Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session Thirty-eighth Congress, Part I
Mr. Adams to Mr. Seward.
Sir: In connexion with your despatch, No. 806, of the 11th of January last, and mine numbered 584, of the 28th of the same month, and 590 of the 4th of February, I now transmit copies of a later note of Lord Russell, dated the 9th instant, on the same subject, and of my reply on the 15th.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, &c., &c., &c.
Earl Russell to Mr. Adams.
Sir: With reference to my letter of the 1st ultimo, I have now the honor to reply to your letter of the 20th of January, in which you enclose copies of papers which have come into the possession of the United States government, purporting to show that ships and cargoes intended to run the blockade have been purchased in this country on account of the so-styled confederate government. You state that this evidence furnishes another strong instance of the manner in which the insurgents habitually abuse the belligerent privileges which have been conceded to them by this country; and you say, that after such an exposure, all British subjects engaged in these violations of blockade must incur a suspicion strong enough to make them liable to be treated as enemies, and, if taken, to be reckoned as prisoners of war.
To this declaration her Majesty’s government must reply that they are not prepared, on account of the exigencies or distresses of either belligerent, to assent to the introduction, to the injury of neutral states, of any alteration in the well-established principles of international law.
You are no doubt aware, as every American jurist must be aware, that it is not competent to a belligerent government to treat as prisoners of war the subjects of neutral states taken on board vessels (not long ships-of-war of the enemy,) endeavoring or alleged to be endeavoring to break the blockade, and it would be impossible for her Majesty’s government to permit British subjects to be made exceptions to the general rules and practice of international law on this or any other subject.
I need scarcely remind you that the rights of visit and search and of blockade are belligerent rights which press with sufficient severity upon neutrals, and which, as her Majesty’s government have already had occasion to observe in their correspondence with the United States government during the war, would be intolerable without a faithful and scrupulous observance, on the part of the belligerent, of his corresponding obligations.
[Page 329]It is obvious that her Majesty’s government can in no way be responsible for the conduct of the confederate belligerent; and with reference to your statement that the confederates habitually abuse the privileges which have been conceded to them by Great Britain, I must beg leave to remind you that not only Great Britain, but every other neutral state, has of necessity recognized the confederates as belligerents, and has, therefore, of necessity conceded to them, not indeed “privileges,” but the same “rights” which a neutral state is bound by international law to concede to all belligerents, and which Great Britain has conceded in the present war to the United States.
Her Majesty’s government have, on previous occasions, expressed their regret that any of her Majesty’s subjects should violate the blockade, and I repeat that regret most unreservedly on the present occasion; but it must be remembered that the blockade is one of most unusual proportions; that it severely affects the welfare of no inconsiderable portion of her Majesty’s subjects, and that the penalty of confiscation and condemnation of British property, to a very large amount, has constituted, to say the least, no very inadequate punishment of the offenders. At all events you will hardly deny that, whether that punishment is or is not adequate, in the opinion of the government of the United States, it is the only penalty to which such offenders can, according to the well-known rules of international law, be made liable. If the fact be, as the papers enclosed in your note seem to show, that some ships engaged in running the blockade, but not navigable as vessels of war, are the property of the government of the Confederate States, this fact cannot, in the judgment of her Majesty’s government, furnish any justification whatever for the treatment of British subjects in a manner not warranted by international law, even if the British flag should be improperly used to disguise the character of such vessels.
If, indeed, British subjects were found on board vessels belonging to the confederate government, and were not merely passengers, but were employed in connexion with the vessel and cargo in circumstances which rendered it practically impossible that they should be ignorant of the ownership of the vessels, her Majesty’s government do not say that there might not be a prima facie ground for treating such persons as prisoners of war; but the case now in controversy is that of British subjects engaged as seamen on board of vessels ostensibly British, and which they have had every reason to suppose to be really and bona fide such; and her Majesty’s government must insist that the United States government would be without warrant in treating such persons as enemies merely on the ground of the discovery, and more on the mere suspicion, without any proof applicable to the particular case, of a concealed interest of the confederate government in such vessel.
With respect to the charge preferred against Lieutenant Rooke, her Majesty’s government fail to perceive that the facts alleged would have amounted to a participation by that officer in any warlike service or operation on the part of the Confederate States. Her Majesty’s government will not fail to take the proper steps against any officer, bearing her Majesty’s commission, who shall be proved to have illegally contravened her Majesty’s orders to all her subjects to observe a strict neutrality during the present deplorable war; but in Lieutenant Rooke’s case it does not appear that, on further inquiry, the United States authorities were disposed to view the proceedings of that young officer as anything more than the result of inconsiderate thoughtlessness, and I was happy to learn, by a recent mail, that Lieutenant Rooke had been released from confinement.
I shall only further observe, with reference to the alleged intentions of a certain iron-ship builder named James Ash, and of a firm called Stringer, Pembroke & Co., to build steamers for the confederate belligerents, that you must be well aware of the determination of her Majesty’s government to put in force, to the utmost of their power, the provisions of the foreign enlistment act against [Page 330] every British subject who shall violate those provisions, and as to whose offence her Majesty’s government may be able to obtain legal and proper evidence, but without such evidence it is impossible for her Majesty’s government to act against the persons or property of British subjects.
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 the honor to acknowledge the reception of your lordship’s note of the 9th instant, in reply to mine of the 20th of January last. I have read it with great attention, and must beg your lordship’s pardon if I fail to find in it any substantial conflict with the principles enunciated in my letter.
The point to which I took the liberty of calling your lordship’s attention was, that the insurgent authorities at Richmond, having received from her Majesty’s government a recognition as a belligerent carrying on war upon the ocean with a power with which Great Britain is at peace, are now detected in an attempt to abuse the rights so obtained. To this end they systematically buy vessels of British subjects, man them with British seaman, fill them with supplies and munitions of war obtained in British ports, and persist in sailing them to their respective destinations in the blockade region, using the protection of the British flag. My government, having been made aware of these extraordinary proceedings, has directed me simply to apprize your lordship of them in order that some check may be applied by the party most interested for the better security of its innocent subjects; for it must be perfectly obvious to your lordship that, without interference of some kind, the duty of self-defence, against such a policy of disguised hostility, becomes imperative. Without the possibility of distinguishing between those vessels bona fide owned by British subjects, intending to violate the blockade, and those made exactly like them by the insurgents for the purpose of better carrying on their warfare, it must be apparent that all must be equally liable to incur the suspicion of being actual enemies, and their crews prima facie to be treated as such on capture.
I understand your lordship not to deny, that to the extent that British subjects may be found in the vessels of the enemy, knowing them to be so, and employed in circumstances which render it practically impossible that they should be ignorant of the work they are doing, the right to treat them as prisoners of war, in case of capture, is a valid right. But if this be once admitted, it necessarily follows that in all cases where suspicion of actually belonging to the enemy attaches to a vessel under certain circumstances, though disguised under British colors, the right of search and seizure is a matter of course. And if it should happen that on board of a vessel so seized are to be found numbers of British subjects, apparently engaged in a work in which it is well known that many of their fellow-subjects are actually enlisted elsewhere, it must be obvious to your lordship that they will not be able, by any care that may be exercised by the captors, wholly to escape the risk of unpleasant consequences that may attend the difficulty of distinguishing between the partially innocent neutral and the wholly guilty enemy.
That I may more clearly present my argument I pray permission to illustrate it by a single example, which has lately been brought to my notice. It [Page 331] has been stated to me, on authority which appears to be trustworthy, that a British subject, named Thomas J. Waters, started from Greenlithe on or about the 17th of January last, in command of a steamer called the Annie, apparently fitted out for ulterior designs in America. After getting as far as Portland a heavy blow compelled him to put back, on the 19th or 20th, to Southampton, from whence he sailed again a few days after. Just before leaving London this gentleman is stated to have applied to be, and to have been, actually gazetted as a lieutenant in the naval reserve. The object in making such an application at the precise moment could scarcely have been other than in case of difficulty to take advantage of the national uniform and flag to protect his ulterior hostile operations against a foreign nation. Whether Lieutenant Waters be or be not acting under the authority of the insurgents at Richmond, it is obviously impossible now to determine. The true facts could only be elicited in case of the capture of him and his vessel. In the mean time it must be obvious to your lordship that, under present circumstances, the flagrant abuse thus committed of the position he holds as a British officer would almost necessarily subject him, in the first instance, to be placed in the category of those who are found carrying on actual war against the United States.
In thus repeating the proposition made in my former note, I beg to be understood as by no means intending to “introduce, to the injury of neutral states, any alteration in the well-established practice of international law.” I am not disposed to contest the doctrine which I find laid down in your note on the treatment of the subjects of a neutral power endeavoring to break a blockade. All that I ventured to suggest to your lordship was that, in the case now in question, all British subjects engaged in this work are made liable, under certain circumstances, to be treated prima facie as persons actually enlisted in the service of the enemy. I never denied that the power would still remain with them to relieve themselves by ultimately proving the contrary. What I wished to point out was the inconvenience of the process of thus shifting the burdens of proof; for, whereas, in common cases, it is the duty of the captor to presume the parties to be neutrals, by the new element now introduced it becomes his duty to presume them to be guilty until they can show the contrary.
I am the more earnest in making this representation that it is my conviction that the power to prevent the occurrence of this difficulty, and of the irritation that must necessarily grow out of it, rests in a great measure with her Majesty’s government. It is by no means the wish of that which I have the honor to represent to resort to unnecessary harshness in the treatment of any persons who become involved in this painful war, and much less neutrals. But after the experience which it is constantly receiving of the manner in which the war has been and is sustained by the aid of men, money, and supplies from her Majesty’s kingdom, it is no more than a simple duty to exercise all legitimate means in its power to suppress such operations. Knowingly to permit the subjects of neutral nations, actually serving in the ships of the enemy, to escape under the shelter of a flag which they wilfully abuse to the end of better effecting their resistance, is a degree of liberality which I am very confident no government would excuse in its own case or expect of the United States. If, as your lordship observes, British property to a very large amount has incurred the penalty of confiscation and condemnation during the present war, I feel sure that this calamith has not been visited upon her Majesty’s subjects without painful, and earnest, and continued warnings, on my part, conveyed by direction of the government which I have the honor to represent.
Just so it is in the present instance. Feeling, as my government does, the serious injury inflicted upon the confidence which should always exist in the sacredness of the flag of a neutral nation by the detection of a plot to degrade it to a most sinister use, I have been directed to make a representation of the facts, as well as of some consequences that may naturally follow if measures of prevention be not adopted.
[Page 332]I cannot for a moment admit, in the view thus taken of the subject, there is the smallest variation proposed from a faithful and scrupulous observance of all the obligations imposed upon belligerents by the law of nations.
Having thus performed this duty to the best of my ability, I pray your lordship to accept the assurances of the highest consideration with which I have the honor to be, my lord, your lordship’s most obedient servant,
Right Hon. Earl Russell, &c.,&c., &c.