Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the First Session Thirty-eighth Congress, Part I
Mr. Adams to Mr. Seward.
Sir: Lord Russell has thought it expedient to renew the correspondence about the intercepted despatches in a note of the 2d of April, a copy of which I send herewith.
[Page 238]* * * * * * * * * *
A copy of my reply, dated the 6th instant, is appended.
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I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State.
[Enclosures.]
1. Lord Russell to Mr. Adams, April 2, 1863.
2. Mr. Adams to Lord Russell, in reply thereto, April 6, 1863.
Earl Russell to Mr. Adams.
Sir: Her Majesty’s government have not failed to consider, with the attention it deserved, the letter which you addressed to me on the 14th ultimo, in reply to my letter of the 9th ultimo, on the subject of the intercepted correspondence which you had alleged went to show a deliberate attempt to establish within the limits of the United Kingdom a system of action in direct hostility to the government of the United States.
I have now the honor to observe to you that, while you withhold your acquiescence in the opinion expressed by me of that correspondence, and state that you shall transmit a copy of my note, with profound regret, to your government, you nevertheless do not controvert the principal positions assumed in that note.
You do not deny, first, that it is lawful for her Majesty’s subjects to lend money on securities, or otherwise, to either belligerent, or, secondly, that it is also lawful to sell, to either belligerent, munitions of war.
Upon this subject I beg to call to your notice that no longer ago than the 20th of last November, in answer to the remonstrance of Mexico against an alleged organized system in the United States of aiding France in the war in which she is engaged with that republic, but in which the United States are neutral, Mr. Seward replied by this, among other citations:
(Mr. Webster to Mr. Thompson.)
“As to advances, loans, or donations of money to the government of Texas, or its citizens, the Mexican government hardly needs to be informed that there is nothing unlawful in this, so long as Texas is at peace with the United States, and that there are things which no government undertakes to restrain.”
You are, without doubt, perfectly aware that many decisions of tribunals in the United States fully establish that a like exposition of the law as to munitions of war and the sale of armed vessels has been always maintained in the United States when they were neutrals.
You do not state that the information which you have communicated to me, as to alleged contracts for constructing war steamers, or the proposed establishment of naval officers to superintend them, would be sufficient to found a criminal prosecution in the United States; you are probably aware that it would not suffice for that purpose and there is, therefore, no reason why you should complain of my statement that the information which you had furnished would not suffice for the like purpose in England.
You are not ignorant that agents have been employed, and munitions of war have been purchased, and that it is now again asserted that her Majesty’s subjects [Page 239] are being recruited for the purpose of aiding the United States against the so-called Confederate States, and so far it might be urged in vague and popular language by the Confederate States as well as by the United States as the other belligerent (as it was substantially urged by Mexico against the United States last year) “that there is evidence of a deliberate attempt to establish within the limits of this kingdom a system of action in direct hostility to their government ;” but the question really is, has there been any act done in England both contrary to the obligations of neutrality as recognized by Great Britain and the United States, and capable of being made the subject of a criminal prosecution? I can only repeat that in the opinion of her Majesty’s government no such act is specified in the papers which you have submitted to me.
I, however, willingly assure you that in view of the statements contained in the intercepted correspondence her Majesty’s government have renewed the instructions already given to the custom-house authorities of the several British ports where ships-of-war may be constructed, and by the secretary of state for the home department to various authorities with whom he is in communication, to endeavor to discover and obtain legal evidence of any violation of the foreign enlistment act, with a view to the strict enforcement of that statute whenever it can really be shown to be infringed; and her Majesty’s government would be obliged to you to communicate to them, or to the local authorities at the several ports, any evidence of illegal acts which may from time to time become known to you.
I have referred, generally, to the judicial decisions of the United States on this subject; but it would be as well that I should mention, specially, two of these decisions, selected out of many, both upon the general question and upon the particular case of the sale of ships-of-war by the subjects of a neutral to a belligerent State.
The first decision is that of the eminent Judge Story, given, it may be well to observe, in a case in which the recognition of the Spanish American republics was directly concerned. After admitting that the capture had been made by an United States ship, built in the United States, originally owned in the United States, Judge Story proceeds to say: “The question as to the original illegal armament and outfit of the Independence may be dismissed in a few words; it is apparent that, though equipped as a vessel-of-war, she was sent out to Buenos Ayres on a commercial adventure, contraband indeed, but in no shape violating our laws or our national neutrality. If captured by a Spanish ship-of-war, during the voyage, she would have been justly condemnable as good prize for being engaged in a traffic prohibited by the law of nations. But there is nothing in our laws, or in the law of nations, that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation.”
This is a case illustrating the law and practice of the United States while neutral in the war between Spain and her colonies.
The next case (historically the first) illustrates the law and practice of the United States while neutral in the war between Great Britain and France. It is so short that I beg leave to cite it verbatim and at length, as given in Curtis’s reports of decisions in the Supreme Court of the United States, volume 1, pages 234, 235, “Moodie vs. the ship Alfred.”
“It is not a violation of the neutrality laws of the United States to sell to a foreigner a vessel built in this country, though suited to be a privateer, and having some equipments calculated for war, but frequently used by merchant ships. The allegation in this case, as supported by the evidence, was that the privateer which took the British prize in question had been built in New York, with the express view of being employed as a privateer, in case the then existing controversy between Great Britain and the United States should terminate [Page 240] in war; that some of her equipments were calculated for war, though they were also frequently used for merchant ships; that the privateer was sent to Charleston, where she was sold to a French citizen; that she was carried by him to a French island, where she was completely armed and equipped, and furnished with a commission; that she afterwards sailed on a cruise, during which the prize was taken and sent into Charleston.” Reed, for the plaintiffs in error, contended that this was an original construction or outfit of a vessel for the purpose of war; and that if it was tolerated as legal it would be easy, by collusion, to subvert the neutrality of the United States and involve the country in a war.
“The court, however, without hearing the opposite counsel, directed the decree to be affirmed.”
It seems clear, on the principle enunciated in these authorities, that, except on the ground of any proved violation of the foreign enlistment act, her Majesty’s government cannot interfere with commercial dealings between British subjects and the so-styled Confederate States, whether the subject of these dealings be money or contraband goods, or even ships adapted for warlike purposes.
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
Charles Francis Adams, Esq., &c., &c., &c.
Mr. Adams to Earl Russell.
My Lord: I have had the honor to receive your note of the 2d instant, in reply to mine of the 14th of last month, on the subject of the intercepted correspondence, submitted to your lordship’s consideration some time since, which, as I alleged, “went to show a deliberate attempt to establish within the limits of the United Kingdom a system of action in direct hostility to the government of the United States.”
Your lordship is pleased to observe that I do not controvert the principal positions assumed in your note, to wit: 1st. “That it is lawful for her Majesty’s subjects to lend money on security or otherwise to either belligerent. 2d. That it is lawful to sell to either belligerent munitions of war.” And thereupon your lordship is pleased to call my attention to several citations from eminent authorities in the United States, judicial and otherwise, to establish these positions, just the same as if I had controverted them.
Nevertheless, I have given to all the passages presented by your lordship the game profound attention which I habitually pay to everything from the same source. I cannot, however, perceive that they have any effect in. disturbing the positions which have been heretofore assumed by myself. The sale and transfer, by a neutral, of arms, of munitions of war, and even of vessels-of-war, to a belligerent country, not subject to blockade at the time, as a purely commercial transaction, is decided by these authorities not to be unlawful. They go not a step further, and precisely to that extent I have myself taken no exception to the doctrine.
But the case is changed when a belligerent is shown to be taking measures to establish a system of operations in a neutral country, with the intent to carry on a war from its ports, much in the same way that it would do, if it could, from its own territory, when it appoints agents, residing in that country, for the purpose [Page 241] of borrowing money to be applied to the fitting out of hostile armaments, in those very ports, and when it appoints and sends out agents to superintend in those ports the constructing, equipping, and arming ships-of-war, as well as the enlisting of the subjects of the neutral country, to issue forth for the purpose of carrying on hostilities on the ocean.
These are the points to which I desire to call your lordship’s attention in the intercepted despatches, I affirmed that they went to show a system of operations to the extent thus designated. I did not affirm that they absolutely proved the fact. But I did mean to be understood as affirming them to furnish strong corroborative evidence to sustain all the other proofs which I have been in the practice of laying, before your lordship for a long time past, of the abuses made of her Majesty’s neutral territory, for the conduct of the war directly from her ports, without the intervention of time even for the vessels to gain the semblance of a national character.
Had your lordship been pleased to continue your reading of the decision by the United States court in the case of the Indepencia and Attrarida some pages further than the passage to which you have done me the honor to draw my attention, you would have been able fully to comprehend the spirit in which the eminent judge who pronounced the decree construed the obligations of the United States as a neutral power. He condemned the outfit of these vessels precisely for the reason above assigned.
Neither is that case the only or the most significant expression of the duties incumbent on the government of the United States towards nations with which it is in amity in a similar emergency. Since your lordship is pleased to accord so much weight to the decisions of the courts, I would respectfully solicit your attention to the case of the United States against John D. Quincy, (6 Peters’s Reports, pp. 445—465,) as giving a full construction of the powers given to it for the protection of foreign countries by the enlistment law. So far as I may be permitted to express an opinion, it clearly embraces within its scope the objects and purposes declared in the intercepted despatches.
But I must pray your lordship’s pardon for thus encroaching On your valuable time with any further discussion of these points. In doing so I am conscious of having varied from the intentions heretofore expressed of abstaining from it, unless prompted by the authority of instructions. I shall do myself the honor to transmit to my government a copy of your note, and I entertain no doubt that it will receive with satisfaction the assurance your lordship is pleased to give of a determination of her Majesty’s government, “in view of the statements contained in the intercepted correspondence,” to endeavor to discover and obtain legal evidence of any violation of the enlistment act, with a view to the strict enforcement of it, whenever it can really be shown to be infringed. I trust I need not add the assurance that all the efforts of myself, as well as of the various officers of my government within this kingdom, will be at the service of the local authorities at the several ports in prosecuting these investigations.
I pray your lordship, &c.,
Earl Russell, &c., &c., &c.