No. 129.

Mr. Motley to Mr. Fish.

No. 502.]

Sir: Referring to my Nos. 482 and 489, I have now the honor to send herewith a copy taken from yesterday’s Times, of a letter addressed by Lord Granville, on the 21st ultimo, to Count Bernstorff, in reply to his note of the 8th ultimo.

JOHN LOTHROP MOTLEY.

Belligerants and neutrals.

Lord Granville has addressed the following dispatch to Count Bernstorff in reply to his note of the 8th instant:

“Foreign Office, October 21.

“M. l‘Ambassadeur: I have the honor to acknowledge the receipt of your excellency’s note of the 8th instant.

“The friendly spirit of your reply to the observations which I addressed to you on the [Page 184] 15th ultimo, on the subject of the attitude of this country as a neutral, and the attention which you have evidently given to the arguments and explanations which I placed before you, encouraged her Majesty’s government in the belief that the calm discussion by the two governments of the difficult question of the claims of belligerents upon neutrals is calculated to remove present misunderstandings, and possibly to pave the way for an eventual solution. I have also to thank your excellency for having pointed out certain apparent breaches in the chain of practice which I had described as forming an unbroken precedent for the course now adopted, and thus afforded me an opportunity for giving such further explanations as will establish, beyond a doubt, its consistency.

“The policy of her Majesty’s government, and the grounds on which it is based, were so fully explained in my former note that I need not again advert to the subject, further than to observe that your excellency is wrong in supposing that at any time a change took place in that policy. From the date of the outbreak of the war the cabinet has never hesitated as to the course which should be pursued. The views of the House of Commons were clearly manifested when, on the 4th of August, an amendment, by which it was proposed to insert in the foreign enlistment act, then under discussion, a clause prohibiting the exportation to belligerents of arms or munitions of war was rejected by a large majority; and the same opinions were shown to be held in the House of Lords in the debate of the 8th of August on the same bill, in which the lord chancellor, the lord privy seal, and Lord Cairns took part. I myself, in answer to a question addressed to me in the House of Lords by the Marquis of Clanricarde on the 22d of July, went so far as to express some doubts whether a policy of prohibition was advisable even in self-defense; and in the constant conversations on the subject which I have had with your excellency since the commencement of the war, I have invariably explained to you that the new foreign enlistment act neither diminished nor added to the powers of the government as regarded the exportation of munitions of war, and that it was our intention to adhere on that point to the usual practice of this country, which practice we believe to be in conformity with the established principles of public law.

“I had supposed that from those various sources of information your excellency would have been in a position fully to acquaint the North German government with the attitude which this country might be expected to maintain, and it is therefore with surprise that I have learnt that, previously to the receipt of my note of the 15th ultimo, you had doubts upon the subject. I can find nothing in my earlier notes to which you refer which could lead to the inference that there was any hesitation on the part of her Majesty’s government; those notes, written in reply to specific statements made by your excellency respecting alleged exportations of munitions of war, contained merely the acknowledgments which were due to your excellency as a matter of courtesy promises of inquiry into facts, and brief reports of the results of investigations.

“Your excellency appears to take exception to my having instituted inquiries at all, but upon this point I most respectfully differ. Whatever view may be taken of the principle on which the government has acted, it is right that the facts should be correctly ascertained. Wild rumors have been in circulation as to the extent to which arms are being supplied by this country to France; bitter articles founded on these rumors have been inserted in the German newspapers; your excellency based upon them frequent and strong representations, and her Majesty’s government might, in my opinion, fairly be accused of supineness and neglect if, at the meeting of Parliament, they should be so ill-informed as to be unable to supply any information upon this point. It was possible, moreover, that the shipments of arms might have been of such a nature as to bring them within the operation of the clauses of the foreign enlistment act forbidding the dispatch of store-ships or the fitting out of military or naval expeditions. It was for these reasons that I felt it to be my duty to investigate any statements brought to my notice by your excellency, and not to allow them, if unsupported, to pass unchallenged.

“The necessity for this inquiry will be the more obvious when the complaints made from time to time by your excellency are compared with the answers which I have returned to them; and I may here observe that, before returning those answers, I have taken exhaustive steps to test their accuracy, by obtaining independent information from the customs officials, from the board of trade, from the police, and from the small-arms department of the war office. I am not aware of the sources from which your excellency’s information is derived. I do not, of course, suppose that any importance would be attached by you to reports given in return for pecuniary rewards, such as have been offered in newspaper advertisements; but I think it cannot be doubted that the sources which I have above enumerated are likely to be more trustworthy than those to which the able and active consuls of the North German Confederation have access.

“Your excellency observes that in your notes from the 1st to the 9th of September you brought to my notice a series of irrefutable facts. It must have escaped your notice that in my answer of the 9th of that month I showed that the majority of those alleged facts were unfounded.

[Page 185]

“In your note to which I am now replying, you make two further specific statements, the truth of which I have also felt it to be my duty to investigate; that respecting the order supposed to have been given by Count Palikao to a firm in this country on the 23d of August for 40,000 rifles to be delivered within a week, and that in which the number of fire-arms shipped from this country to France between the 30th of August and the 8th instant is calculated at from 120,000 to 160,000. As regards the former, while observing in passing that Count Palikao’s statement, as reported in the Journal Officiel was merely that these arms had been ordered à l’étranger, I have to state that no trace can be discovered of the order ever having been received in this country, and that it is certain that, if it was received, it was not executed; and, as regards the latter, that the full returns now before me show that the supplies of arms drawn by France from this country between the two specified dates are less than those drawn by her from the United States, whence no exports have been made approaching the figures mentioned by your excellency. It is, indeed, understood that there is now some activity at Birmingham in the manufacture of fire-arms, owing to the increasing demand, but experienced persons are of opinion that, in consequence of the recent stagnation of the trade, its present producing power is very limited.

“I may here remark that her Majesty’s government have learnt with some surprise that, while your excellency has been instructed to make such constant complaints on the, subject of the exports of munitions of war from this country, no such instructions had, up to a very recent date, been addressed to your colleague in the United States, who had only made personal representations to the United States Government, although the latter have adhered in the same manner as her Majesty’s government to the principle and practice of neutrals, and have consequently not interfered with the exports to which I have above referred. The President of the United States, in his proclamation of the 22d of August last, expressly states that ‘the laws of the United States, without interfering with the free expression of opinion and sympathy, or with the open manufacture or sale of arms or munitions of war, nevertheless impose upon all persons who may be within their territory and jurisdiction the duty of an impartial neutrality during the existence of the contest.’

“I will next proceed to examine the fresh complaint preferred by you against her Majesty’s government of violation of international and British law, of which I trust that I can briefly dispose. Your complaint refers to the sale of the Hypatia and Norseman to the French government to be used as store-ships. Previously to the receipt of your present note I had received but one communication from you on this subject, that of the 19th of August, in reply to which I informed you, on the 29th of the same month, that the attention of her Majesty’s government had been already drawn by their own officials to the circumstances of these sales, and that, on investigation, it had been ascertained that in both cases the vessels were dispatched from England before the foreign enlistment act of 1870 came into operation, and that, consequently. the owners, who were not liable to penalties under the previous enlistment act, could not be successfully prosecuted under the provisions of the new act. Having heard nothing further from your excellency on the subject, I concluded that you were satisfied with this explanation; but as I now learn that you are dissatisfied on certain points, I think it due to you that I should explain that the information in possession of her Majesty’s government shows that the vessels sailed from England under the British flag because the actual sale was effected at Cherbourg, at which port the vessels were handed over to the purchasers before the passing of the new act. I do not understand to what process your excellency refers in stating that ‘up to the 8th ultimo the transfer of the property to the French owners had not been entered on the ship’s books;’ but the steps which the law requires were duly complied with by the vendors, the certificates of registry having been given up in the month of August to the proper officers with the notifications that the vessels had been sold abroad. To your excellency’s remark, therefore, that I ‘declined to proceed’ against these vessels, I have only to reply that there was and is no ground whatsoever upon which a prosecution could be based.

“I will not follow your excellency through the passages of your note in which you show that her Majesty’s government have the power to prohibit the export of arms, a fact which I have constantly stated to you; nor do I think it necessary to refer to the passage in which you quote the French law of the 14th of July, 1860, further than to observe that the clauses of that law are, like those possessed by the British executive, merely permissive, and that a system of bonds is necessarily open to the objection that it merely serves to enhance the price of the arms—a matter of little account when their acquisition is of national importance.

“I may refer incidentally to your excellency’s remark that you do not find in the printed report of the neutrality laws commissioners any confirmation of my statement that the opinion of those commissioners was, that to prohibit the export of munitions of war was impracticable and impolitic. It is true that that opinion was not embodied in their report; but it is none the less true that the subject was discussed by the commission, and that the opinion pronounced upon it was that which I have recorded, as [Page 186] is shown by the report not containing any recommendation of the alteration of the law in this respect.

“I now come to the points in your excellency’s note which appear to me to demand a full explanation. I had stated in my note of the 15th that the practice of Great Britain, as a neutral, had always been that which she now follows. Your excellency disputes this position, and in support of your arguments you adduce two. documents— a letter from the Duke of Wellington to Mr. Canning, dated the 30th of August, 1825; and an instruction from the board of treasury to the customs, dated the 2d of June 1848. I have not failed to examine most carefully the instances which you specify and the following is the result of the examination:

“A laborious search has failed to discover any trace of a letter from the Duke of Wellington of the 30th of August, 1825; but a paper has been found, dated August 3, 1826, which contains the passage quoted by you. This paper is a minute written by the Duke of Wellington upon a draught dispatch addressed by Mr. Secretary Canning to Mr. Stratford Canning, then British ambassador at Constantinople, at the time of the war between Turkey and Greece, in which, with reference to a rumor that arms were being sent from England for the purpose of equipping abroad vessels to be commanded by Lord Cochrane, in the service of Greece, Sir. Canning stated that such a proceeding was not contrary to law, and could not be prevented by her Majesty’s government. To the latter part of this statement the Duke of Wellington demurred, referring to the fact that, when Spain was at war with her colonies, England had prohibited exports to both belligerents, and making use of the words quoted by your excellency.

“Mr. Canning, however, insisted on his view, stating, in his rejoinder: ‘The law does permit the exportation of arms as merchandise; and I must authorize Stratford so to say, if he is to state the case of his country truly.’ The duke gave way, and no order in council prohibiting the export of arms was issued by the government.

“It is also incidentally important to observe that the precedent for such a prohibition, to which reference was made by the duke, was one in which Great Britain had no option in the matter. She had bound herself by article 3 of the additional articles, signed at Madrid on August 28, 1814, to the treaty with Spain of the 5th of July of the same year, to ‘take the most effectual measures for preventing her subjects from furnishing arms, ammunition, or any other warlike article to the revolted in America;’ and being thus compelled, when Spain was at war with her colonies, to prohibit the exportation of arms to the latter, she subsequently extended the prohibition to Spain herself, in order to avoid the imputation of favoring one belligerent to the exclusion of the other.

“The second apparent instance adduced by your excellency of departure from what I have stated, to be the ordinary practice of Great Britain, is the issue of orders to the customs officials, on the 2d of June, 1848, instructing them to prevent the exportation of arms for the purpose of being employed in hostilities against the Danish government. I shall have no difficulty in showing that there were exceptional causes which made the issue of these instructions imperative on her Majesty’s government.

“On the 25th of May, 1848, the Danish minister in London drew attention to the fact that preparations were being made in this country for sending cannon to Hamburg, and called on her Majesty’s government, in accordance with the stipulations of the treaty bet ween Great Britain and Denmark of 1670, to prevent those shipments being made. The treaty appealed to was signed at Copenhagen on the 11th of July, 1670, was supplemented by an explanatory article on July 4, 1780, and was confirmed by the 13th article of the treaty signed at Kiel on the 14th of January, 1814; it provided that ‘the aforesaid Kings, for themselves, their heirs and successors, mutually do undertake and promise that they will not aid or furnish the enemies of either party that shall be aggressors with any provisions of war, as soldiers, arms, engines, guns, ships, or other necessaries for the use of war, or suffer any to be furnished by their subjects.’ It is clear that, under the provisions of this stipulation, her Majesty’s government had no alternative but to issue the orders to which your excellency has drawn attention.

“I have thus shown that the practice of Great Britain has not been different from that which I originally stated it to be; and that, on the contrary, two cases of apparent divergence, on being examined, prove that the departure from the usual practice, when it existed, was dictated by exceptional causes, and thus indirectly confirm the accuracy of my statement that the course now adopted is founded on unbroken precedent.

“In conclusion I should wish to make a few general remarks.

“Your excellency will, I think, admit that though her Majesty’s government are not prepared to change the practice of the country in regard to neutrality, they have been vigilant in watching and checking any symptoms of violation by British subjects of existing law. Some weeks before your excellency drew attention to the cases of the Hypatia and Norseman the proper authorities of this country had been engaged in investigating them, and the watchfulness shown on those occasions has doubtless been the reason that no attempt has been made to sell or dispatch vessels in contravention [Page 187] of the foreign enlistment act. A report which had reached her Majesty’s government that attempts were being made to enlist Irishmen for military service in France was acted upon with the greatest promptitude by the authorities of the Home Office, even at a time when, as it appears from the note which you addressed to me on the 11th instant, it did not appear to you that much importance was to be attached to the rumors. I can assure your excellency that no effort shall hereafter be spared to deal promptly with any actual or contemplated infractions of the law.

“I am glad to find that your excellency now not only does not insist upon, but disclaims, the doctrine of benevolent neutrality, which appeared to her Majesty’s government, after a most careful examination of your memorandum of the 30th of August, to be the principal basis on which your representations were founded. That such a doctrine is untenable will now be universally admitted; while it must be as generally admitted that it would be a real departure from neutrality for a neutral to change without general consent its practice—a practice, be it observed, in conformity with the views of all writers on international law, because such practice might incidentally be more or less favorable to one of two belligerents.

“Good offices may be benevolent, but neutrality, like arbitration, cannot be so.

“It would be a serious violation of neutrality if a neutral nation guided itself by any principle or rule of conduct, however just or meritorious in itself, which had not been previously recognized and sanctioned by the usage of nations.

“I sincerely rejoice that Prussia, who, as a neutral, has always been a strenuous champion of the rights of neutrals, now, as your excellency points out, shows a desire to ‘incline to every progress in the field of increasing the active freedom’ of commercial interests in time of war; though I cannot but observe that the special point which your excellency adduces as evidence of this desire is a question which may be viewed differently by independent powers in proportion to their maritime strength.

“Her Majesty’s government, at the outset of a war which they deplored, and after an appeal to the belligerents to act in accordance with the 24th protocol of the treaty of Paris had been refused by them, declared their neutrality, in the earnest desire to maintain friendly relations with both. It was their wish to exercise all friendly offices compatible with perfect impartiality. They further expressed their determination to exercise their duties and maintain their rights as neutrals. It gave me great satisfaction when your excellency was good enough to inform me in conversation that you knew of no other subject but the one under discussion on which Germany had any foundation for complaining of the attitude of this country as a neutral. It is not for the first time that I inform your excellency that her Majesty’s government have no jealousy of German unity. They believe it to be a great and worthy object for Germany to endeavor, with the consent of all its members, to consolidate its vast moral, intellectual, and physical powers. An ardent desire that not only the governments but the people of Great Britain and Germany should be in the most friendly relations induces me to repeat my belief that so just and thoughtful a nation as yours will not permanently entertain feelings of rancor against England, or, I might add, the United States, for adhering as neutrals to the practice which they had always adopted, and which, up to the outbreak of the present war, has been the theory and practice of both the belligerents.

“I have, &c.,

“GRANVILLE.”