Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session of the Thirty-ninth Congress
Mr. Adams to Mr. Seward
Sir: I have the honor to transmit copies of two notes of Lord Clarendon to me—one of the 17th, the other of the 18th—on the case of the Shenandoah, and of my reply to both on the 21st instant.
I see no good reason for continuing this correspondence on my part any further. It may be that you will deem it worth while to notice Lord Russell’s singular proposal of prospective legislation, the only point now apparently remaining open between the two governments. But that would scarcely seem likely to call for much explanation. In any event I hope to be able to restrict myself hereafter closely within the line of your instructions.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
Lord Clarendon to Mr. Adams
Sir: Her Majesty’s government are glad to find, by your letter of the 14th instant, that yon entertain no doubt that the promptness of the proceedings taken by them for the delivery up of the Shenandoah will give great satisfaction to the government of the United States.
With respect, however, to the disappointment which you express as to the manner in which the officers and crew of that vessel have been dealt with by her Majesty’s government, after having before them the voluminous papers with which you had furnished them, showing the character of the proceedings in which they were engaged, I must observe that there was nothing in the depositions and other papers of which you forwarded copies to this office, which, even if it had been capable of being substantiated in evidence in this country by deponents present at Liverpool before the crew of the Shenandoah were dispersed, would have tended to show that any capture had been made, or attempted, by Captain Waddell or his crew, after and with notice of the termination of the war. And I must further observe, that even if the case had been otherwise, those papers would not have been receivable as evidence before any magistrate; and that unless some material facts could have been deposed to by one or more witnesses present in this country, no magistrate could have kept any persons in custody upon any charge founded upon the statements in those papers.
I may add, that if any evidence in support of a charge of piracy had been forthcoming, it was quite as competent for any officer or agent of the government of the United States, or even for any private person, to have taken the necessary proceedings before a magistrate, as it was for her Majesty’s government to do so.
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
Charles Francis Adams, Esq., &c., &c., &c.
Lord Clarendon to Mr. Adams
Sir: I have now the honor to reply to the letter which you addressed to my predecessor on the 21st of October last respecting the proceedings of the late confederate steamer Shenandoah in the Pacific.
But I must, in the first instance, observe that in alluding to the answer given to you by Earl Russell on the 26th of September, 1864, respecting the conduct of the yacht Deerhound in rescuing from the sea a portion of the crew of the confederate steamer Alabama after her conflict with the United States cruiser Kearsarge, you omit to notice the principal passage in that answer, in which Lord Russell says, “In point of fact, however, her Majesty’s government have no lawful power to arrest and deliver up the persons in question.” [That is, the persons rescued from the sinking Alabama.] “They have been guilty of [Page 10] no offence against the laws of England, and they have committed no act which could bring them within the provisions of the treaty between Great Britain and the United States for the mutual surrender of offenders. And her Majesty’s government are therefore entirely without any legal means by which, even if they wished to do so, they could comply with your above-mentioned demand;” [namely, that those officers and men should now be delivered up to the government of the United States as escaped prisoners of war.] I may add, that if beyond the limits of British territory the commander of the Deerhound had improperly interfered to protect the officers and crew of the Alabama from the belligerent rights of the United States, it was for the commander of the Kearsarge to use the means in his power for the prevention on of such interference.
Once upon British soil, they were entitled to the protection of British laws, which they had in no respect violated; and her Majesty’s government could not deprive them of that protection because of the possibility (whether afterwards realized or not) that they might again leave the country and become engaged in further hostilities with the United States. The demand for their delivery up, which was made by you, was in fact identical with one which had at various times been made by foreign governments—for the extradition or expulsion of other foreign refugees, Poles, Hungarians, and others, and to which the invariable answer had been that the laws of this country did not empower the government to take any such measure. The answer to every such demand is found in the fundamental institutions of this country, in the law of habeas corpus and of trial by jury. If any evidence had been offered to her Majesty’s government identifying any of those persons as British subjects who had unlawfully enlisted in the service of the Confederate States, or who were guilty of any other violation of our laws, they would have been duly prosecuted; but no such evidence was brought forward.
The case of the Deerhound, therefore, furnishes, when examined, no materials for complaint against her Majesty’s government.
The next subject of complaint preferred by you is the conduct of her Majesty’s government in not preventing the vessel called the Sea King from leaving the shores of England to join another vessel called the Laurel, which was sent to meet her near Madeira with arms and ammunition.
You do not affirm that her Majesty’s government had any power or jurisdiction over either of these vessels when beyond the limits of British territory; but unless that assertion be made or implied the complaint falls to the ground; for while these vessels were in British waters no information was given (much less was any offered) to her Majesty’s government to show that any persons concerned in their outfit and equipment were guilty of, or were contemplating, any infringement of the foreign enlistment act, or of any other law in force in the United Kingdom, nor even that they were suspected of being engaged in any design whatever hostile or dangerous to the United States.
Your complaint, indeed, is against the general laws of this country. The executive power of the British Crown does not, nor does the executive power, as the act of Congress of 1818 is understood in this country, of the United States, extend to the detention and seizure of an unarmed merchant vessel, on the mere suspicion that she will, or may, be armed at sea in the waters of a foreign power.
Under the municipal law of this country, (which goes at least as far as any obligation which may be supposed to attach to it under the law of nations,) the British government is able to detain and prosecute natural-born British subjects who may enter into the war service of a foreign power without the license of the Crown, or who, within her Majesty’s dominions, may fit out, arm, or equip (or attempt to fit out, arm, or equip) vessels to cruise or commit hostilities against any states in amity with her Majesty. But the British laws do not and cannot effectually reach subjects of her Majesty who may go to a foreign state and there enter into any kind of naval or military service. You are well aware that many subjects of her Majesty have gone from this country to the United States, and have there, during the present war, entered into the military service of the United States and fought against the armies of the confederates, contrary to her Majesty’s proclamation.
Such occurrences as these the law of England (and, her Majesty’s government believe, the law of the United States) cannot prevent, and has very rarely the power to punish. It is obvious (as you, indeed, admit) that the law which prohibits the equipment of vessels destined to make war on states with which her Majesty is at peace, may, like most other human laws, be evaded. No human, means can in all cases effectually prevent individuals from purchasing or otherwise acquiring a vessel with the secret intention of arming her beyond the territorial limits of the country, and then cruising against a state with whom her Majesty is at peace, or from successfully executing that intention. It is distinctly denied that the government of any state is, upon any recognized principle of international law, responsible for such an event.
Feeling, as it would seem, that for the equipment and armament of the Shenandoah no original responsibility can reasonably be cast on her Majesty’s government, you represent, as the main substance of this part of your complaint, that this vessel, after she had been equipped and commissioned, was recognized by her Majesty’s government as a public ship of war of a lawful belligerent, and was admitted as such into British ports.
This is in truth nothing more than the often-repeated objection to the course adopted by her [Page 11] Majesty’s government in recognizing both parties in the late war as belligerents, (and if belligerents at all,) then as belligerents wherever they were found actually carrying on war, whether by sea or by land.
You are of course aware that the Sea King was transferred, when beyond the territory of her Majesty, to the agents of the Confederate States, and from them, (while still beyond her Majesty’s territory,) received a commission as a ship of war under the name of the Shenandoah. It was a necessary consequence of the principle of neutrality, and of the recognition of the state of war, (by virtue of which alone the blockade was enforced with so much severity against neutrals by the United States,) that the validity, for the purposes of the war, of such a commission should be recognized by the government of this country. The supplies given to this vessel, and the hospitality afforded to her in a British port during the continuance of the war, were merely the same which were always afforded to the vessels of war of the United States. To refuse them in such a case would have been not to vindicate, but to depart from, the neutrality declared by her Majesty. If the fact were, as you suggest, that the supplies so afforded had the effect of enabling the Shenandoah to continue hostilities after the Confederate States had ceased to be belligerents, it is obvious that such an occurrence might equally take place in any other case in which a ship of war of any belligerent nation, having taken in ordinary supplies at a neutral port, might continue hostilities after the restoration of peace, either through ignorance of that fact, or from any less excusable motive.
So far, then, as your objection to the enjoyment of belligerent rights by the Shenandoah in the ports of Great Britain is founded on the allegation of her original illegal equipment, I have already sufficiently pointed out that the circumstances of her equipment were not such as, in the eye of the English law, or, consequently, in the view of the English government, could be regarded as illegal. She was, therefore, as long as the war subsisted, naturally treated on the same footing as any other vessel of a recognized belligerent power.
But even had the case been otherwise, and had her equipment and origin been undoubtedly illegal, I should have experienced hardly less surprise at the claim put forward on behalf of the United States in the following sentence of your despatch: “In consenting to receive the vessel after the facts of its illegal origin and outfit had been satisfactorily established, I cannot resist the conviction that her Majesty’s government assumed a responsibility for all the damage which it has done.” If I needed (which in this case I do not,) to find an answer to a claim founded upon such principles, I should have to seek no further than the records of recent American law and the practice of modern American statesmen. In that chapter of American history which has lately become familiar in these discussions, relating to the transactions which arose out of the revolt of the South American republics, will be found a complete refutation, from American authorities, of the doctrine on which you now appear to insist. As you are well aware, numerous vessels of war were fitted and refitted, under the commission of the revolted states, in the ports of the United States to cruise against the commerce of Spain and Portugal. These vessels started on their original voyage manned and armed in the ports and by the subjects of the United States, and returned to the same ports over and over again after repeated cruises. Though the fact of the illegal origin and equipment of such vessels was established, not by vague surmise or ex parte statement, but in several instances by judicial proof adduced in suits instituted for the restoration of their prizes when brought within the neutral jurisdiction, the government of the United States does not appear ever to have taken any step for the purpose of excluding any of these vessels from the full and unrestricted enjoyment, within their own ports or elsewhere, of the same rights (with the single exception of the right to retain prizes brought in) which it accorded to any other ships of war of a belligerent power; nevertheless, so far from admitting that by such conduct, as you now contend, “they assumed a responsibility for all damage done” by such vessels, your government distinctly repudiated any such responsibility when urged upon them by arguments almost identical with those on which you now rely.
While admitting that several prosecutions have been instituted by her Majesty’s government against persons amenable to British law, who had been shown by probable evidence to have been guilty of violating the foreign enlistment act, (Captain Corbett, of the Sea King, to whom you refer as having never been brought to trial, is awaiting his trial at the present moment,) you make it, nevertheless, matter of complaint that no legal proceedings have been taken against any of the confederate agents in this country, under whose direction and management various operations, in abuse of her Majesty’s neutrality, are said to have been conducted. But no information, supported by evidence on which a prosecution could be judiciously instituted or successfully maintained, has ever been laid before her Majesty’s government for the purpose of showing that the laws of this country were in fact so violated by any of those persons.
You are well aware of the extent to which not only municipal but also international law permits either of two belligerents to avail themselves of the resources of a neutral country, by mercantile agencies, by loans of money, and by the purchase and shipment of every kind of munition of war, without giving to the other belligerent any cause of complaint against the country where such operations are carried on.
Full advantage has been taken of this state of international law by the United States themselves during the recent contest. If, in addition to operations of this nature, the confederate agents in this country superintended or directed other designs involving the violation of our [Page 12] laws, they were careful (as it might he expected they would be) to keep their participation in any such illegal acts as far as possible out of sight. The agency of Captain Bullock for the confederate government was indeed, to some extent, disclosed by parts of the evidence relating to ships which were the subject of actual or contemplated proceedings by her Majesty’s government, but not in such a manner nor to such an extent as to make it probable, in the judgment of her Majesty’s advisers, that, if proceedings had been instituted against him personally, they would have been attended with a successful result. You refer, indeed, to the recent transmission, under the orders of her Majesty’s government, of Captain Bullock’s letter to the commander of the Shenandoah, directing him to cease from the further prosecution of hostilities as proof that her Majesty’s government have, at least in one instance, considered themselves to be in possession of sufficient evidence of Captain Bullock’s authority to control or prevent such hostilities. But it is not clear that proof even of the extent and kind of authority assumed in that letter over the Shenandoah when at sea would have supplied the want of further evidence of any infringement alleged to have been committed by Captain Bullock of the laws of this country. Your surprise, however, on hearing of that circumstance, as well as the inference you draw from it, of the previous possession of evidence against Captain Bullock by her Majesty’s government, will, I hope, cease when you learn that this letter was transmitted by her Majesty’s government in compliance with the request of Mr. Mason (the known accredited agent in Europe of the Confederate States) made to Earl Russell in a letter dated the 20th of June last, after the conclusion of the war. Whatever might have been the extent of the previous knowledge or ignorance of her Majesty’s government with respect to the acts of Captain Bullock, they were entitled to believe, on Mr. Mason’s authority, that the letter sent by him for transmission would be effectual for its intended purpose; in which, being a purpose of humanity especially beneficial to the United States, her Majesty’s government felt they might safely endeavor so far to co-operate without any risk of being misunderstood by the United States government.
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 Lord Clarendon
My Lord: I have the honor to acknowledge the reception of two notes from your lordship—one of the 17th instant, the other of the 18th instant—both of them relating to the case of the vessel heretofore known as the Shenandoah.
The arguments presented in those notes appear to me, substantially, so much the same as have been urged in the correspondence I have heretofore had the honor to conduct with your predecessor, that I deem it unnecessary, on my own responsibility, further to enlarge upon the opposite views already submitted.
Regretting that the result has been to bring us no nearer to any agreement in our respective convictions, I shall content myself with transmitting copies of your lordship’s notes for the consideration of my government, and awaiting specific instructions.
I pray your lordship to accept, &c.
Right Honorable the Earl of Clarendon, &c., &c., &c.