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: I transmit herewith a copy of Lord Russell’s note to me of the 19th instant, in reply to my representation, dated the 20th of November, in the case of the “290.” The material portion, consisting of the answer to the two demands which I was instructed to make, is of course withdrawn at once from my province, and awaits the decision of the President. But upon the collateral topics introduced by his lordship into the discussion, I am preparing a note explaining and re-enforcing my view, which cannot be completed in season to send by the present opportunity. The pressure on the force of the legation, as well as on my own time during this week, renders it impossible to get the papers ready.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
Earl Russell to Mr. Adams.
Sir: I have the honor to acknowledge the receipt of your letter of the 20th ultimo, in which, under instructions from your government, you submit, for the consideration of her Majesty’s government, papers confirming the truth of the allegations which you made to me some time ago as to the intention with which the vessel formerly known as the “290,” but now called the Alabama, was fitted out at Liverpool, and you observe that those allegations are now fully proved by the hostile proceedings of that vessel since she left the United Kingdom.
You pass in review the history of the Alabama, both before and Since she sailed from Liverpool, and you state that the facts being admitted, they present to the consideration of all civilized countries a series of novel questions of the gravest character. You say that it is obviously impossible to reconcile the toleration by any one nation of similar undertakings in its own ports to the injury of another nation with which it is at peace with any known theory of moral or political obligation; and you add, with some further observations in the same sense, that the reciprocation of such practices could only in the end lead to the utter subversion of all security to private property upon the ocean.
You, however, say that it is by no means your desire to imply an intention on the part of her Majesty’s government to countenance any such idea. You admit that you are aware of the measures adopted at a very early date with reference to the Alabama, and of the orders subsequently issued to detain that vessel as soon as legal opinions were obtained—orders which it was not possible for the authorities to execute, because, at the very moment when they were issued, the Alabama made her escape from Liverpool.
You finally state that you have been instructed to solicit redress for the national and private injuries sustained by the proceedings of this vessel as well as a more effective prevention of any repetition of them in British ports hereafter.
Before I proceed to examine the justice of these demands, it will be convenient that I should advert to the circumstances to which you call my attention as having occurred soon after the breaking out of the French revolutionary war. You observe that on that occasion remonstrances were addressed by the British government to that of the United States respecting the fitting out of privateers in United States ports with an intent to prey upon British commerce, and that the demands of the British government were admitted by the United States, and were formally recognized in the 7th article of the treaty between the two countries of the 19th of November, 1794.
But an examination of the actual occurrences, and of the history of that remarkable period, presents a state of facts materially different from those relating to the Alabama.
Those facts may be shortly stated as follows:
The revolutionary government of France had openly avowed its determination to disregard all the principles of international law which had been acknowledged by civilized states, and that government proceeded to put in force its determination by claiming to equip, as a matter of right, and by actually equipping privateers in the neutral ports of the United States, by sending those privateers forth from those ports to prey upon British commerce, by bringing prizes into the neutral ports, and by their going through some scant forms of adjudication.
This was the avowed system upon which the agents of belligerent France claimed to act, and upon which, owing to the temporary superiority of her naval force, they did, for a short period, act in the neutral ports and waters of the [Page 40] United States, notwithstanding the remonstrances of the United States government.
It was these several facts, namely, the open and deliberate equipment of privateers in American ports by the French, the capture by those privateers of British vessels in United States waters, and the bringing them as prizes into United States ports, which formed collectively the basis of the demands made by the British plenipotentiaries. Those demands had reference not to the accidental evasion of a municipal law of the United States by a particular ship, but to a systematic disregard of international law upon some of the most important points of neutral obligation.
This is apparent from the whole correspondence of the British government with the government of the United States, and from the replies of Mr. Jefferson to Mr. Hammond, the British minister. Consequently, neither the complaints of the British government in 1793 nor the treaty of 1794 have any bearing upon the question now under discussion.
With regard to the claim for compensation now put forward by the United States government, it is, I regret to say, notorious that the Queen’s proclamation of the 13th of May, 1861, enjoining neutrality in the unfortunate civil contest in North America, has, in several instances, been practically set at naught by parties in this country. On the one hand, vast supplies of arms and warlike stores have been purchased in this country, and have been shipped from British ports to New York for the use of the United States government; on the other hand, munitions of war have found their way from this country to ports in possession of the government of the so-styled Confederate States.
These evasions of the neutrality prescribed by the Queen’s proclamation have caused her majesty’s government much concern, but it is not difficult to account for what has occurred.
Such shipments as I have spoken of may be effected without any breach of municipal law; and commercial enterprise in this country, as elsewhere, is always ready to embark in speculations offering a prospect of success, or in which, at all events, the promise of gain is supposed to be greater than the risk of loss.
British subjects who have engaged in such enterprises have been left by her Majesty’s government to abide by the penalty attaching to their disregard of the Queen’s proclamation of neutrality, that penalty being, by international law, the condemnation as prize of war of vessel and cargo if captured by a belligerent cruiser, and duly condemned in a competent prize court.
Her Majesty’s government have nevertheless availed themselves of every fitting opportunity to discourage these enterprises, and I have the honor to refer you, in illustration of the truth of this, to the answer which I caused to be returned on the 6th of July to a memorial from British merchants and ship-owners at Liverpool, and of which I furnished you confidentially with a copy in my note of the 4th of August.
It is right, however, to observe that the party which has profited by far the most by these unjustifiable practices has been the government of the United States, because that government having a superiority of force by sea, and having blockaded most of the confederate ports, has been able, on the one hand, safely to receive all the warlike supplies which it has induced British manufacturers and merchants to send to United States ports in violation of the Queen’s proclamation; and, on the other hand, to intercept and capture a great part of the supplies of the same kind which were destined from this country to the Confederate States.
If it be sought to make her Majesty’s government responsible to that of the United States because arms and munitions of war have left this country on account of the confederate government, the confederate government, as the other belligerent, may very well maintain that it has a just cause of complaint against the British government because the United States arsenals had been replenished [Page 41] from British sources. Nor would it be possible to deny that, in defiance of the Queen’s proclamation, many subjects of her Majesty, owing allegiance to her crown, have enlisted in the armies of the United States. Of this fact you cannot be ignorant. Her Majesty’s government, therefore, have just ground for complaint against both of the belligerent parties, but most especially against the government of the United States, for having systematically, and in disregard of that comity of nations which it was their duty to observe, induced subjects of her Majesty to violate those orders which, in conformity with her neutral position, she has enjoined all her subjects to obey.
Great Britain cannot be held responsible to either party for these irregular proceedings of British subjects; and an endeavor to make her so would be about as reasonable as if her Majesty’s government were to demand compensation from the United States for the injuries done to the property of British subjects by the Alabama, resting their demand on the ground that the United States claim authority and jurisdiction over the Confederate States, by whom that vessel was commissioned.
So far as relates to the export of arms and munitions of war by subjects of Great Britain, from British ports, for the use of the confederates, it is a sufficient answer to say that the municipal law of this country does not empower her Majesty’s government to prohibit or interfere with such export, except in extraordinary cases, when the executive is armed with special powers; and, with regard to the law of nations, it is clear that the permission to export such articles is not contrary to that law, and that it affords no just ground of complaint to a belligerent. The authorities for this latter position are numerous and unconflicting; but it may suffice to refer to passages on the subject in the works of two American writers of high and admitted authority. The passages are as follows:
First. “It is not the practice of nations to undertake to prohibit their own subjects by previous laws from trafficking in articles contraband of war. Such trade is carried on at the risk of those engaged in it, under the liabilities and penalties prescribed by the law of nations or particular treaties.”—(Wheaton’s International Law, 6th edition, 1855, page 571, by Lawrence.)
Secondly. “It is a general understanding that the powers at war may seize and confiscate all contraband goods, without any complaint on the part of the neutral merchant, and without any imputation of a breach of neutrality in the neutral sovereign himself. It was contended on the part of the French nation, in 1796, that neutral governments were bound to restrain their subjects from selling of exporting articles contraband of war to the belligerent powers. But it was successfully shown on the part of the United States that neutrals may lawfully sell at home to a belligerent purchaser, or carry, themselves, to the belligerent powers contraband articles subject to the right of seizure in transitu. This right has since been explicitly declared by the judical authorities of this country, (United States.) The right of the neutral to transport, and of the hostile power to seize, are conflicting rights, and neither party can charge the other with a criminal act.”—(Kent’s Commentaries, vol. 1, page 145, 8th edition, 1854.)
In accordance with these principles, the President’s message of 31st December, 1855, contains the following passage: “In pursuance of this policy the laws of the United States do not forbid their citizens to sell to either of the belligerent powers articles contraband of war, or take munitions of war or soldiers on board their private ships for transportation; and although, in so doing, the individual citizen exposes his property or person to some of the hazards of war, his acts do not involve any breach of international neutrality, nor of themselves implicate the government.”
As regards the sailing of the Alabama from Liverpool, I cannot do better than refer you to the circumstances respecting that vessel, with which I have already had the honor to make you acquainted. In my letter of the 28th of [Page 42] July I informed you that it was requisite to consult the law officers of the crown before any active steps could be taken in regard to that vessel. In my letter of the 22d of September I explained that, from the nature of the case, some time was necessarily spent in procuring the requisite evidence; that the report of the law officers was not received until the 29th of July; and that on the same day a telegraphic message reached her Majesty’s government stating that the vessel had that morning sailed. Instructions were then despatched to detain her should she put in either at Queenstown or Nassau, to one or other of which ports it was expected that she would go; but the Alabama did not call at either of those places. On the 4th of October I stated to you that much as her Majesty’s government desired to prevent such occurrences, they were unable to go beyond the law, municipal and international; and on the 16th of that month I replied to your observations with reference to the Infringement of the foreign enlistment act, by remarking that it was true that the foreign enlistment act, or any other act for the same purpose, might be evaded by subtle contrivances; but that her Majesty’s government could not on that account go beyond the letter of the existing law.
It is needless, however, that I should pursue this branch of the question further, since you admit that you are aware that the Alabama sailed not only without the direct authority or indirect permission of her Majesty’s government, but in opposition to the municipal law, and in spite of earnest endeavors made to enforce it.
That this should have happened is a circumstance not calculated to excite much surprise in the United States, for two reasons: first, because the principal municipal law of the United States (passed almost at the same time as that of this country, and, it is believed, after a full understanding between the two States) is, in fact, almost identical with that of Great Britain upon this subject; and, secondly, because its notorious evasion during the late war, waged by Great Britain and her allies against Russia, was the subject of remonstrance on the part of her Majesty’s representative at Washington to the United States.
Great Britain was then, as on other occasions, assured that every effort which the law would permit had been made to prevent such practices; that the United States government could only proceed upon legal evidence, the law as to which is almost, if not entirely, the same as in this country, and that without such evidence no conviction could be procured.
In the case of the Alabama it is not denied that strict orders were given for her detention as soon as it appeared to the legal advisers of the crown that the evidence might be sufficient to warrant them in advising such a course, and that the Alabama contrived to evade the execution of those orders.
Her Majesty’s government cannot, therefore, admit that they are under any obligation whatever to make compensation to United States citizens on account of the proceedings of that vessel.
As regards your demand for a more effective prevention for the future of the fitting out of such vessels in British ports, I have the honor to inform you that her Majesty’s government, after consultation with the law officers of the crown, are of opinion that certain amendments might be introduced into the foreign enlistment act, which, if sanctioned by Parliament, would have the effect of giving greater power to the Executive to prevent the construction in British ports of ships destined for the use of belligerents. But her Majesty’s government consider that, before submitting any proposals of that sort to Parliament, it would be desirable that they should previously communicate with the government of the United States, and ascertain whether that government is willing to make similar alterations in its own foreign enlistment act; and that the amendments, like the original statute, should, as it were, proceed pari passu in both countries.
I shall accordingly be ready at any time to confer with you, and to listen to [Page 43] any suggestions which you may have to make by which the British foreign enlistment act, and the corresponding statute of the United States, maybe made more efficient for their purpose.
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
Charles Francis Adams, Esq., &c., &c., &c.