Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session of the Fortieth Congress
Sir F. Bruce to Mr. Seward
Sir: Her Majesty’s government having had under their consideration your despatch to Mr. Adams, dated August 27th, 1866, on the claims of citizens of the United States against Great Britain on account of losses inflicted on American commerce by cruisers of the so-called Confederate States during the civil war, have addressed to me a despatch setting forth their views on the various subjects to which it alludes, and containing certain proposals on their part by which they consider that a settlement of these claims may be effected.
In bringing their proposal under your notice, I cannot do better than follow the method adopted by Mr. Adams, and I have therefore the honor to enclose copy of the despatch, with a request that you will inform me at your convenience whether the government of the United States are prepared to accept the principle of arbitration, as contained in that despatch.
I am instructed at the same time to state that, independently of these claims, there may be other demands on the part of American citizens arising out of the events of the late civil war, while there are certainly numerous British claims arising out of those events which it is very desirable should be inquired into and adjusted.
The two governments were in communication with each other on this subject in the latter part of the year 1862, and the draft of a convention for a settlement of these claims was actually under consideration. Circumstances, however, prevented the matter being proceeded with at that time; and, indeed, it was premature to enter upon it while fresh claims were liable to start up.
The time seems now favorable for reviving the subject, and her Majesty’s [Page 184] government think that they may fairly invite the government of the United States to undertake, in the event of an understanding being come to between the two governments as to the manner in which the special American claims alluded to in the enclosed despatch shall be dealt with, that, under a convention to be separately but simultaneously concluded, the general claims of the subjects and citizens of the two countries arising out of the events of the late war may be submitted to a mixed commission, as in a former instance; the commission to be charged with the examination of such claims with a view to their eventual payment by the government adjudged to be responsible.
I have the honor to be, with the highest consideration, sir, your most obedient, humble servant,
Hon. William H. Seward, &c., &c., &c.
Lord Stanley to Sir F. Bruce
Sir: I transmit to you, herewith, copy of a note which I have received from the United States minister at this court, enclosing copy of a despatch from Mr. Seward, in which he again brings before her Majesty’s government the claims of United States citizens against Great Britain, on account of losses inflicted on American commerce by cruisers of the so-called Confederate States during the late civil war.
In regard to the date of this note, it is necessary that I should explain that on its receipt, I stated verbally to Mr. Adams the impossibility of replying to it without consulting my colleagues, and the consequent probability that my answer must be delayed for some weeks.
The claims in question are now, for the first time, brought under the notice of her Majesty’s present advisers; and the length of time which has elapsed since the termination of the civil war justifies the hope that they may be dispassionately considered on both sides.
It is therefore with no desire to revive a controversy which has been carried on at great length, and in which every argument bearing on the subject has been advanced and discussed, but with a view to facilitate the impartial examination of the grounds on which these claims are based, that her Majesty’s government feel bound to notice expressions and statements in Mr. Seward’s despatch which they consider unsupported by evidence, and which, injustice to their predecessors in power and to the honor of the country, they cannot allow to pass unexamined.
And first, with regard to the assertion made at the commencement of the despatch, that “the Sumter, the Alabama, the Florida, the Shenandoah, and other ships of war were built, manned, armed, equipped, and fitted out in British ports, and despatched therefrom by or through the agency of British subjects;” and “were harbored, sheltered, provided, and furnished, as occasion required, during their devastating career, in ports of the realm, or in ports of British colonies in nearly all parts of the globe.”
It can scarcely be necessary, after the protracted controversy that has taken place on this subject, to enter minutely into the history of the several vessels mentioned. It must have escaped Mr. Seward’s recollection that the Sumter did not proceed from a British port, but was an American vessel, and commenced her career by escaping from the Mississippi. With regard to the Alabama, the Florida, the Shenandoah, and the Georgia, (the other vessel mentioned in the schedule of claims,) they were undoubtedly of British origin. But the United States government will hardly contend, that the mere fact of a vessel having been built in the port of a foreign power, or having been originally despatched therefrom, can of itself render the government of that country responsible for the use which may be made of such vessel after it has passed from their control.
The Alabama was, when she escaped from England, wholly unarmed and unequipped as a vessel of war She received her armament and warlike equipment, her commander and crew, in Angra bay, Azores, a possession of the crown of Portugal, where the British government could not have exercised any jurisdiction or control over her proceedings, even if they had had the opportunity of so doing.
The Florida, under her original name of Oreto, left England unarmed and unequipped, but suspicion having attached to her, she was seized, and proceedings were instituted against her in the British admiralty court at Nassau, which failed for want of proof, and she was eventually equipped as a confederate cruiser in the port of Mobile, at that time in the occupation of the confederates.
The Shenandoah left England unobserved, and, therefore, unquestioned, and for anything that had transpired, on a legitimate voyage, and was only armed, equipped and manned as a vessel of war off Funchal, a possession of the Crown of Portugal. The first intimation [Page 185] which was received of her proceedings was from her Majesty’s consul at Teneriffe, reporting the transfer of crew and armament to her from the Laurel, at the Desertas, off Funchal. Mr. Adams’s letter on the subject was dated the 18th of November, 1864, at which time she had already commenced her depredations. This fact appears from the despatch from the United States consul at Rio de Janeiro, of which a copy was forwarded to Earl Russell by Mr. Adams, on the 7th of April, 1865.
The Georgia escaped inquiry in a similar manner, and was equipped, manned and armed off the coast of France, and presumably in French waters, but unquestionably not within the jurisdiction of the British Crown. She sailed from the Clyde on the 2d of April, 1863, having cleared for Alderney. Mr. Adams’s letter stating that she was intended for a cruiser was not received until the 8th of April, the very day on which, as was subsequently shown, she was receiving her armament off the French coast. Instructions were sent to the governor of Guernsey, but she proceeded to Cherbourg, without touching at the Channel islands.
As regards the reception of these vessels in British ports, it must be remembered that when they appeared in those ports they did so in the character of properly commissioned cruisers of the government of the so-styled Confederate States, and that they received no more shelter, provision, or facilities, than were due to them in that character. For a recognized belligerent has a right to expect, in the ports of a neutral power, the same degree of hospitality as is conceded to its antagonist, subject to such restrictions as may be indifferently imposed on both; and it has never been alleged that greater freedom of intercourse was allowed to, or that less restrictions were imposed on, the cruisers of the confederate than on those of the United States in British ports in any quarter of the globe. The instructions issued by the British government to its civil, naval and military authorities, with which the government of the United States are well acquainted, sufficiently establish this fact. Nor can it be said that those instructions were drawn up in an unfavorable spirit to the United States. The prohibition to bring prizes into British ports, and the limit placed on the supply of coal, told principally against the confederate ships, and prevented them from using British ports as their basis of operation.
The treatment of these vessels was, therefore, no more than the legitimate consequence of the state of civil war which existed in America, and which was recognized by her Majesty in her proclamation of neutrality.
On the subject of this proclamation, Mr. Seward proceeds to make remarks which her Majesty’s government cannot admit to be justified by the facts. They have never as yet met with any refutation of the statement contained in the judgment of the Supreme Court of the United States, and already quoted by Lord Russell, in his note to Mr. Adams, of May 4th, 1865, that “this greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local, unorganized 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.” Her Majesty’s government cannot understand how, in the face of such a conclusion, declared by the highest judicial authority of his country, and in direct contradiction with the action of the government of which he is a member, Mr. Seward can characterize a contest, which he has at the commencement of his despatch termed “a civil war,” as “a domestic disturbance, which, although it had severe peculiarities, yet was in fact only such a seditious insurrection as is incidental to national progress in every State.”
Her Majesty’s government find it also laid down in the judgment above quoted, that “the proclamation of blockade 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.” Again, in the judgment of the district court of Columbia, on the Tropic Wind, given June 17th, 1867, it was ruled that the facts of the secession of the southern States, “as set forth by the President, with the assertion of the right of blockade, amount to a declaration that civil war exists—that blockade itself is a belligerent right, and can only legally have place in a state of war.” Her Majesty’s government are, therefore, at a loss to conceive how the term “intervention” can be applied to a proclamation which did no more than acknowledge a state of war, first recognized by the President of the United States himself, and which was issued with the express purpose of warning her Majesty’s subjects from any participation in the conflict.
Mr. Seward’s argument that the declaration of British neutrality tended to encourage and create a civil war, which would not otherwise have extended beyond the character of a local insurrection, can scarcely better be met than by a reference to the legal decisions above j mentioned. In opposition to the opinion he expresses that the proclamation was unnecessary and premature, it may be justly urged that her Majesty’s government had to provide at a distance for the lives and interests of British subjects on or near the seat of war, that they had to consider the rapidity with which events were succeeding one another on the American continent, the delay which must elapse before intelligence of those events could reach them, and the pressing necessity for definite instructions to the authorities in their colonies, and on their naval stations near the scene of the conflict. They had, as Lord Russell has stated, but two courses open to them, on receiving intelligence of the proclamation of blockade, [Page 186] namely, either that of acknowledging the blockade, and proclaiming the neutrality of her Majesty, or that of refusing to acknowledge the blockade, and insisting upon the right of her Majesty’s subjects to trade with the ports of the south where the government of the United States could exercise no fiscal control at that time.
Of these alternatives, it is hardly open to question, that that which they pursued was at once the most just and the most friendly to the United States.
It is only necessary to add that, before the proclamation was issued, seven of the States of the Union had declared their secession, and that they possessed a formally constituted government, which carried on the administration in a regular manner; which had possessed itself, in some cases by force, of the fortified ports within its territories, and which had proclaimed its intention of issuing letters of marque.
Before the intelligence of the course adopted by her Majesty’s government could reach America, the legislatures of three more States had provisionally declared their adhesion to the confederation thus established; upwards of one hundred thousand militia and volunteers had been called out by the President of the United States; active measures had to be taken for the defence of the capital; military and naval preparations were hurrying on; a repetition on a much larger scale of the collisions which had already taken place between the opposing forces was imminent; the blockade of the southern ports had actually commenced; and the right of search and capture had already been exercised over British vessels.
Taking these circumstances into consideration, it cannot be admitted that the recognition of the insurgent States as belligerents was premature, or that their insurrection was thereby encouraged; nor can it be supposed that the British government could refuse to the Confederate States that belligerent character which the United States themselves implicitly granted and subsequently allowed to them.
But if Mr. Seward means to base the present claims on the ground that the British government should, while acknowledging the blockade, have awaited the arrival of a confederate ship of war in British ports before admitting the possession by the Confederate States of a ship of war, and therefore their right to be treated on the high seas as a belligerent power, a reference to dates will show that the question would have been raised on the arrival of the Sumter at Trinidad, and of the Nashville at Southampton, some months before Mr. Adams laid his first complaint against the vessels mentioned in the summary of claims. It is difficult to see what injury the United States government can allege, or what redress they can claim on this score.
Still more difficult is it to understand the process of reasoning by which the acts of British subjects in furnishing assistance and supplies to the Southern States can be traced to the issue of the proclamation. Undertakings of this nature; in favor of either of the belligerents, were equally in contravention of its terms, and those who engaged in such enterprises did so at their own risk. The United States, whose communication with Great Britain was uninterrupted, received assistance of this illicit nature to a very much larger extent than their antagonists.
Mr. Seward goes on to say, that “when the municipal laws of Great Britain proved in practical application to be inadequate to the emergency, the British nation omitted for various reasons, which seemed to the United States insufficient, to revise those laws.”
To this statement a simple answer may be given. That the foreign enlisment act, like every other enactment, is liable to evasion, and that it was on more than one occasion successfully evaded, no one has ever attempted to deny. But, looking at the nature of the evasions which actually occurred, it must be asked, whether these could have been prevented by any practicable amendment of the law? It was not for want of legal power in the authorities, nor from disinclination to use that power, but solely from the deficiency of evidence, that the Florida was not detained in England, and that when subsequently seized at Nassau, she was released by the authorities there. In the case of the Shenandoah and Georgia, no steps could be taken, because no information was given of their designs until they had escaped from British jurisdiction. As regards the Alabama; the case viewed in this respect appears still stronger. The law would, in the opinion of her Majesty’s government, have justified her detention. That detention was actually decided upon; and it was only in consequence of an unexpected stratagem that she succeeded in escaping before orders for that purpose arrived. To whatever cause her escape may be attributable, it did not take place in consequence of any want of stringency in the act.
Nor, after that unfortunate occurrence, were the British government unwilling to respond to Mr. Adams’s appeal for more effective measures to prevent such proceedings. They answered it by a proposal for a simultaneous revision of the law of both countries. As the opinion of the United States government, expressed in reply, was to the effect that their own law was not in need of amendment, it is to be presumed that a complete assimilation of the British act to that law was all that they expected or desired. Yet the British law is substantially identical with that of the United States, with the exception of two provisions, the insertion of which, whatever may be their value in other respects, would have been wholly ineffective to prevent the particular infractions of neutrality complained of. The first of these provisions requires that the owners or consignees of armed vessels, sailing out of the ports of the United States, and belonging in whole or in part to citizens thereof, shall give security to double the value of the vessel and cargo, that such vessel shall not be employed by them [Page 187] to cruise or commit hostilities against any power with which the United States are at peace. The second empowers the collectors of customs to detain any vessel manifestly built for warlike purposes and about to depart the United States, of which the cargo shall principally consist of arms and munitions of war, when there is just ground for suspecting that she will be employed against a friendly power, until a definitive decision can be come to on the case, or security given as above. It is sufficiently evident that these two articles would, at the utmost, only have served to enhance the price of any vessel against which they might have been enforced. But, in addition to this, it may be observed that the terms in which they are framed would have rendered them inapplicable to the vessels whose depredations are now complained of, none of which sailed out of British ports as armed vessels, or had on board cargoes principally consisting of arms or munitions of war. They would have been equally ineffective as against the ships which furnished the armament, equipment, and crews to those vessels, but which were not armed nor employed in hostilities against the United States. Supposing even that the scope of these provisions had been so enlarged as to include the eases in question, it would still have been impossible to demand security for, or to order the detention of, vessels to which no suspicion had attached, such as the Shenandoah and Georgia; or to take retrospective action as regards the Florida and Alabama, which had already escaped before Mr. Adams’s appeal and the subsequent negotiation took place. It is fruitless to argue whether a nugatory and fictitious amendment of our law would have been accepted by the United States as a satisfactory proof of the willingness of Great Britain to meet their wishes. In all respects which concern the present controversy, the law of the two countries is identical; and as the government of the United States declare their own law sufficient to meet the obligations imposed upon them by international duty, it is not easy to understand why they should consider that of England inadequate for the same purpose. It is sufficient to say that the actual circumstances do not warrant Mr. Seward in founding the claims now brought forward on any defect of the foreign enlistment act.
There is another statement made by Mr. Seward which cannot be here passed over. Hedrawsa contrast between the conduct of the British government during the recent American civil war and that of the United States government in dealing with the Fenian projects of aggression against Canada. It cannot be admitted that this contrast is justified by the facts of either case. The British government were ready, anxious, and determined throughout the whole course of the civil war to exert all the power conferred upon the Queen by the law of the land to prevent British subjects from taking part in that contest. But the law could not be put in force against offenders unless on the production of evidence, first, that the law was violated, and secondly, that its violation was the act of the persons charged with that offence. The secrecy observed by these persons in their unlawful proceedings baffled all the efforts of her Majesty’s government, no less than those of the diplomatic and consular agents of the United States in this country, to detect them.
The action of the Fenians, on the contrary, was open and avowed. It showed itself in public meetings and in the public press, in the enrolment of troops, the collection of arms, the solicitation of money, and finally in the establishment in the territory of the United States of a so-called provisional government, with its legislative assembly and administrative officers. Throughout these transactions there has been no attempt at disguise, but rather an arrogant display of publicity. The government of the United States needed, therefore, no research on the part of its own officials, nor even a denunciation by British authorities, to establish against these Fenian agitators a palpable case of infringement of the laws of the United States, coupled with a deliberate design to undertake from the territory of the United States, whose government was in amity with that of her Majesty, a military operation directed against either Canada or Ireland. Her Majesty’s government are far from desiring, in any way, to depreciate the friendship of the course which the United States government adopted when the proceedings of the Fenians assumed the shape of an actual aggression on British territory; they readily admit that “the unlawful attempts against Great Britain were disallowed” by that government, ‘whose direct and unprompted action greatly contributed to the defeat of the enterprise. But they utterly deny the alleged similarity of the two cases. They cannot admit that because four vessels escaped the action of British law, two of them unperceived, one by an accident, and one for want of evidence, Mr. Seward is justified in stating that “ruinous British warlike expeditions against the United States were practically allowed and tolerated by her Majesty’s government, notwithstanding remonstrance;” and looking to the fact that at least an equal number of vessels were arrested before commencing their career, and that on all occasions when the law could be enforced, legal proceedings were taken against the offenders, they consider that they have a right to assert that under circum-stances similar to those in which the United States government has been lately placed, they would not have pursued a less fair or friendly course.
It is not the intention of her Majesty’s government to pursue this discussion further; yet I must observe that, were it their wish to apply to the conduct of the United States the same kind of criticism in which Mr. Seward has indulged with regard to them, they might fairly be entitled to ask whether the restoration, by order of the President, of arms captured from Fenian insurgents without any appearance of an intention on the part of those insurgents to abandon their culpable projects, and the discontinuance of government prosecutions instituted against their leaders without any proof that the evidence against those leaders was [Page 188] inadequate for their conviction, are not circumstances quite as open to an unfavorable construction as any of those on which Mr. Seward has laid so much stress as against the conduct of this government. But her Majesty’s government have made no complaint of those proceedings, nor do they intend to make any. They think it fairer and more reasonable, when judging of the policy of other States, to deal with that policy as a whole, and not to magnify into undue importance isolated acts which may appear contrary to its general tendency. This rule they will always be ready to apply to others, and they claim its application to themselves.
Having dealt so far with Mr. Seward’s argument, and pointed out the wide discrepancies that exist between his views of the question and those entertained by her Majesty’s government, I now proceed to consider the practical proposition with which he concludes.
It is impossible for her Majesty’s present advisors to abandon the ground which has been taken by former governments so far as to admit the liability of this country for the claims then and now put forward. They do not think that such liability has been established according to international law or usage; and though sincerely and earnestly desiring a good understanding with the United States, they cannot consent to purchase even the advantage of that good understanding by concessions which would at once involve a censure on their predecessors in power, and be an acknowledgment, in their view, uncalled for and unfounded, of wrong-doing on the part of the British executive and legislature. But, on the other hand, they are fully alive to the inconvenience which arises from the existence of unsettled claims of this character between two powerful and friendly governments. They would be glad to settle this question if they can do so consistently with justice and national respect; and with this view they will not be disinclined to adopt the principle of arbitration, provided that a fitting arbitrator can be found, and that an agreement can be come to as to the points to which arbitration shall apply.
Of these two conditions, the former need not be at present discussed; the latter is at once the more important and the more pressing.
With regard to the ground of complaint on which most stress is laid in Mr. Seward’s de spatch, viz: the alleged premature recognition of the Confederate States as a belligerent power, it is clear that no reference to arbitration is possible. The act complained of, while it bears very remotely on the claims now in question, is one as to which every State must be held to be the sole judge of its duty; and there is, so far as I am aware, no precedent for any government consenting to submit to the judgment of a foreign power or of an international commission the question whether its policy has or has not been suitable to the circumstances in which it was placed,
The same objection, however, does not necessarily apply to other questions which may be at issue between the two governments in reference to the late war; and with regard to these, subject to such reservations as it may hereafter be found necessary to make, I have to instruct you to ascertain from Mr. Seward whether the United States government will be prepared to accept the principle of arbitration as proposed above. Should this offer be agreed to ‘it will be for Mr. Seward to state what are the precise points which, in his opinion, may be and ought to be so dealt with. Any such proposal must necessarily be the subject of deliberate consideration on the part of her Majesty’s government: but they will be prepared to entertain it in a friendly spirit, and with the sincere desire that its adoption may lead to a renewal of the good understanding formerly existing, and, as they hope, hereafter to exist, between Great Britain and the United States.
I am, &c,
Hon. Sir Frederick W. A. Bruce, G. C. B, &c., &c., &c.