Mr. Johnson to Mr. Seward
Sir: The negotiations which resulted in the protocol on the subject of naturalization of the 9th of October last, and in the convention of the 14th of January last, for the settlement of the water boundary between the possessions of the United States and those of her Majesty’s government, provided for by the first article of the treaty between the two countries of the 15th of June, 1846; and in the convention in relation to the claims, including the class known as the Alabama claims, of the same 14th January, were conducted by Lords Stanley and Clarendon and myself in personal interviews. I deem it, therefore, proper to state the motives which have influenced me in relation to these several subjects, and the grounds upon which I am satisfied that the arrangements are perfectly satisfactory and embrace all that our government has heretofore desired or can obtain.
Two of the matters in controversy when I accepted this mission had been of long duration. The first of them, involving the English doctrine of a perpetual allegiance, which could not, under any circumstances, be renounced by any native subject of this government, was coeval with the beginning of our government; and from that period until the signature of the protocol referred to, was uniformly acted upon by the political and judicial departments of Great Britain.
The second—what is called the San Juan boundary—Great Britain has uniformly maintained gave to her that island and all lying west of it. Our construction of the treaty of 1846 gives the island of San Juan and all west, with the exception of Vancouver’s island and a few diminutive islands in its immediate vicinity, to the United States.
This dispute more than once threatened to involve the two nations in war, a calamity which was only averted by an agreement made in March, 1860, to hold San Juan in joint occupancy.
[Page 412]The third involves still more serious difficulties. From the date of the ratification of the treaty of the 8th of February, 1853, up to the commencement of our late civil war, claims were made against either government by the subjects or citizens of the other for wrongs alleged to have been committed upon them respectively. During that war these claims greatly increased. This government insisted that the property of their subjects had been seized by the military and naval authorities of the United States, in violation of the law of nations, for which the United States were bound to furnish indemnity. On the other hand, the United States complained that this government had caused the destruction of the property of their citizens upon the ocean by a premature and unauthorized recognition of belligerent rights to the insurgents, as also by not preventing, as they might have done by reasonable diligence, a violation of their neutral obligations by the subjects of her Majesty, in the fitting out of armed vessels to cruise, with known hostile intent, against the commercial marine of the United States; and by suffering such vessels afterwards, from time to time, to come into and obtain supplies in her colonial ports.
My special instructions were directed to these three controversies. When I arrived in this country her Majesty was on a visit to the continent, attended by her then secretary for foreign affairs, Lord Stanley. They did not return until September, and my first interview with Lord Stanley was on the 10th of that month, and I presented my letter of credence to her Majesty on the 14th of the same month. In the interval between my arrival in London, on the 17th of August, and the above dates I had no opportunity of ascertaining what the opinion of this government was upon either of these controversies. I only knew that the doctrine of native allegiance had always been asserted and acted upon by their courts in every case where the question was presented on the trial of cases growing out of the disturbances in Ireland. I also only knew that this government had uniformly denied its responsibility for the losses sustained by our citizens from the piratical acts of the cruisers referred to, and that this determination was so decided a one that Lord Russell, when at the head of the Foreign Office, had refused even to agree to submit the question to any arbitration whatever.
In a dispatch from his lordship to Mr. Adams, dated the 30th of August, 1865, he states that her Majesty’s government “declines either to make reparation and compensation for the captures made by the Alabama, or to refer the question to any foreign state.”
I further knew that Lord Stanley, although willing to submit to arbitration the question of responsibility arising from the alleged absence of proper diligence in preventing the sailing of the Alabama and other vessels, positively refused to submit the question, which our government deemed important, whether this government had not prematurely and contrary to international law recognized the insurgents as belligerents.
In this state of things I deemed it important to ascertain what the public sentiment of this country was upon these several topics, and with a view to have that sentiment as favorable to their amicable adjustment as we could wish, to cultivate, one very proper occasion which offered itself, the friendly feelings of her Majesty’s subjects.
From the nature of this government the opinion of the country on every important point of policy or duty is sure in the end to be not only persuasive but controlling; and although the opinions of her Majesty’s government remained as they had been, I believed that, should they find the sentiment of the country to be decidedly in favor of such an amicable adjustment as our government desired, they would cheerfully agree to it.
[Page 413]In order to obtain a clear manifestation of the public opinion on the subject of the Alabama claims, in answering an address made to me by a large association of influential men at Sheffield on the 4th of September, I said:
If either wrongs the other, or suffers the other to be wronged, when it could have prevented it, it should not hesitate, when convinced of the error, to redress the consequences which may have resulted from it; and I have so much confidence in the enlightened judgment of your government and its love of justice, and I have like confidence in my own, that I feel convinced, if either commits such a wrong, it will, when satisfied of it, confess it and do whatever may be necessary to redress it.
That answer was not only received approvingly by the gentlemen to whom it was addressed, but was published with approbation by almost the entire press of the country. When, therefore, I commenced my negotiations with Lord Stanley I had the strongest hopes of being able to settle with him all the matters in controversy between the two countries. And this hope became an assurance at our first interview, as I found him as anxious for their settlement as I was.
As directed by your instructions, I addressed myself first to the question of naturalization. The English doctrine is so wholly unfounded in reason that his lordship did not hesitate to abandon it. Growing out of a feudal policy, it is unsuited to the rights of a free people. It assumes that allegiance is due to the soil upon which a man is born. It makes him, therefore, a political serf, and denies to him the power to change for the better his condition. No free people can consent to such a doctrine, and notwithstanding the uniform decisions of her Majesty’s courts, hoary with age, and never for a moment questioned by any judicial decision, even up to the moment when our protocol was signed, it fell at once before the light of British and American freedom.
As will be seen, the protocol is more comprehensive than the treaties concluded on the same point with the North German confederation and other continental states. These latter are subject to restrictions and qualifications that are not to be found in the former. In that the American principle is recognized pure and simple. Whenever a subject of her Majesty becomes naturalized under any existing law of the United States, his rights are identical with those which belong to a native citizen. His renunciation of his allegiance consequent upon his birth is absolute, and cannot be again resumed or claimed of him without his own consent.
I next called his lordship’s attention to the boundary question; and, in regard to this, we at once agreed to leave it to arbitration. The validity of our claim to the island of San Juan and its adjacencies depends upon the true coustruction of that part of the treaty of the 15th of June, 1846, which provides for the settlement of the boundaries between the territories of her Majesty and those of the United States. The only question in doubt as to the meaning of that treaty relates to the line described as beginning in the “middle of the channel which separates the continent from Vancouver’s island, and thence southerly through the middle of the said channel and of Fuca’s straits to the Pacific ocean.”
What is the meaning of the word “channel” as here used? Does it mean any stream which may separate in fact “the continent from Vancouver’s island;” or does it mean that which is the largest in width and the greatest in depth? If the words used had been the main channel, there could be no doubt that the latter was the one intended. Is it not obvious that the channel which was meant was that one? The widest and the deepest channel, and the one that runs direct into Fuca’s strait, is designated on the maps of the country as the “Canal de Haro.” With those [Page 414] maps before them is it possible to suppose that either of the negotiators of the treaty could have designed the Rosario channel (the one contended for by this government) to be the channel? How could it be said, with any propriety of language, that that was the channel that separated “the continent from Vancouver’s island?” And when, in addition to these considerations, it is known that Great Britain had only in view to secure a right to Vancouver’s island, never pretending, as far as the history of the negotiation shows, a desire to acquire any territory east of that island, upon what possible pretense can it be held that the boundary was designed to be one which would not only give them that island, but large and valuable possessions to the east? And then, how can it be thought that the American negotiator, who was acquainted with the extent of the British demand, would have agreed to a boundary greatly enlarging its area, and abandon, for his own country, valuable territory to which the British government made no pretense of title?
For these reasons—and there are others which might be used to the same end—I believe it to be morally certain that the enlightened arbitrator to whom the adjustment of the dispute is left by the convention of the 14th of January, will render a judgment in favor of the United States.
In regard to the third—the claims convention—I shall be obliged to occupy more of your time. In the first place, the spirit of the age would condemn a resort to arms on the part of the United States upon the subject of these claims, if an arrangement could be made providing for a just and enlightened determination of the questions which they involve.
This is evident from a resolution unanimously adopted by the representatives of all the great powers, including, of course, Great Britain, who assembled at Paris in 1856. For that resolution declared “that it was the wish of all present that, whenever any serious difficulties should arise between two nations, there should not be recourse to arms until the mediation of some friendly power had been invoked to see whether these difficulties were not, by some means or other, capable of adjustment.”
It is not, therefore, for a moment to be thought possible that the United States would desire to declare a war upon grounds which the judgment of the world would pronounce insufficient, and as contrary to the Christian civilization of the age. But if, contrary to this supposed impossibility, such a remedy should be resorted to for the redress of the wrongs in question, would it end in that redress? One of the certain results would be an indefinite increase of our public debt, and a great necessary increase of the taxes which would be required to meet it and maintain the faith of the government; and this at a moment when we are necessarily subjected to greater exactions for such purposes than our people have before known. And another equally certain result would be to injure our national reputation in the world’s opinion. And then what should we gain to compensate in any manner for such injurious consequences? Would the losses sustained by our citizens by the acts of the Alabama and other insurgent cruisers be made good? Would the supposed injury to our national honor be wiped off? These would depend upon the termination of such a war, and who in advance can predict what that termination would be? The power of England upon both land and ocean was never greater than at present. Her steam navy has been brought to such a state of perfection that in speed and other efficiency it is believed to be unrivaled. The commercial marine, therefore, of the United States, at sea when the war is declared, would in all probability be certain victims, while that which was in port, if safe there against attacks of the enemy, would be useless to their owners. Can any one believe that this government, now willing to settle these [Page 415] disputes upon just and honorable terms through the intervention of a commission for a friendly arbitration, could be made to agree, at the close of such a war, to any other mode of settlement? We might, and no doubt would, if that were possible, increase our military and naval fame; but the Alabama losses would be unliquidated, and we be found, at the termination of the war, as regards them, in the same condition as when the war commenced.
War, therefore, being out of the question, and this government refusing to pay the claims referred to until their liability was fixed by arbitration, they must remain unsatisfied until such an arbitration results in their favor. It is also to be borne in mind, in the consideration of the convention, that by entering into it, the two questions which the United States have from the first insisted should be submitted, this government have agreed to submit. As I have stated, Lord Russell refused to arbitrate at all; and afterwards, when Lord Stanley became the foreign secretary, he refused to submit to arbitration one of these questions—the alleged unauthorized recognition of belligerent rights. This question, however, as well as the question whether this government had observed their neutral obligations in suffering the Alabama and other vessels to be built and escape from their ports, will be both before the commission and the umpire. That their decision will be in favor of the United States I do not doubt. The reasons for this conviction I will briefly state:
First. The recognition of belligerent rights.
The history of the world furnishes no instance of so speedy a recognition in the case of revolutionary efforts to subvert an existing government. At the time it was made, the insurgents had no port within which to build a ship of war, large or small, or the power to get her out if she was built. Nor had they any port to which they could carry any ship that they might capture as prize of war for condemnation in a court of admiralty. As a war measure, resorted to simply for the purpose of suppressing the insurrection, and with no view to impart a national character to the insurgents, the President of the United States declared certain ports under the physical control of the insurgents to be in a state of blockade; and, to prevent the inhumanity of the slaughtering of prisoners, he agreed from time to time to exchanges. But in this again without the slightest view of admitting the insurgents as possessing any legal rights whatever.
The object of the blockade being the repression of the rebellion, and that being apparent from the history of the hour, this government must have known that we were far from according to them any national existence. Supposing, then, that the proclamation of the President was known to this government when they declared the insurgents to be belligerents, (a question of fact which I do not propose to examine,) it furnished no justification for the action of this government. And if it was not justified, as I confidently believe was the case, the act is one which bears materially upon the question whether the government is not bound to indemnify for the losses occasioned by the Alabama and the other vessels. For, then, that vessel and the others could not have been constructed or received in British ports, as they would have been, in the estimation of English law as well as the law of nations, piratical vessels. They never, therefore, would have been on the ocean, and the vessels and the cargoes belonging to American citizens destroyed by them would have been in safety.
Upon this ground, then, independent of the question of proper diligence, [Page 416] the obligation of Great Britain to meet the losses seems to me to be most apparent.
But, secondly, what doubt can there be that she is under that obligation because of the absence of proper diligence in the fulfillment of her neutral duties?
What is proper diligence, is a mixed question of law and fact. That a neutral nation is bound to see that a belligerent with whom she is at peace suffers no injury, is a national axiom. That she is, therefore, bound to see that the other belligerent is not permitted to fit out in her ports vessels to cruise against it, is necessarily true. And what is diligence in such a case is equally well settled. It is that all the officers of the government—the government being responsible for the acts of all— shall use their powers to prevent a breach of neutral duties with reasonable skill, care, and promptitude. If they omit either, whether from negligence, ignorance, or corruption, the government is responsible for the consequences. Applying these principles to the present case, is it not manifest that there was a failure in the fulfillment of those duties for which this government is responsible?
1. It was notorious that the Alabama, originally known as No. 290, was being built under the direction of Captain Bullock, formerly an officer of the United States navy, but then in the service of the insurgents. There was not a man of any intelligence in Liverpool who was not aware of it, and the officers of the customs at that port must have known it. Possessing that knowledge notwithstanding, and seeing the vessel progressing to completion up to the moment when she left the port, they took no steps to arrest her. But even assuming that the government itself was not responsible for the misconduct of their subalterns, unless the facts were brought to their own knowledge, their responsibility is equally clear.
This is obvious from a few facts which cannot be controverted. Before the Alabama was constructed, another vessel, called the Oreto, intended to prey upon the commerce of the United States, was fitted out at the same port. As early as the 18th February, 1862, the fact was brought to the notice of Lord Russell, in a dispatch from Mr. Adams, and his lordship’s attention was afterwards invited to it more than once up to the period of her sailing.
The fitting out of the Alabama and her piratical purpose were specially called to the attention of Lord Russell by a dispatch from Mr. Adams dated the 23d of June, 1862, and facts communicated to his lordship which rendered it certain that she was to cruise in hostility to the commerce of the United States. The vessel sailed on the 29th of July of the same year, and no attempt was made in the interval to arrest her. In the meantime, too, accumulated evidence was transmitted to his lordship establishing the fact, if possible, still more clearly that such was her destination; and yet nothing was done towards her seizure until an order for that purpose was issued by the government in London, but not received in Liverpool until she had gone. On the 22d of July, seven days before the vessel left Liverpool, the evidence was furnished his lordship upon which he issued the order of the 29th; and the only reason which has been assigned for the delay in the issuing of that order was the one given to Mr. Adams by his lordship, and which was communicated to your department in Mr. Adams’s dispatch No. 201, of the 1st August, 1862. That reason was this. I quote from the dispatch:
“I read to his lordship the substances of your dispatches Nos. 281 and 299 respecting the use made of the island of Nassau by the rebels, and the fitting out of the gunboats Oreto and 290. His lordship first took [Page 417] up the case of 290, and remarked that a delay in determining upon it had most unexpectedly been caused by the sudden development of a malady of the Queen’s advocate, Sir John D. Harding, totally incapacitating him for the transaction of business.”
That this reason is of any avail, upon the question of liability, who can believe? The obligation of the government was not contingent upon the sickness of her law or other officers, but absolute, and depended entirely upon the fact whether proper exertions were made to guard against the wrong. It is not my purpose in referring to Lord Russell’s explanation to impute any intended wrong to his lordship. He acted, I have no doubt, in what he believed to be his official duty. But this is no answer to the wrong which resulted from it to the United States. The duty of Great Britain to observe a neutrality, as far as her responsibility to other nations is concerned, does not depend upon her municipal law or usage. These should be such as will insure the performance of that duty. The obligation is an international one, and is regulated by the law of nations alone. When that law enforces neutrality, each nation is bound to provide for its faithful observance. The malady, therefore, of the Queen’s advocate constitutes no excuse whatever for the delay to act upon proofs conceded afterwards to be complete by the giving the order for the seizure of the Alabama.
But again, the giving of that order, and the issuing of two others to stop her at Holyhead, Queenstown, and Nassau, is conclusive to show that, in the judgment of his lordship, she had violated the municipal laws of the kingdom, and by so doing had put it out of the power of the government to fulfill their obligations of neutrality to the United States. And yet the vessel was afterwards permitted to enter other colonial ports and coal, and obtain provisions, and thus continue her piratical enterprise.
If the government was bound, as the orders just referred to concede, to seize the vessel if she entered either of the three ports named, why were they not bound to seize her when she entered any other of the ports of her Majesty? Could they be met by the objection that her commander then had a commission purporting to be from the insurgents? If such an objection as that would have been a protection, it would equally have been so at the designated ports, or in the port of Liverpool if she had returned there. An admitted violator of her Majesty’s laws, and in a matter which involved the duty of her government, she could afterwards by force of such a commission ride in safety in any of the ports of her Majesty, even in the port of Liverpool, from which she had escaped by fraud and collusion. This is a proposition too absurd to be seriously reasoned about.
I have thus, at more length than you may deem necessary, considered the Alabama claims, the argument upon them having been exhausted in your dispatches to Mr. Adams, and his dispatches to her Majesty’s government. But I have deemed it due to myself and to you that I should place upon record my own views relating to each of the subjects of the several treaties I have negotiated. I have done this with no view to my own justification, for this is to be found in your instructions, all of which I have followed, as I am glad to know, to the satisfaction of the President and yourself.
I hear that in some quarters objections are made to the claims convention, for which I was not prepared.
1. It is said, I am told, that the claims to be submitted should not be all that have arisen subsequent to July, 1853.
[Page 418]2. That no provision is made for the submission of any losses which our government, as such, may have sustained by the recognition of the insurgents as belligerents, and the depredations upon our commerce by the Alabama and other vessels.
In regard to the first, I do not see upon what ground of justice we should deny to our citizens the opportunity of having their claims upon this government adjusted by means of the commission, whatever may be the date of their origin, when they have not previously had that opportunity. I understand that there are many such claims, and some of them of great alleged hardship. And besides the justice due to this class of claimants, it is most desirable that all claims, without regard to their date, should be settled by means of the convention, as otherwise they may be the subject of controversy hereafter.
As regards the second objection, I am at a loss to imagine what would be the measure of the damage which it supposes our government should be indemnified for. How is it to be ascertained? By what rule is it to be measured? A nation’s honor can have no compensation in money, and the depredations of the Alabama were of property in which our nation had no direct pecuniary interest. If it be said that those depredations prevented the sending forth of other commercial enterprises, the answer is twofold: first, that if they had been sent forth the nation would have had no direct interest in them; and second, that it could not be known that any such would have been undertaken. Upon what ground, therefore, could the nation demand compensation in money on either account? And if it was received, is it to go into the treasury for the use of the government, or to be distributed amongst those who may have engaged in such enterprises, and how many of them are there, and how are they to be ascertained? France recognized the insurgents as belligerents, and this may have tended to prolong the war. This, too, it may be said, was a violation of her duty, and affected our honor. If we can claim indemnity for our nation for such a recognition by England, we can equally claim it of France. And who has suggested such a claim as that?
But the final and conclusive answer to these objections is this:
1. That at no time during the war, whether whilst the Alabama and her sister ships were engaged in giving our marine to the flames, or since, no branch of the government proposed to hold her Majesty’s government responsible, except to the value of the property destroyed, and that which would have resulted from the completion of the voyages in which they were engaged. The government never exacted anything on its own account. It acted only as the guardian and protector of its own citizens, and therefore only required that this government should pay their losses, or agree to submit the question of its liability to friendly arbitrament. To demand more now, and particularly to make a demand to which no limit can well be assigned, would be an entire departure from our previous course; and would, I am sure, not be listened to by this government or countenanced by other nations. We have obtained by the convention in question all that we have ever asked; and with perfect opportunity of knowing what the sentiment of this government and people is, I am satisfied that nothing more can be accomplished. And I am equally satisfied that if the convention goes into operation, every dollar due on what are known as the Alabama claims will be recovered.
I cannot conclude this communication without bearing testimony to the frank and friendly manner in which I have been met by Lords Stanley and Clarendon, and to the very sincere desire which they exhibited [Page 419] throughout our negotiations to settle every dispute between the two nations upon terms just and honorable to each.
I have the honor to remain, with high regard, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.