I perceive that Mr. Moran has kept you well informed of the progress of
opinion in regard to the expediency of reopening the chief question at
issue between the two countries, so far as it may be gathered from the
expression of the press. The significant intimation given by Lord Derby
at the Guildhall dinner, followed by the semi-official leader in the
Times of the 17th instant, a copy of which has been transmitted to you,
seem to leave little doubt that some change is contemplated of the past
policy of the government on this subject. The great difficulty,
probably, is in devising some practicable mode of shaping it which will
not too seriously wound the pride of the nation. In the only
conversation which I have had with Lord Stanley he asked me, with
reserve as to our official character in making the inquiry, if I knew
whether my government had any plan in view. To which I replied that I
had no information extending beyond the two already agitated, which had
been arbitration or else the establishment of a commission embracing the
consideration of all claims without exception. I thought that we should
have accepted either of these. Here the matter dropped. Considering the
nature of the later development, it is no more than reasonable to
presume that it is this point more than the general principle which is
now occupying the attention of the cabinet. Hence, I suppose that there
will not be much more delay in reaching a result and communicating it in
the form of an official reply to your despatch to me of the 27th of
August. Knowing your anxiety to obtain this reply, I shall seize the
earliest opportunity after reception to transmit it to the
department.
Hon. William H. Seward, Secretary of State, Washington, D. C.
[Untitled]
[From the
London Times, November 17,
1866.]
An impression has of late prevailed that a royal commission is about
to be appointed with a view to the settlement of the Alabama claims.
Probably Lord Derby’s conciliatory speech at the Mansion house may
have contributed to give currency to the rumor, which is not
destitute of a certain foundation in fact. We are enabled, however,
to state that her Majesty’s government have no present intention of
referring these particular claims to a royal commission—a course
which, if adopted at all, ought to have been adopted in the first
instance. What is really in contemplation is to empower such a
commission to inquire generally into the operation of our own
neutrality laws, and to report upon the possibility of amending’
them, so as to bring them into more complete conformity with our
international obligations.
[Page 26]
We have reason to believe that this decision, which was announced at
the end of last session, and differs little in principle from the
alternative since advocated in our own columns, will shortly he
carried into effect, and that Lord Cranworth will probably be the
chairman of the proposed commission. “We need hardly add that an
inquiry thus limited in no degree precludes or prejudices any future
step that may be taken for the adjustment of the Alabama claims,
which are still under the consideration of the government, and must
be entertained upon their own merits.
This mode of dealing with two questions independent, indeed, of each
other, but closely connected in their practical bearings as well as
in the public mind, has, doubtless, some advantages, though it is
also open to some objections. To reopen the Alabama case after
having obtained a report of a commission on the efficiency or
non-efficiency of our neutrality laws is one thing; to reopen it in
deference to representations from the United States government, and
without awaiting that report, is another. If the grounds upon which
Lord Russell declined arbitration were conclusive last year, they
are conclusive now, for there has been no change since in the facts,
and no fresh light has been thrown upon the law. At the same time,
we are far from blaming Lord Stanley for reconsidering the whole
matter upon his own judgment and responsibility. We have not
concealed our doubts whether Lord Russell’s statement of it, though
very convincing from one point of view, was not tacitly founded on a
false assumption, that assumption being that our international duty
and liability are measured by the municipal law of this country. It
cannot be considered otherwise than a misfortune that Sir Roundell
Palmer, then attorney general, should have so early committed his
great authority to this view. It is not, to the best of our belief,
in accordance with the better opinion among lawyers, and, even if it
were, it would be manifestly contrary to the dictates of natural
reason and equity. To hold that a belligerent can demand of a
neutral state no more than a due execution of the neutral’s own laws
is to hold that neutrals are the sole judges of their own
obligations. The neutral state might have no law applicable to the
subject at all, or a law authorizing piracy, and yet, upon this
supposition, there would be no right of redress. Now, although
international law is a very indefinite thing, consisting of little
more than usages and duties, sanctioned with more or less uniformity
by occasional conventions, it is not so wholly illusory as this
conception of it would imply. A fundamental distinction has always
been recognized between the sale of contraband of war and the
equipment of armed vessels within neutral territory, and this
distinction would have no meaning if both would be equally innocent
but for the special prohibition of the latter by municipal law. In
contending, therefore, that we could not accept arbitration because
it would put in issue the justice of the construction of our own
foreign enlistment act by our own law officers, Lord Russell
overlooked the previous question, whether the foreign enlistment act
itself is adequate for its purpose. It may or may not be undignified
to submit such a question to the judgment of a foreign prince or a
body of foreign jurists, but it cannot be set aside, and was, in
fact, treated as proper for discussion when the late government
offered to revise, in concert with the United States, the neutrality
laws of both nations. Had we acceded to Mr. Seward’s proposal, the
point to have been decided by the arbitrator would not have involved
a judicial interpretation of any British statute, still less would
it have involved an inquisition into the motives of our government.
It ought to have been so presented as to exclude the hypothesis of mala fides, and to involve only one
consideration—whether, according to known principles of
international law, the circumstances attending the escape of the
Alabama were such as to impose any liability for her depredations,
legal or equitable, upon Great Britain. It is this consideration, we
presume, which is now engaging the attention of our government, and
we may be permitted to express the hope that in any future
discussion of it more stress may be laid on grounds of policy, and
less on grounds of precedent. Precedent is a far safer guide in
ordinary litigation than in controversies between sovereign states.
It can be shown that America has refused compensation in cases
somewhat analogous to that of the Alabama, but unless it can also be
shown that her refusal was justified by that higher code of
international morality which rests upon the common interest of all
civilized nations, little will have been gained by the
demonstration.
The difficulty in framing a more effective neutral law for these
islands is twofold. First, there is the danger that any highly penal
legislation against the enlistment of British subjects in the
service of a foreign power would practically be a dead letter
whenever it happened to conflict with popular sympathy. For
instance, the foreign enlistment act could hardly have been enforced
against the English volunteers who joined Garibaldi, even if they
had technically violated it; and we know that, for similar reasons,
the United States government has reluctantly tolerated many open
breaches of the American act by the Fenians. Secondly, there is the
old difficulty, already mentioned, of distinguishing sales from
equipments of vessels. So strongly has this been felt by some
jurists that a sweeping enactment against the exportation of all
articles contraband of war has been suggested as the only remedy. It
is evidently an anomaly that one foreign belligerent may arm all its
land forces with rifles from Birmingham, subject only to the risk of
capture at sea, whereas the agents of another cannot, without
breaking the law of the land and incurring the risk of heavy
penalties, fit out a vessel of war at Birkenhead. Morally, the two
actions are on a par, and if any attempt be made to place them on
the same legal footing, it should certainly be rather directed to
regulate the former than to encourage the latter. It would, however,
vastly increase the injury
[Page 27]
entailed by war on neutrals if, while it paralyzes such a branch of
commerce as our cotton trade, other branches, such as the
manufacture of small-arms for warlike purposes, should be deprived
of their legitimate development. For the present, we must acquiesce
in the maintenance of the existing line between ordinary contraband
and ships of war, and the problem is, how to control the building
and sale of these so as to check abuses of neutrality. Experience
has shown that, partly owing to the enormous profits that may be
realized by such ventures, and partly to the facility of evasion
where the proof of guilt must chiefly depend on intention, the
prospect of punishment is of little avail. The one remaining
expedient is to arm the executive government with more stringent, if
not more arbitrary, powers of prevention.
