Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the First Session Thirty-ninth Congress, Part I
Mr. Adams to Mr. Hunter
Sir: I have the honor to transmit a copy of the London Times of Tuesday, containing a report of the answers made by ministers in both houses to inquiries made respecting the withdrawal of the recognition of belligerent rights from the rebels. The argument is feeble enough in both cases; but as it makes now very little difference what may be the course taken, all that I can add is to regret that what would have appeared to be a manly and frank retraction of an originally hasty step, had not been spontaneously offered in season to give it value in conciliating good feelings for the future.
I have the honor to be, sir, your obedient servant,
William Hunter, Esq., Acting Secretary of State, Washington, D. C.
Belligerant rights.
Lord Houghton said that it was now just four years since the government, by order in council, recognized as belligerents the so-called Confederate States of America, and he now rose for the purpose of asking the noble lord the secretary for foreign affairs the question of which he had given notice, namely, whether, in the presence of events which had recently occurred, it was the intention of the government to withdraw that recognition. It would seem that such withdrawal would necessarily follow from the conclusion of the calamitous war in America; but he was bound to add that he was afraid that they could not technically say that the war in America was at an end, for he held in his hand an important opinion of the Attorney General of the United States, given about three weeks ago, to the effect that the capitulation between General Grant and General Lee determined that the southern States were still to be regarded as belligerent. Under these circumstances, if the war was one entirely carried on by land, it would be difficult for England to withdraw the recognition of the southern States as belligerents; but he was now regarding the matter as one affecting this country as a naval power solely. It was only as a naval power that we had occasion to act at all in the matter. He inferred that the concession of belligerent rights to the south by this country was supposed to follow necessarily from the blockade of the south by the north; because when a government wished to prevent the ships of a neutral power from approaching its ports, and at the same time did not wish that any belligerent rights should grow out of that act, it simply closed its ports and did not establish a blockade. It appeared to him that though this blockade had not been formally raised, yet, those ports having been closed by the supreme authority of the United States, that authority reasserted its full power there. It was the question of the ports and of the sea which had led us to consider the question of the belligerent rights, and therefore he should be glad if the foreign secretary were able to say that, now the ports were closed by supreme authority, the government of the United States having recovered its power over that territory, and now that we might entertain a hope of peace, there would be no difficulty whatever in cancelling the order in council by which the so-called Confederate States were declared belligerents.
Earl Russell. I very much regret two circumstances connected with this question; the one being the terms in which my noble friend has placed his question upon the table of the house, and the other the particular time at which he has thought fit to ask it. [Hear, hear.] With regard to the first, my noble friend asks “whether it is the intention of the government, after the events which have lately occurred in the United States, to withdraw the admission of belligerent rights conceded to the so-called Confederate States.” Now, it was not a question of concession at all. It was a simple question of fact. [Hear.] If peace exists throughout the United States of America the government of the United States will, by treaty and by the natural effect of the law of nations, allow our merchant ships to go into their ports and there trade. If, on the contrary, a state of war exists, in that case they will blockade the ports and exercise belligerent rights. Now, what were the facts here? When a war is going on between two separate nations, as a few years ago was the case between Austria on the one hand and France and Italy on the other, both the belligerents assert belligerent rights, and her Majesty properly issues thereupon a proclamation of neutrality. But, instead [Page 368] of a war, there may be an insurrection. That insurrection may be a trivial one, and carried on entirely in the interior of the country; or it may be of such vast extent as to amount really to a war. Now that question might have been a difficult one for us to decide; but the United States government really decided it when the President of the United States, on the 19th of April, 1861, issued a proclamation by which he decreed that all the ports of seven States of the Union should be blockaded, and thereby put the United States in possession of belligerent rights. [Hear, hear.] When the President of the United States did that he left her Majesty’s government but two courses to pursue: either to acknowledge the blockade, and thus to acknowledge a state of war, or to decide that the blockade should not be acknowledged, and that her Majesty’s government would not concede belligerent rights to the United States, which would of course have led to war between this country and the United States. [Hear, hear. ] The first was the course pursued; but in pursuing that course it was impossible we should say that there was no power with which war was carried on by the United States. There cannot be a war which is carried on by one party only. In point of fact, as we all know, there was a war between a body of persons, calling themselves the, Confederate States of America on the one hand, and the President of the United States on the other. From the moment, then, that we acknowledged this blockade of southern ports by the President of the United States, it was not we who conceded belligerent rights; it was the President of the United States, who declared himself in possession of belligerent rights, who declared himself possessed of the right to carry on war, which is only the English for belligerent rights, and thereby obliged us to come to a decision one way or the other. [Hear, hear.] Had it been otherwise, the President of the United States could not have ordered the navy of the United States to stop ships of this country on the high seas. No power has contended more strenuously than the United States that there can be no right of search extending over vessels on the high seas in time of peace. But that is the power which the United States have exercised, and that is the right which her Majesty acknowledged. [Hear.] Her Majesty did not concede belligerent rights, but recognized the state of facts which the President of the United States himself declared, and followed this by a proclamation of neutrality in the war which was then being carried on. That war, as my noble friend stated, has been carried on during four years. And I now come to my second objection to the question of my noble friend, namely, that he has asked it at a most unfortunate time, [hear, hear,] because it is very difficult to say exactly what the state of affairs is at the present moment. My noble friend himself evidently does not know the state of facts, because he says that, instead of blockading the ports, the President of the United States has closed the ports. The opinion of her Majesty’s law officers is, that the government of the United States may lawfully close the ports, which are in possession of the United States authorities, and that within the waters of the United States, within three miles of the shore, they may forbid any neutral merchantman from entering those ports. But the authority of the United States does not extend to the port of Galveston. So far as we know by the latest accounts we have received, that port is still completely in the possession of the confederates. With regard, therefore, to that port, the power exercised by the United States must be the power of blockade, and not the power of closing the ports. Then comes the other question, namely, whether the United States still continue to maintain the right of search over merchant vessels upon the high seas. The United States’ authorities during the last four years have exercised belligerent rights in that respect, and have exercised them with very great severity. [Hear, hear.] I do not know any case in which the right of search, of capture of vessels, and imprisonment of crews, has been exercised with greater severity by a belligerent than it has been exercised by the United States—perhaps not with as great severity. [Hear, hear. ] As to the question of what we are about to do, and whether this belligerent right on the part of the United States is to continue or not,. it will be impossible for her Majesty to consent that vessels belonging to British subjects, and bearing the British flag, should be searched upon the high seas, and that at the same time we should admit that no war is going on. [ Hear, hear. ] It is impossible that we should allow the United States to exercise a belligerent right, and at the same time allow that a state of complete peace exists, and that everything else is to go on as usual with regard to the United States. My noble friend knows that one of the earliest international text-books is a work De Jure Belli et Pacts. There is the jus belli, and there is also the jus pacts. They are two distinct things, and you have both existing together. We are anxious to ascertain, and we have asked the government of the United States, what is the present state of the case. A little while ago the United States’ government proposed that federal ships-of-war should be allowed to enter her Majesty’s ports without restriction. We have answered that, with regard to the requisition that a vessel-of-war should leave her Majesty’s ports either in the colonies or the United Kingdom within twenty-four hours, it was not necessary to keep up that restriction; but, before anything further was determined with regard to confederate vessels-of-war, we wished to know whether the United States intend to maintain and exercise their belligerent rights, or whether they give up altogether the right of searching and examining, of detaining and capturing, British merchant vessels on the high seas. [Hear, hear.] Until that question is answered I do not feel competent to give any answer to my noble friend. [Hear.] We must first ascertain whether the United States is at war with any power whatever. Let them retain the belligerent right if war continues, but if there is no war, and if peace exists, let them abandon that [Page 369] right. [Hear, hear.] When I obtain an answer on this point from the government of the United States I shall probably think it necessary to apply again to the law officers of the Crown, but meanwhile I do not know that I can give any better answer than has been given by the Spanish government to the United States. The Spanish government was asked by the United States to cease to allow belligerent rights to the confederates, and their answer was that these belligerent rights were consequent upon the existing state of facts; that while war continued the powers of Europe generally had agreed to acknowledge the rights of both parties, but that when the war ceased those rights would cease of themselves, and that it was not necessary to give any further answer. This is my reply to my noble friend. I cannot give him any further answer for the present; but I rejoice sincerely at the termination of the war, so far as it has yet terminated, and I trust that the United States will soon obtain and will long enjoy the blessings of profound peace. [Hear, hear.]
Lord Houghton: Am I to understand that if by some act of the United States the war is declared to be at an end, the concession of belligerent rights to the so-called Confederate States will fall to the ground without any formal act of her Majesty’s government?
Earl Russell: All I can say is this, that when the case arises her Majesty’s government will take the opinion of the law officers of the Crown upon it. [Hear, hear.]
The subject then dropped.
House of Commons, Monday, May 15.
BELLIGERENT RIGHTS OF THE CONFEDERATE STATES.
Mr. White asked the first lord of the treasury whether the government had determined to withdraw its recognition of the belligerent rights of the so-called Confederate States of America?
Lord Palmerston, who was received with loud and general cheering, rose to answer the question. The noble lord carried his right arm in a sling, but otherwise looked remarkably well, and spoke with fully his usual animation and vigor. He said the course of transactions with regard to belligerent rights of the two parties has been this. The President of the United States issued a proclamation declaring a strict blockade of all the coasts and certain ports in the southern confederacy, in accordance, as he stated, with the law of nations. Now, a blockade is, according to the law of nations, a belligerent right, which can only accrue to a State which is at war. The fact of the President of the United States declaring a blockade in accordance with the law of nations gave him, according to that claim, all those rights which belong to a belligerent declaring a blockade—the right of capture, condemnation, and the right of search with regard to neutral vessels. The British government had but one of two courses to pursue—either to refuse to submit on the part of British vessels to those belligerent rights, on the ground, which might have been assumed, that there was no formal belligerent on the other side. That was not thought expedient, and therefore the only course to pursue was to acknowledge and submit to these belligerent rights. But that necessarily involved the acknowledgment that the other party was also a belligerent and entitled to the rights of a belligerent. [Hear, hear.] Whenever the government of the United States shall declare that it ceases to exercise with regard to neutrals those rights of search, capture, and condemnation which belong to belligerents, then the war, as far as neutrals are concerned, ceases, and there will be no acknowledgment of belligerents either on one side or the other. [Hear hear.]