Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the First Session Thirty-ninth Congress

Mr. Adams to Mr. Seward

No. 1042.]

Legation of the United States, London, September 7, 1865.

Sir: In connexion with my despatch No. 964, of the 25th of May last, I have now the honor to transmit a copy of a note I received from Lord Russell, dated the 30th of August, in reply to mine addressed to him so long ago as the 20th of May. I am now drawing up a form of reply which seems to be called for by the repetition of singular misconceptions in the historical narrative that require prompt rectification; but I shall not be able to get it ready in season for this steamer. As his lordship’s note seems to be intended to convey a distinct proposition for the consideration of the President, I send it forward at once.

I am very glad to perceive the conciliatory and friendly tone of his lordship. It was not quite so visible in the early days of my correspondence with him, when his prejudices were fresh. I have never considered him as actuated by unfriendly feelings, but for a considerable period he certainly acted as if he feared to be suspected of good will. It is pleasant to find the pressure has been taken off.

I have the honor to be, sir, your obedient servant,

CHARLES FRANCIS ADAMS.

Hon. William H. Seward, Secretary of State, Washington, D. C.

Lord Russell to Mr. Adams

FOREIGN OFFICE, August 30, 1865.

Sir: Having purposely delayed an answer to your letter of the 20th of May, I now resume our correspondence at a time when the civil war has entirely ceased—when the whole territory of the United States is subject to the government of the Union, and the United States have not an enemy in the world. I resume it, therefore, at a time such as was foreseen in your letter of the 23d of October, 1863, “favorable for a calm and candid examination, by either party, of the facts or principles involved in cases like the one in question,

I resume it also at a time when Mr. Seward has recovered from the injuries he received from an accident and the wounds inflicted by an assassin, and is therefore able to apply his remarkable powers of mind to the questions at issue. I take this opportunity of saying that no one rejoices more than myself at this happy recovery from injuries so serious.

In continuing, in this state of affairs, our correspondence, I must again express my satisfaction at finding that you do justice to the impartial intentions of her Majesty’s government. I must here repeat that you have never permitted yourself to doubt the favorable disposition of the Queen’s ministers to maintain amicable relations with the government of the United States, and you attribute the avoidance of the gravest of complications to the full conviction that her Majesty’s government has never been animated by any aggressive disposition towards the United States, but that, on the contrary, it has steadily endeavored to discountenance, and in ft measure, to check the injurious operations of many of her Majesty’s subects.

This decisive testimony from a person of your high character, who has now for four years held the confidential position of minister of the United States, accredited to her Majesty, and has hereby been enabled to judge of the intentions of her Majesty’s government through-Out this long and destructive contest, is most gratifying to her Majesty’s government. It is most satisfactory to know that you share in none of those suspicions and indorse none of those charges of an unfriendly and unfair disposition on the part of her Majesty’s government with which public writers and speakers have endeavored to poison the public mind in the United States, and to produce ill will and hatred between the two nations.

The question, then, as I understand it, is now reduced to these terms: Whether her Ma iesty’s government have judged rightly the state of a friendly nation disturbed by a formidable insurrection, and whether they have correctly applied the law of nations in respect to their duty toward that friendly nation.

In recapitulating your statements on the subject, you say, “that the injuries thus received by a country which has meanwhile sedulously endeavored to perform all its obligations, owing to the imperfection of the legal means at hand to prevent them, as well as the un-willingness to seek for more stringent powers, are of so grave a nature as in reason and juslice to constitute a valid claim for reparation and indemnification.”

Differing, as her Majesty’s government do, from your statement of the facts upon which the judgment of the two governments is to be ultimately formed, I lay down with confidence. the following proposition:

1. That the history of modern nations affords no example of an insurrection against a central government so widely extended, so immediate in its operation, so well and so long prepared, so soon and so completely furnished with the machinery of civil government; a national representation, generals and officers of high military reputation, armies fully equipped, and fortifications recently in the possession of the established government.

2. That intelligence reached her Majesty’s government in the spring of 1861 that seven combined States had declared in favor of this insurrection; that three more States, including the great and powerful State of Virginia, were preparing to join them; that these States commanded upwards of 3,000 miles of sea-coast; that they comprised more than 5,000,000 of people, exclusive of the negro slaves; that the president of the insurgent government had proclaimed his intention’ of issuing letters of marque and reprisal; that the President of the United, States, on the other hand, had proclaimed his intention to establish a blockade of all the ports of the southern States, and that in these circumstances the commander of her Majesty’s naval forces on the North American station earnestly solicited instructions for his guidance.

3. That in view of these extraordinary events, unexpected and undesired, her Majesty decided to proclaim her neutrality in this contest; to allow the belligerent blockade of more than 3,000 miles of coast, including, of course, the right of search, detention, and capture on the part of the United States, and, on the other hand, as in duty bound, to recognize in the so-called Confederate States the right of a belligerent power.

4. That her Majesty’s government put in force with fairness and impartiality the neutrality they had proclaimed.

5. That the foreign enlistment act which is intended in aid of the duties and rights of a neutral nation can only be applied when a ship is armed or fitted out, or begun to be armed oar fitted out; and even in that case only when proof can be obtained that the ship so armed or equipped, or begun to be armed or equipped, is intended for the service of a power at war with a friend or ally of her Majesty.

6. That in the instance of the Oreto, the case justifying the detention of the vessel was not complete; and in the case of the Alabama, the proof was declared to be complete only On the very morning when the owners of the Alabama, having by some means obtained information of what was intended, go away on a false pretence.

7. That the Oreto was begun to be built here, was afterwards detained and tried at Nassau, was acquitted, and was afterwards completed at Wilmington, (Mobile?) a port of the confederates.

8. That the iron-clad rains were detained, and afterwards seized at Birkenhead; that the so-called Canton, or Pampero, was prosecuted and convicted in Scotland; that the Victor, afterwards the Rappahannock, was forced to take refuge at Calais, in order to avoid seizure, and till the close of the war never appeared on the seas.

9. That it is not enough to say that the foreign enlistment act might have been amended and made more efficient unless it be shown that the amendments suggested would have been clearly efficient, and would have been consistent with the laws of a free country.

10. That nothing but the most extensive employment of spies, and informers, and the most arbitrary powers of detention and seizure on the most vague and slight suspicions, could have prevented a British or American merchant, in combination with a confederate enemy of the United States, from sending an unarmed ship to distant neutral waters, from sending arms to the same waters, and from combining the ship and the arms in a hostile cruiser against the commerce of the United States.

11. That the Sbenandoah was despatched and armed in this manner.

12. That there was no reason or ground whatever to accuse her Majesty’s government of failure in the performance of their international obligations during the four years of civil war, and consequently no valid claim can be made for reparation and indemnification.

With respect to your allegation that the concession of belligerent rights to the confederates was “precipitate and unprecedented,” I answer both epithets by saying, first, that our declaration followed, and did not precede your own declaration of the intended blockade of six or seven considerable ports, and the declaration of an intention on the part of the confederates to issue letters of marque; and, secondly, that a sudden insurrection of such magnitude being unprecedented, our recognition of its existence was necessarily likewise unprecedented.

But let me refer for a short time both to the law laid down by your own courts, on this subject, and the state of facts as shown by official documents.

The judgment of the Supreme Court of the United States given in 1862 (Black’s Reports, Supreme Court, vol. 4, pp. 666—670,) lays down with equal sense and learning the following propositions:

“The right of prize and capture has its origin in the jus belli, and is governed and adjudged under the law of nations. To legitimate the capture of a neutral vessel, or property on the high seas, a war must exist defacto, and the neutral must have a knowledge or notice of the intention of one of the parties belligerent to use this mode of coercion against a port, city or territory in the possession of the other.

“The parties belligerent in a public war are independent nations; but it is not necessary to constitute war that both parties should be acknowledged as independent nations or sovereign States. A war may exist when one of the belligerents claims sovereign rights as against the other A civil war is never solemnly declared; it becomes such by its accidents—the number, power and organization of the persons who originate it and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory—have declared their independence—have cast off their allegiance—have organized armies—have commenced hostilities against the former sovereign—the world acknowledges them as belligerents and the contest as a war.

“A civil war,’ says Vattel, ‘breaks the bonds of society and government, or at least suspends their force and effect; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge.

“Those two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate bodies—two distinct societies—having no common superior to judge between them; they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms.’

“As a civil war is never publicly proclaimed eo nomine against insurgents, its actual existence is a fact in our domestic history which the court is bound to notice and to know. The true test of its existence, as found in the writings of the sages of the common law, may be thus primarily stated: when the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the courts of justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the government were foreign enemies invading the land.

“By the Constitution Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution.

“The Constitution confers on the President the whole executive power. He is bound to take care that the laws be faithfully executed. He is commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare war, either against a foreign nation or a domestic State. But, by the acts of Congress of the 28th of February, 1795, and 3d of March, 1807, he is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.

“If a war be made by invasion of a foreign nation, the President is not only authorized, but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge, without waiting for any special legislative authority; and whether the hostile party be a foreign invasion or States organized in rebellion, it is none the less a war, although the declaration of it be unilateral. Lord Sto well (1 Dodson, 247) observes: ‘It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations.’

“A declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other.

“This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local organized insurrections. However long may have been its previous conception, it nevertheless sprang forth suddenly from the parent brain, a Minerva, in the full panoply of war.

“The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name, and no name given to it by him or them could change the fact.

“It is not the less a civil war with belligerent parties in hostile array because it may be called an insurrection by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or state be acknowledged in order to constitute it a party belligerent in a war, according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent partie. In the cases of the Santissima Trinidad (7 Wheaton, 337) this court says: The government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed her determination to remain neutral between the parties. Each party is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sovereign right of war.’

“The law of nations is also called the law of nature. It is founded on the common consent, as well as the common sense, of the world. It contains no such anomalous doctrine as that which this court are now, for the first time, desired to pronounce, to wit, that insurgents who have risen in rebellion against their sovereign, expelled her courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies, because they are traitors; and a war levied on the government by traitors, in order to dismember and destroy it, is not a war, because it is an insurrection !

“Whether the President, in fulfilling his duties as commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions, as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this court must be governed by the decisions and acts of the political department of the government to which this power was intrusted. He must determine what degree of force the crisis demands. The proclamation of btockade is itself official and conclusive evidence to the court that a state of war existed, which demanded and authorized a recourse to such a measure under the circumstances peculiar to the case.”

The course of her Majesty’s government follows the course of events in America.

It appears by the Times of the 3d of May, 1861, that I stated in the House of Commons,. the preceding day, (May 2,) “Her Majesty’s government.heard the other day that the Confederate States have issued letters of marque, and to-day we have heard that it is intended that there shall be a blockade of all the ports of the southern States.”

On the 6th of May I stated, in the House of Commons, the intention of the government, formed after due deliberation, to recognize the southern States as belligerents.

On the 10th of May I received a despatch from Lord Lyons making the following announcement:

“I have the honor to enclose copies of a proclamation of the president of the southern confederacy, inviting application of letters-of-marque, and also a proclamation of the President of the United States, declaring that southern privateers will be treated as pirates, and announcing a blockade of the southern ports.”

Thereupon, the intention of her Majesty’s government, previously announced, was carried into effect, and the proclamation of the 13th of May, 1861, was issued.

It is very remarkable that an English schooner, the Tropic Queen, was captured for a breach of blockade, consisting in the act of landing her cargo on the 13th and 14th of may, 1861.

The offence in this case was committed on the very day that the Queen acknowledged the existence of civil war. The court, in giving judgment, referred to the notorious facts of the secession of the southern States, and proceeded thus:

“These facts as set forth by the President, with the assertion of the rights of blockade, amount to a declaration that civil war exists. Blockade itself is a belligerent right, and can only legally have place in state of war, &c.”

What you contend for, I imagine, both as to the commencement of the war and as to its close, is, that the United States of America had a full claim to exercise all the rights of belligerents, but that Great Britain had no just claims to exercise any of the rights of neutrals.

This position, however, Great Britain never can admit.

Recognitions by the United States of belligerent rights belonging to insurgents have been frequent; Buenos Ayres, Colombia, Mexico, have been acknowledged by the United States as having belligerent rights against Spain; Brazil and Artigas as against Portugal; Texas against Mexico. But in no case have these insurgent forces sprung up at once, fully armed, to the amount of five millions of men. With respect to the Oreto and the Alabama, I have only again to repeat that, up to the time when the Oreto left these shores, and up to the day when the Alabama escaped on a false pretence, the law officers of the Crown had not, by any legal opinion, enabled her Majesty’s government to give any order for the detention of these vessels.

I entirely concur with you that there was no use in giving orders on the 31st of July for detaining a vessel which had made its escape on the 29th. But up to the 29th the law officers had not thought the evidence sufficient to justify detention; and I cannot, by any means, admit, what you seem to insinuate, that the law officers were deficient either in knowledge of the law, or in willingness to apply it.

Her Majesty’s government fully accept the responsibility of these opinions.

And it will be observed that the law officers, in addition to the reports of the custom-house officers, were in possession of all the information which it was in your power to furnish.

You allude to the case of the American Revolution, and the conduct of France in not recognizing the belligerent rights of the insurgents then in rebellion against the British Crown.

Let us extend our view somewhat wider. There have been in the period beginning in 1765, and ending in 1865, three cases of a somewhat similar kind. The first is that of the American Revolution; the second is that of the revolt of the South American republics; the third is that of the civil war, which from 1861 to 1865 desolated the United States of North America.

In the first case the court of France sought only to injure Great Britain. In this spirit, in 1776, before the declaration of independence, the French government put itself in connexion with Arthur Lee, through Baron de Beaumarchais, and with Benjamin Franklin, through Dubours, offering to the United States the supplies they needed. When, however, thè news of Burgoyne’s surrender reached France, the French government took amore decided course. In February, 1778, they signed two treaties, one of commerce and one of alliance, with the United States of America. Nor were the motives of these acts on the part of Louis the Sixteenth by any means concealed. Monsieur Gerard was ordered to declare, on the King’s part, to Arthur Lee and Silas Deane, the commissioners of the United States, “that his Majesty was fixed in the determination not only to acknowledge but to support our independence by every means in his power; that in doing this he might probably soon be engaged in a war, with all the expenses, risks, and damages usually attending it, yet he should not expect any compensation from us on that account, nor pretend that he acted wholly for our sakes, since, besides his real good will, it was manifestly the interest of France that the power of England should be diminished by our separation from it.”

I am not arguing whether this conduct was justifiable. I am only showing that France, in the American war, took a part hostile to Great Britain in order to promote her own interests. In the same spirit, in order to promote the interests of France and injure those of Great Britain, the government of Louis XVI, two years after the date of the American decla ration of independence, made an alliance, offensive and defensive, with the United States.

Such conduct, however it may he excused, or even admired, in Europe or in America, could not form a precedent for Great Britain in the late civil war. Her Majesty’s government had no wish to favor the separation of the southern States, with a view to injure the power or check the progress of the United States. It has been the wish of her Majesty’s government, who had received no injury from either the northern or the southern States, and was living in amity with both, when hostilities, of the most violent character, commenced between them, to preserve an honest and impartial neutrality.

The next case to which we have looked has been in the insurrection of the South American republics against Spain, and of the empire of Brazil against Portugal. This insurrection began slowly and partially at Buenos Ayres on the 14th of May, 1810, by the formation of a junta and the deposition of the viceroy; the government, however being earned on in the name of the King of Spain until January, 1813, when a provisional government was established On the 9th of July, 1816, the provinces of the Rio de la Plata issued a declaration of independence, and on the 20th of April, 1819, a constitution was published by the Congress.

In 1811 the insurrection commenced in Paraguay, the Spanish governor was deposed, and a government established under the direction of Doctor Francia. On the 12th of October, 1813, a constitution was proclaimed.

In 1811 civil war commenced in Chili, but the declaration of independence was not issued until the 12th of February, 1818, and the war continued until 1820.

The revolution in Peru commenced in 1821, a declaration of independence being issued on the 15th of July, 1821, and the war continuing until 1824.

On the 15th of September, 1821, Guatemala declared her independence; which, however, was not finally established until the 1st of July, 1823.

The revolution in Colombia (including Venezuela, Equador, and New Granada) commenced April 19, 3810, at Caraccas. On the 5th of July, 1811, the congress declared Colombia an independent state, but the war with Spain continued until November, 1823.

In 1815 the President of the United States allowed belligerent rights to the South American states, and proclaimed a strict neutrality. This proclamation was recognized by the Supreme Court, and other tribunals of the United States, as the guide for their decisions.

It is here that her Majesty’s government have looked for precedents. The United States had been, from 1793 to 1815, with the exception of two years, neutrals amid the great, wars of Europe. Their wisest statesmen and their most learned judges had studied the laws of nations profoundly with a view to extract from that law the rules for their own conduct and the elements of their judgment on the conduct of others. In 1794 the United States government had admitted the principle that if, after prohibiting the equipment and armament of cruisers in American ports, they abstained from using the means in their power to restore prizes captured and brought into United States ports by cruisers subsequently equipped or armed in these ports in violation of the prohibition, they were bound to give compensation for such prizes; but they appear to have limited their admission or liability to that class of cases. When, therefore, the continent upon which they have erected a free and powerful state was convulsed with civil war, the President, Secretary of State, Chief Justices and other judges of the United States doubtless considered maturely the course they were bound to pursue

You seem to have supposed that my meaning in reference to Portugal was, that the United States in that case had been in the wrong, and therefore if Great Britain had been wrong in the present instance, the United States would not reproach us. But no such argument entered into my conception. My argument was this: Portugal, during the war of South American independence, complained of captures, by American vessels-of-war, built in the United States, which had not been detained and seized and condemned in the ports of the united States.

The answer of Mr. Adams to these complaints was, as I conceived, valid and conclusive. He said, in effect, “Had you been able to presecute and convict in the United States our courts were open to you, and every facility was afforded you. But you cannot make the government of the United States responsible for the acts of men on the high seas, over whom the United States exercise no jurisdiction.”

Having repeated the very terms used by Mr. Adams, I say, “To this most just principle, which was again referred to by Mr. Secretary Clayton, and maintained against the government of Portugal to this hour, the government of the United States must be held still to adhere.” In fact, there was no motive to bias their judgment on this bloody controversy. Spain and Portugal, weakened by bad government, and exhausted by recent struggles for existence, could inspire no apprehension and offer no temptation to the rising and vigorous power of the great western republic. The conduct of the United States, therefore, is eminently deserving of our study, and, I may add, of our respect.

But as you have commented at some length on the treatment of Portugal by the United States during the war of South American independence, I will enter more fully than I had before done into that question. The correspondence to which I refer began in December, 1816, and closed with a letter of the Portuguese minister, in November, 1850. It cannot be pretended that the reclamations of a friendly power, extending over thirty-four years, did not receive the gravest attention of the American government.

In his first letter the Portuguese envoy at Washington complains that Mr. Taylor, of Baltimore, an American citizen, had directed Captain Fish, of the Romp, an American ship, to cruise as a privateer under the insurgent colors of Buenos Ayres against the subjects of Portugal. He adds: The 18th of last month (November) the frigate Clifton, Captain Davy, armed with thirty-two guns of various calibres, and a crew of two hundred men, sailed from Baltimore for Buenos Ayres. This ship anchored below that port, where it has remained for about a fortnight or more, waiting for the American ship Independence of the South, armed with sixteen guns, and for the ships Romp, Tachahoe, Montezuma, and Spanker, and two others, newly constructed, which were fitting with great activity, and which had not yet got names. All were to sail together, to cruise in the eastern and western seas of South Ainerica under the insurgent colors of Buenos Ayres. No doubt can be entertained of their intentions being the same as those of Captain Fish, and that they will act hostilely against the Portuguese ships.”

The Portuguese envoy, Joseph Correa de Serra, prays for the amendment of the law of the United States, with a view to rende it more efficient in such cases. A law having been passed by Congress for this purpose, the Portuguese envoy, in May, 1817, requests that the President will desire the United States officers in the outposts to use greater vigilance.

In March, 1818, he complains that three Portuguese ships have been captured by privateers, fitted in the United States, manned by American crews, and commanded by American captains, though under insurgent colors.

In October of the same year the Portuguese envoy complains that a Portuguese prize is fitting in the Patuxent to cruise against Portuguese commerce.

In November of the same year the Portuguese minister states to Mr. Adams that, obliged by his duty to inquire into the nature of the armed ships that had of late insulted the flag of his sovereign, and committed incalculable depredations on the property of his subjects, he had found, to his sorrow, multiplied proofs that many of them were owned by citizens of the United States, and had been fitted in the ports of the Union. He goes on to complain of the difficulties in the way of prosecutions, but compliments the President on his honorable earnestness.

In December of the same year the Portuguese minister complains of the armed vessel Irresistible, which “had been committing depredations and unwarrantable outrages on the coast of Brazil.” He says it is proved by depositions that John Daniels, the commander of the ship, is an American, and all the crew are Americans. He prays that if the ship should come into an American port, means may be taken to bring the said captain and crew within reach of the laws made to punish such scandalous proceedings.

In March, 1819, Monsieur Correa de Serra states, as minister of his sovereign, that Artigas, whose flag is. frequently waving in the port of Baltimore, and which is carried by Portuguese prizes in the ports of the Union, has been expelled far from the countries which could afford him the power of navigating, and has not a foot length of sea-shore in South America whese he can show himself. He prays that the Artigan flag may be declared illegal.

In November, 1819, after expressing his gratitude for the proceedings of the Executive, the same minister complains that the evil is rather increasing. He is in possession of a fist of fifty Portuguese ships, almost all richly laden, some of them East Indiamen, which had been captured during a period of profound peace.” One city alone, on the coast of the United States, had twenty-six armed ships which preyed on Portuguese commerce, “and a week ago three armed ships of this kind were in that port waiting for a favorable occasion for sailing on a cruise.” In June, 1820, the Portuguese minister complains that a Portuguese prize had been sold by auction in Baltimore to Captain Chase, (a notorious privateersman, ) and was to be immediately fitted out as a privateer to cruise against the Portuguese Indiamen.

In July of the same year the Portuguese minister sends a list of “ the names and value of nineteen Portuguese ships, and their cargoes, taken by private armed ships fitted in ports of the Union by citizens of those States.” His sovereign wishes the affair to be treated with that candor and conciliating, dignified spirit which becomes two powers who feel a mutual esteem and have a proper sense of their moral integrity. “In this spirit I have the honor to proprose to this government to appoint commissioners on their side, with full powers to confer and agree with his Majesty’s ministers on what reason and justice demand.”

In December, 1820, the Chevalier Amado Grehon transmitted to Mr. Adams a copy of twelve claims, with the value of the ships, desiring him to add them to the list furnished by the Chevalier Correa de Serra.

In April, 1822, the same minister repeats the proposal made in July, 1820, “of having recourse to commissaries chosen by both governments for the purpose of arranging the indemnities justly due to Portuguese citizens for the damage which they have sustained by reason of piracies supported by the capital and the means of citizens of the United States, an essential condition which in this way repairing the past secures also the future.”

On the 25th of May, 1850, the charge d’affaires of Portugal, writing to the Secretary of State of the United States, declares: “The undersigned is authorized to come to an understanding with the new Secretary of State upon the subjects, and to submit the voluminous documents and papers in his possession to the joint examination and decision of the commissioners or arbitrators appointed by the American government on the one part, and the undersigned, on behalf of her Majesty’s government, on the other,” &c.

Having thus related the complaints of the Portuguese government during the years which elapsed from 1816 to 1822, and from 1822 to 1850, I will now give, from the organs of the United States, the answers which that government gave to these solemn and reiterated con-plaintb.

In March, 1817, the Secretary of State transmitted to the Portuguese minister at Washington an act of Congress, passed on the 3d of that month, to preserve more effectually the neutral relations of the United States.

On the 14th of March, 1818, in answer to a letter complaining of the capture of three Portuguese ships by privateers, Mr. Adams says: “The government of the United States having used all the means in its power to prevent the fitting out and arming of vessels in these ports to cruise against any nation with whom they are at peace and having faithfully carried into execution the laws enacted to preserve inviolate the neutral and pacific obligations of this Union, cannot consider itself bound to indemnify individual foreigners for losses by captures over which the United States have neither control nor jurisdiction. For such events no nation can in principle, nor does in practice, hold itself responsible. A decisive reason for this, if there were no other, is the inability to provide a tribunal before which the facts can be proved. The documents to which you refer must of course be ex parte statements, which, in Portugal or in Brazil, as well as in this country,” could only serve as a foundation for actions in damages, or for the prosecution and trial of the persons supposed to have committed the depredations and outrages alleged in them. Should the parties come within the jurisdiction of the United States, there are courts of admiralty competent to ascertain the facts upon litigation between them, to punish the outrages which may be duly proved, and to restore the property to its rightful owners, should it also be brought within our jurisdiction, and found, upon judicial inquiry, to have been taken in the manner represented by your letter. By the universal law of nations the obligations of the American government extend no further.”

The Secretary of State, in subsequent letters, promises to prosecute in the United States courts persons chargeable with “a violation of the laws of the United States in fitting out and arming a vessel within the United States for the purpose of cruising against the subjects of the Queen of Portugal.”

To the proposal to appoint commissioners, made in July, 1820, the United States Secretary of State, on the 30th of September of the same year, replies as follows:

“The proposal contained in your note of the 16th of July last has been considered by the President of the United States, with all the deliberation due to the friendly relations subsisting between the United States and Portugal, and with the disposition to manifest the undeviating principle of justice by which this government is animated in its intercourse with all foreign governments, and particularly with yours. I am directed by him to inform you that the appointment of commissioners to confer and agree with the ministers of his. most faithful Majesty upon the subject to which your letter relates would not be consistent either with the Constitution of the United States, nor with any practice usual among civilized nations,”

He proceeds to say:

“If any Portuguese subject has suffered wrong by the act of any citizen of the United States within their jurisdiction, it is before those tribunals that the remedy is to be sought and obtained. For any acts of citizens of the United States, committed out of their jurisdiction and beyond their control, the government of the United States is not responsible. To the war in South America, to which Portugal has for several years been a party, the duty and the policy of the United States has been to observe a perfect and impartial neutrality.” The same reply is again given to Chevalier Armado Grehorn, in a letter dated the 30th of April, 1822:

“I am at the same time directed to state that the propositions of the Chevalier Correa de Serra, in his note of the 16th of July, 1820, for the appointment of commissaries chosen by both governments, to arrange indemnities claimed by Portuguese citizens for damages stated by them to have been sustained by reason of piracies supported by the capital and means of citizens of the United States, cannot be acceded to. It is a principle well known and well understood, that no nation is responsible to another for the acts of its citizens, committed without its jurisdiction and out of the reach of its control.”

The policy of the United States is further explained in a despatch of Mr. Secretary Adams to Mr. Dearborn, dated the 25th of June, 1822. It is there set forth that in the critical state of the relations of the two countries, it is necessary to employ the agency of a person fully qualified to represent the interests of the United States. It is affirmed that whenever Portuguese captured vessels have been brought within the jurisdiction of the United States, decrees of restitution have been pronounced.

In reference, however, to the lists of captures and the demand of a joint commission to determine and assess the damages to be paid by the United States, the former refusal was thus repeated: “As there was no precedent for the appointment of such a commission, under such circumstances, and as not a single capture had been alleged for which the United States were justly responsible, this proposal was of course denied, and nothing further was heard upon the subject until the 1st of April last, when a note was received from the present charge d’affaires of Portugal, leading to a correspondence, copies of which are now furnished you”

The correspondence seems not to have been resumed till 3850, when, as has been shown, the demand for a commission was repeated.

The Secretary of State of the United States gave this summary and final answer, dated May 30, 1850:

“The undersigned is surprised at the reappearance of these obsolete reclamations, accompanied by the renewal of the ancient proposition to appoint a joint commission to determine and assess damages, a proposition which was rejected at the time upon substantial grounds, and without the minister’s assurance to that effect, the undersigned would not have supposed is credible that Portugal seriously cherished any intention to revive them. In reply, therefore, to the note which the minister of her most faithful Majesty has presented in the name of his government, the undersigned must now, by the President’s order, inform him that he declines re-opening the proferred discussion.”

This despatch is signed “John M. Clayton.”

A long and able despatch of the Portuguese minister at Washington, recapitulating all the grievances of Portugal, dated November 7, 1850, does not appear to have received an answer.

The practice of the United States courts during the war of the South American colonies against Spain and Portugal seems to have been confined to the restitution of prizes actually brought into the ports of the United States. The doctrine of the courts of justice upon the subject was thus laid down by Chief Justice Story, in pronouncing the decision of the Supreme Court in the case of the Amisted de Eues, (5 Wheaton, p. 388. ) Speaking of the case of damages, he says: “When called upon by either of the belligerents to act in such cases, all that justice seems to require is that the neutral nation shall fairly execute its own laws and give no asylum to the property unjustly captured. It is bound, therefore, to restore the property, if found within its ports, but beyond this it is not bound to interpose between the belligerents,”

If, indeed, it were otherwise, there would be no end to the difficulties and embarrassments of neutral prize tribunals. They would be compelled to decide in every variety of shape upon various trespasses, in rem and in personam, between belligerents, without possessing adequate means of ascertaining the real facts, or of compelling the attendance of foreign witnesses, and thus they would draw within their jurisdiction almost every incident of prize. Such a course of things would necessarily create irritation and animosities, and very soon embroil neutral nations in all the controversies and hostilities of the conflicting parties.

Considerations of public policy come, therefore, in aid of what we consider the law of nations on this subject; and we may add that Congress, in its legislation, has never passed the limit that is here marked out.

^* To the same effect is the doctrine laid down by the Supreme Court in the case of the brig Alerta. “A neutral nation may, if so disposed, without a breach of her neutral character, grant permission to both belligerents to equip their vessels-of-war within her territory. But without such a permission the subjects of such belligerent powers have no right to equip vessels-of-war, or to increase or augment their force, either with armst or with men, within the territory of such neutral nation. Such unauthorized acts violate her sovereignty and her rights as a neutral. All captures made by means of such equipment are illegal in relation to such nation, and it is competent to’ her courts to punish the offenders, and in case the prizes taken by her are brought infra praesidia, to order them to be restored.”

In comparing the course pursued by the government and Congress of the United States in the case of the South American civil war, with that pursued by her Majesty’s government in the case of the North American civil war, the following differences are perceptible: The number of vessels built and fitted out in American ports, which successfully evaded the provisions of the laws made to restrain them, and proceeded to cruise against Portuguese commerce, was very great; those which escaped the execution of the laws of Great Britain were very few. In the former case these illegal cruisers must have been thirty or forty; in the lat ter, three or four. In the case of the South American civil war the cruisers in question were generally commanded by citizens of the United States and navigated by crews of the neutral nation; in the case of the North American civil war, no English captain appears to have commanded a cruiser, and the crews were generally, though not altogether, from the States in insurrection.

But there is one essential point on which the United States and Great Britain appear en tirely to agree. The United Stages, when neutral, refused to be responsible for captures at sea not brought within their jurisdiction, or to listen to a proposal to appoint a commission to assess damages; the government of the United Kingdom have taken a similar course. It is true that in applying the principle there has been a divergency of practice. The United States admitted their prizes to their harbors, but restored them, if practicable, when called upon by the decrees of courts of law, to their owners. The government of Great Britain refused admission altogether to such prizes. The principle is the same, and it is hardly worth while to dispute which course was most inconvenient to the insurgent cruisers. It appears to me, I confess, that the course pursued by her Majesty’s government tended more effectually to discourage insurgent cruisers than that pursued by the United States.

But as to the principle involved, let me ask you, supposing a merchant or passenger vessel belonging to the United States were to go to the coast of Madagascar, and were there to meet a ship from Boston with cannon and muskets, and the merchant ship, being then armed, were to take part against Brazil in the war between Brazil and Paraguay; let me ask, I say, whether your government would think themselves bound to afford reparation to Brazil fior all the captures made by that ship ? Yet, such is the case of the Shenandoah.

It seems to her Majesty’s government that, if the liability of neutral nations were stretched thus far, this pretension, new to the law of nations, would be most burdensome, and indeed most dangerous.

A maritime nation, whose people occupy themselves in constructing ships, and cannon, and arms, might be made responsible for the whole damages of a war in which that nation had taken no part.

I am thankful, therefore, to Mr. Adams for having, in 1818, 1820, and 1822, shielded maritime powers by his conclusive argument from such alarming liabilities.

You say, indeed, that the government of the United States altered the law at the urgent request of the Portuguese minister. But you forget that the law thus altered was the law of 1794, and that the law of 1818, then adopted, was, in fact, so far as it was considered applicable to the circumstances and institutions of this country, the model of our foreign enlistment act of 1819.

Surely, then, it is not enough to say that your government, at the request of Portugal, induced Congress to provide a new and more, stringent law for the purpose of preventing depredations, if Great Britain has already such a law. Had the law of the United States of 1818 not been already, in its main provisions, adopted by our legislature, you might reasona bly have asked us to make a new law; but, surely, we are not bound to go on making new laws ad infinitum, because new occasions arise.

The fact is, this question of a new law was frequently discussed; but the conclusion arrived at was, that unless the existing law, after a sufficient trial, should be proved to be practically inadequate, the object in view would not be promoted by any attempt at new legislation.

The existing law has, in fact, not proved inadequate, when circumstances of strong suspicion have been so far established as to justify the government in ordering the detention of the suspected vessels; and it is by no means certain that any possible alteration of the law would enable more to be done, in the way of prevention, than this. That power was exercised in the case of the rams—in the Mersey, and of the Canton, or Pampero, in the Clyde; and in neither case has the power so exercised been censured or revoked, either in a court of law or by any vote of Parliament.

If it be said, as some persons of high authority in Parliament have said, that the executive government of the United Kingdom exercised in their cases an illegal power, my answer is, that whatever force such an argument might have in a court of law, or in Parliament, it can have none in the mouth of a Secretary of State of the united States; for, whether exercised legally or illegally, the: power was equally effective in protecting the commerce and the harbors of the United States against ships built and equipped in British ports.

With respect to orders to refuse entrance into our ports to all ships partly fitted up in the United Kingdom for the service of the confederates, there was, extreme difficulty in giving any such orders.

During the South American civill war, it was fosund practicable to bring to New York, or Boston, witnesses to.prove that a South American cruiser bad been built and armed in Baltimore. But to carry witnesses from Liverpool to Nassau, or Jamaica, to piove the building of the Alabama at Birkenheadl, would have been a fruitless effort

To produce copy of a conviction of the Alabama was impossible, as she had escaped conviction by flight; to carry witnesses to the Gape of Good Hope, to Melbourne and elsewhere, for the purpose of showing that her owners had violated the foreign enlistment act, was equally out of the question. No less would it have been to say to our governors, uYou may admit the Alabama; you may admit the Stonewall; but you must not admit the Florida.”

In your letter of the 23d of October, 1863, you were pleased to say that the government. of the United States is ready to agree to any form of arbitration. Her Majesty’s government have thus been led to consider what question could be put to any sovereign or state to whom this very great power should be assigned.

It appears to her Majesty’s government that there are but two questions by which the claim of compensation could be tested; the one is, have the British government acted with due diligence, or, in other words, in good faith and honesty, in the maintenance of the neutrality they proclaimed ? The other is, have the law officers of the Crown properly understood the foreign enlistment act, when they declined, in June, 1862, to advise the detention and seizure of the Alabama, and on other occasions when they were asked to detain other ships, building or fitting in British ports ?

It appears to her Majesty’s government that neither of these questions could be put to a foreign government with an regard to the dignity and character of the British Crown and the British nation. Her Majesty’s government are the sole guardians of their own honor. They cannot admit that they have acted with bad faith in maintaining the neutrality they professed. The law officers of the Crown must be held to be better interpreters of a British statute than any foreign government can be presumed to be. Her Majesty’s government must, therefore, decline either to make reparation and compensation for the captures made by the Alabama, or to refer the question to any foreign state. Her Majesty’s government conceive that if they were to act otherwise, they would endanger the position of neutrals in all future wars.

Her Majesty’s government, however, are ready to consent to the appointment of a commission, to which shall be referred all claims arising during the late civil war, which the two powers shall agree to refer to the commissioners.

I cannot conclude without taking this opportunity to ask you to join with her Majesty’s government, in rejoicing that the war has ended without any rupture between two nations which ought to be connected by the closest bonds of amity.

The government of the United States have carried on to a successful issue, with great fortitude and perseverance, a civil war of unequalled magnitude. In the course of this war. they have resolved to abolish slavery. The British nation have always entertained, and still entertain the deepest abhorrence of laws by which men of one color were made slaves of men of another color.

The efforts by which the United States government and Congress have shaken off slavery have, therefore, the warmest sympathies of the people of these kingdoms.

The same sympathies will accompany the President and Congress of the United States, in endeavoring to reorganize the southern States on the basis of equal freedom.

Nor is there any question in dispute which seems likely to disturb the friendship of two nations which—the one in Europe, and the other in America—are distinguished for their love of liberty. Let our two nations, therefore, instead of captious discussions, respect the honor, and believe in the friendly intentions, of each other. In this manner we may preserve unbroken the ties of peace, and exercise a beneficial influence on. the future destinies of the nations of the world.

I have the honor to be, with the highest consideration,, sir,, y our most obedient, humble-servant.

RUSSELL.

Charles F. Adams, Esq., &c.

1. Curtis’s Report, vol. III, p. 382.