Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session Thirty-eighth Congress, Part I
Acting Consul Fullarton to Earl Russell.—(Received November 27.)
My Lord: I have the honor to enclose copies of my letters to Mr. Benjamin on behalf of British subjects forcibly enlisted, and the reply of that gentleman, conveying to me the president’s order to depart promptly from the confederacy, and in the mean time to cease the exercise of any consular functions within its limits.
In his proclamation calling for volunteers for State defence, the governor of Georgia informed the people that the force so raised was to be used solely for the purpose of repelling raids or incursions by the federalists against their homes and property; that it was not contemplated to interrupt their ordinary avocations unless in case of such sudden emergency, and then only until the emergency was over, and that in no case would they be required to meet the regular army of the United States.
The pressing necessity for recruiting armies wasted by the ravages of war, the presence of a large federal army upon the borders of the State, and information received by myself, led me to suspect that just so soon as this force should be organized and transferred from the State to confederate control, Governor Brown’s promises or pledges would not be fulfilled.
Events proved the correctness of my anticipations. From all the upper and middle portions of the State these troops were ordered to report at Atlanta, the headquarters of General Bragg, for no other purpose than that of re-enforcing [Page 857] the confederate army under that officer; and I beg your lordship to notice that Mr. Benjamin does not attempt to controvert the statement. Accordingly, when Governor Brown refused my application, I deemed it to be my duty, under the instructions embodied in your lordship’s despatch of the 11th October, 1862, and in those of Lord Lyons of the 12th November, 1861, and 14th March, 1862, to give British subjects the advice to which exception has been taken, and on which the action of President Davis is based.
Circular addressed by Lord Lyons to her Majesty’s consuls in southern States.
Sir: Her Majesty’s secretary of state for foreign affairs has under his consideration, and has referred to the proper law advisers of the crown, a despatch, dated the 31st of July last, from her Majesty’s consul at Charleston, applying for instructions with regard to the question of the liability of British subjects to perform military service in this country.
With reference to my previous instructions to you on this subject, I have to state to you that the question which has now practically arisen, under very peculiar circumstances, is one not admitting of a satisfactory solution by being left to the determination of the ordinary municipal laws and courts of the several States, as might be the case under ordinary circumstances.
Whilst her Majesty’s government might be well content to have British subjects voluntarily domiciled in a foreign country, liable to all the obligations incident to such foreign domicile, including, where imposed by the municipal law of such country, service in the militia or national guard, or local police, for the maintenance of internal peace and order, or even, to a limited extent, for the defence of the territory from foreign invasion, it is not reasonable to expect that her Majesty’s government should in the present state of things in this country remain entirely passive under the treatment to which it appears British subjects are actually exposed in some of the States; such, for instance, as being embodied and compelled to serve in regiments, perhaps nominally of militia, while they would be really exposed not only to the ordinary accidents and chances of war, but also to be treated as rebels and traitors in a civil war, involving many questions in which they, as aliens, cannot, simply by reason of their domicile, be supposed to take interest, as to which they may be incompetent to form an opinion, and in the determination of which they are precluded from freedom of choice and action. No state can justly frame laws to compel aliens resident within its territories to serve against their will in armies ranged against each other in a civil war, and à fortiori, in the absence of any such law, they cannot enforce the service.
I was, however, able to state on the 4th of July last, that in no case, either in the northern or southern States, had the discharge of a British subject, enlisted against his will, been to my knowledge refused or delayed, on proper representations being made by one of her Majesty’s consuls or by myself; and her Majesty’s government have therefore concluded that the desired exemption is practically conceded. Should this, however, not continue to be the case, her Majesty’s government will consider whether it is not expedient to invite those foreign governments which are interested in this question to unite with them in such representations as may be likely to secure to aliens the exemptions which would be now so highly desirable.
Her Majesty’s government assume that there is no hope of securing in practice, especially in South Carolina, any legal decision of a competent court favorable to the exemption as a matter of right.
I am, &c.,
Lord Lyons to Consul Molyneux.
Sir: I have received your despatch of the 27th ultimo, and have learned from it with great regret that her Majesty’s subjects residing in the State of Georgia are in danger of being pressed into the military service of that State, or of the so-called confederate government.
The view of her Majesty’s government respecting the compulsory enlistment of British subjects in military bodies to be employed in the existing civil war were communicated to you in my despatch of the 12th November last. In conformity with those views, I have to instruct you to use your utmost endeavors to prevent bona fide British subjects being pressed into the military service. I authorize you to remonstrate, in case of need, not only with the authorities of the State of Georgia, but with the de facto government at Richmond. At the same time, I am well aware that the lives and property of British subjects might be brought into serious and immediate danger in a time of excitement by any imprudent proceedings on your part; I therefore leave it to your discretion to decide upon the particular measures to be taken with a view to obtain the exemption of our fellow-subjects from compulsory enlistment.
I must beg you to bear in mind that it is the desire of her Majesty’s government that no mention of her Majesty’s legation at Washington be made in communications with the de facto authorities, whether of the incliyidual States or of the general government of the so-called Confederate States. You will in all such communications, whether they be verbal or written, carefully avoid mentioning any allusion to me or this legation.
I forwarded to Earl Russell a copy of your despatch of the 27th ultimo, and I shall also send his lordship a copy of this answer to it.
I am, &c.,
Circular addressed to her, Majesty’s consuls in the Confederate States of North America.
Sir: Her Majesty’s government have had their attention called to the forcible enlistment of British subjects in the army of the so-called Confederate States.
I have to instruct you to lose no time in remonstrating strongly against such a proceeding on the part of the authorities of those States.
British subjects domiciled only by residence in the so-called Confederate States cannot be forcibly enlisted in the military service of those States by virtue of an ex post facto law, when no municipal law existed at the time of the establishment of their domicile rendering them liable to such service.
It may be competent to a State in which a domiciled foreigner may reside to pass such an ex post facto law, if at the same time option is offered to foreigners affected by it to quit, after a reasonable period, the territory, if they object to serve in the armies of the State; but without this option such a law would violate the principles of international law; and even, with such an option, the comity heretofore observed between independent States would not be very scrupulously observed.
The plainest notions of reason and justice forbid that a foreigner admitted to reside for peaceful and commercial purposes in a State forming a part of a federal union should be suddenly, and without warning, compelled by the State to take an active part in hostilities against other States which, when he became domiciled, were members of one and the same confederacy; which States, moreover, have threatened to treat as rebels, and not as prisoners of war, all who may fall into their hands.
To these considerations must be added the fact that the persons who have been the victims of this forced enlistment are forbidden under severe penalties by the Queen’s proclamation to take any part in the civil war now raging in America, and that thus they are made, not only to enter a military service contrary to their own wishes, and in violation of the tacit compact under which they took up their original domicile, but also to disobey the order of their legitimate sovereign.
You will urge these several considerations on the de facto authorities of the Confederate States, adding that her Majesty’s government confidently hope and expect that no further occasion for remonstrance will arise on this point.
I am, &c.,
From the enclosed general order of General Cobb, your lordship will observe the purpose of the government to require from these troops a service different from that which, by Governor Brown’s proclamation, they were led to expect.
I have, &c.,
Acting Consul Fullarton to Mr. Benjamin.
Sir: Complaint having been made to me by J. C. Peters, a British subject, residing in Columbus, Georgia, that he has been compelled to enter military service under Governor Brown’s order for a draft to complete the number of 8,000 men required from this State for State defence, and having failed to secure his exemption from Governor Brown while the force was under his command, it becomes my duty to apply to you on his, behalf now that I observe, from Major General Cobb’s General Order No, 7, dated at Atlanta the 29th of September, that these troops have been turned over to the confederate government.[Page 859]
Whilst her Majesty’s government might be well content to leave British subjects voluntarily domiciled in a foreign country liable to all the obligations incident to such foreign domicile, including, where imposed by the municipal law of such country, service in the militia or national guard or local police, for the maintenance of internal peace and order, or, even to a limited extent, for the defence of the territory from foreign invasion, it is not reasonable to expect that her Majesty’s government should, in the present state of things in this country, remain entirely passive under the treatment to which British subjects are exposed; such, for instance, as being compelled to serve in regiments nominally of militia, while they would be really exposed, not only to the ordinary accidents and chances of war, but also to be treated as rebels and traitors in a civil war involving many questions in which they as aliens cannot, simply by reason of this domicile, be supposed to take interest, as to which they may be incompetent to form an opinion, and in the determination of which they are precluded from freedom of choice and action. No State can justly frame laws to compel aliens resident within its territories to serve against their will in armies ranged against each other in civil war, and, à fortiori, in the absence of such laws they cannot enforce the service.
To these considerations must be added the fact that the persons who are the victims of this forced enlistment are forbidden, under severe penalties, by the Queen’s proclamation, to take any part in the civil war now raging in this country, and that thus they are made, not only to enter a military service contrary to their own wishes, and in violation of the tacit compact under which they took up their original domicile, but also to disobey the order of their legitimate sovereign.
I have always understood that the men composing this force for State defence were only expected to defend their homes from sudden incursions or raids from the federal forces, and that it was not contemplated to take them from their homes, or to interrupt their ordinary avocations, unless in case of such sudden emergency. But it appears that they are ordered into camp for the purpose of being incorporated with and made part and parcel of General Bragg’s army now confronting the federal forces in the upper part of this State. You must admit that service for such a purpose is simply conscription under another form.
Under my instructions I have felt it to be my duty to advise British subjects that, whilst they ought to acquiesce in the service required, so long as it is restricted to the maintenance of internal peace and order, whenever they shall be brought into actual conflict with the forces of the United States, whether under the State or confederate government, the service so required is such as they cannot be expected to perform.
I respectfully submit that Peters, as a bona fide British subject, is entitled to exemption from service, and beg that you will release him from a position which forces him to violate that neutrality insisted on in her Majesty’s proclamation.
I may mention that Peters was a member of a company of foreigners tendered to and accepted by the mayor of Columbus for police duty, but, when drafted, was assigned to a company from that city commanded by Captain Brooks.
I am, &c.,
Acting Consul Fullarton to Mr. Benjamin.
Sir: With reference to my letter of the 1st instant, I have the honor to request you to consider the representations therein on behalf of J. C. Peters, as [Page 860] made also on behalf of the following British subjects, namely: Alexander Pratt, Anthony Cadman, Michael Riley, and Henry Stephenson, of Columbus, and William Gray, of La Grange, Georgia.
[For enclosure 3 in No. 10, Mr. Benjamin to Acting Consul Fullarton, October 8, 1863, see enclosure 2 in No. 8.]
General Orders, No. 10.
1. The State troops under the command of Major General Howell Cobb will hereafter be known and designated as the Georgia State guard.
2. The troops not yet called put are urged to complete their regimental organizations as required by General Orders No. 7, current series, from these headquarters. As soon as a regiment is organized the fact will be reported to these headquarters. The field officers of regiments organized prior to the 1st November next will be elected by the men; after that date the companies not attached to regiments or battalions will be organized into regiments by order, and the field officers appointed by the president of the Confederate States. In cases of organized battalions, companies will be added to complete the regiment, and the additional field officers appointed by the president.
3. The commanding general desires all regiments, as soon as formed, to report to these headquarters whether or not they are willing, without reference to territorial limits, to defend their State wherever assailed or threatened. With the enemy in overwhelming numbers upon our borders, and just driven by our gallant army from the soil of our own State, he feels that the appeal will not be made in vain to Georgians to come forward and follow the patriotic example of their brethren now in the field, who have declared their willingness to waive all territorial claims, and go wherever the interest and safety of the State require them to go. He confidently trusts that none will be found willing to swell the ranks of the “solitary exception” who failed to respond to the call made upon those now in the field.
4. Conscript officers claiming persons in the ranks of the Georgia State guard as liable to conscription will present their claims to the commanding officer of the regiment, battalion, or company when unattached, whose duty it is to examine and decide the question of such liability, which can be reviewed, if necessary, at these headquarters, and finally by the department at Richmond. Conscript officers can reach the men in the ranks only through their commanding officer. Commissioned officers in service are not subject to conscription.
By command of Major General Howell Cobb: