiescence of different nations, including the United States, the agency used has been that of the customary diplomatic representatives. It therefore admits of no doubt, in the mind of the undersigned, that the declaration of Paris is a pure diplomatic act, and that all negotiations since carried on to extend its authority, including that which the undersigned himself had the honor to carry on with his lordship for a time, bear the same exclusive character. It is, then, plain to the mind of the undersigned that the government of the United States in objecting to the assumption by an officer of a foreign government recognized by it only as vested with the authority of a consul of diplomatic authority to treat within the limits of the United States, and without its knowledge or consent, with persons acting as an armed resistance to it, has justification fully sufficient to sustain its decision to withdraw the formal act of recognition of such officer. To suppose it capable of a different [Page 12] course would seem to be to condemn it as unworthy of the character for honor and independence to which it has ever endeavored to aspire.

In conclusion, the undersigned desires to express his personal obligations to Earl Russell for the friendly notice he has been pleased to take of his labors in the arduous and difficult mission with which he has been charged. It gives him great pleasure to be able on his part to testify to the uniform courtesy and good will with which he has been treated in all his relations with her Majesty’s government.

The undersigned prays Earl Russell to receive the assurances of his most distinguished consideration.

CHARLES FRANCIS ADAMS.

Right Hon. Earl Russell, &c., &c.