[48] *Part IV. Various complaints of the United States against Great Britain; traffic in munitions of war.

Part IV.—Various complaints of the United States against Great Britain.
Traffic in munitions of war.
The fourth part of the Case of the United States contains a general and comprehensive statement of all the complaints which they conceive themselves to have against Great Britain. It will be found, on examination, that these complaints are of two classes. A small number of them have reference to the vessels enumerated at p. 320 of the Case, or some of them, and charge or suggest against Great Britain certain failures of duty in respect of those vessels. A much larger number have no reference whatever to those vessels, and do not charge or suggest any failure of duty in respect of them or any of them. The former class are within the scope of the reference to arbitration; the latter are not within it.

In the Case of the United States, however, these various complaints have been connected together in a narrative which draws no distinction between those which* are and those which are not relevant to the questions at issue.

Analyzing the narrative, we find that it is in substance as follows:

The government of the Confederate States sent to England, to Nassau, to Havana, and other places, agents instructed to purchase arms and munitions of war, with other things of which the Confederate States stood in need, and to procure ships suitable for warlike use. The persons sent to England on this errand were supplied with funds by remittances of specie and consignments of cotton, all necessary payments being made by drafts on a mercantile house in Liverpool, who were “depositories” of the funds. The whole southern coast being blockaded, it was necessary for the agents to send their purchases in such a manner as to elude the blockade. The British islands of New Providence and Bermuda offered, from their geographical position, peculiar facilities for the purpose, and advantage was taken of these facilities, large quantities of goods being sent thither from England, and forwarded thence to different confederate ports. Some of the ships employed in this traffic were the property of the confederate government; some others were chartered by its agents. The colonial authorities, it is affirmed, encouraged the trade, and placed obstacles in the way of the United States cruisers which were endeavoring to suppress it. It is added that the difficulties thus created were enhanced by an order of the British government, which directed that vessels of war should not be admitted, unless in case of distress, to the ports of the Bahama Islands. Meanwhile the confederate agents contracted with ship-builders in England and Scotland for ships suitable for war to be built to order, and purchased some others in the market. Three or four of these vessels they succeeded in sending to sea; the remainder were stopped. They also purchased guns, munitions of war, and ships’ stores, and dispatched them to various places—the Azores, the Madeira Islands, [Page 265] one of the Bahamas, the coast waters of France—where they were put on board of the vessels. English seamen were induced to serve in them, and were paid their wages through the instrumentality of the Liverpool house. The British government required, before it would order the seizure of a suspected vessel, evidence which could be produced in a court of justice. It declined during the war to propose to Parliament any alteration of the law applicable to such cases, stating that the law was sufficient, and that where it had failed the deficiency had been in timely proof that the acts complained of were within the law.

This is the substance of the complaints of the United States, stated in simple terms. Some of them are true, some erroneous, and the greater part irrelevant to the questions referred to the tribunal.

[49] It is the right of Great Britain to decline absolutely any discussion on the question whether, in taking no steps to prevent the conveyance of arms and munitions of war from British or colonial ports to the Confederate States, or in any matter whatever connected with that traffic, her government failed to discharge any international duty. But that something should here be said on this subject may perhaps be convenient to the arbitrators.

In the case presented to the tribunal on the part of Great Britain, the following propositions were laid down as agreeable to the principles of international law and the practice of nations:

A neutral government is hound to exercise due diligence, to the intent that no place within its territory he made use of by either belligerent as a base or point of departure for a military or naval expedition, or for hostilities by land or sea.

A neutral government is not, by force of the above-mentioned obligation or otherr wise, bound to prevent or restrain the sale within its territory, to a belligerent, of articles contraband of war, or the manufacture within its territory of such articles to the order of a belligerent, or the delivery thereof within its territory to a belligerent purchaser, or the exportation of such articles from its territory for sale to, or for the use of, a belligerent.

Her Majesty’s government has hitherto believed that, on this subject, no difference of opinion existed between Great Britain and the United States. By no power has the principle been asserted so strongly, unreservedly, and consistently as by the United States, and no nation has more freely acted upon it.1

[Page 266]

[50] These propositions are true without any qualification, and they have long been accepted and acted upon as true without qualification by the maritime powers of Europe and of the American continent. Each belligerent is at liberty to profit by the traffic, so far as it may be of use to him; he is free also to repress it, if he can, so far as it is of assistance to his enemy; and for this latter purpose he is armed by the custom of nations with exceptional powers, which exist only during the war, the power to detain, search, and capture on the high seas the vessels of nations with which he is at peace. The justification of the usage which intrusts these powers to the belligerent may be found in the fact that the repression of the trade, so far as it militates against his interests, is abandoned to him, and is not a duty of the neutral.

It is perfectly immaterial in the view of international law whether the contraband goods are purchased in the neutral market by persons who resort thither for the purpose, or are shipped to order, or consigned for sale to persons in the belligerent country. It is immaterial whether the purchases are effected by agents of the belligerent government or by private speculators. It is immaterial whether the ownership of the vessels in which the transportation is effected is belligerent or neutral; the only differences are that, in -the former case, the neutral supplies the merchandise alone, while in the latter he supplies both merchandise and carriage, hazarding the chances of detention and capture; in the former the cargo is liable to condemnation as enemy’s goods in an enemy’s ship; in the latter as contraband goods in the ship of a neutral. It is immaterial whether the ship which conveys them is chartered or owned by private persons or by the belligerent government itself, provided she be [Page 267] employed only for carriage and not armed for war. Nor, again, does the proximity of a neutral port, whence the trade is carried on, to either belligerent country, make any difference in the duties of the neutral government. Nor does it make a difference that the coast or harbors of either belligerent are blockaded, more or less effectively, by the other. As the neutral government is under no obligation to prevent breaches of blockade and the export of contraband when the transactions are distinct, so it is under no obligation to prevent them when the transactions are combined.

It is necessary to state this principle firmly and clearly; otherwise it would be at the mercy of every powerful belligerent. There never was a war in which some special circumstances might not be pleaded and special reasons given for setting it aside in the interest of one party or the other.

arms and military supplies purchased by the united states.

[51] At the commencement and during the course of the war both belligerents resorted to Great Britain for supplies of arms and military material, of which both were in need. The wants of the Government of the Union appear to have been at first even more pressing than those of its adversaries, since the Government which preceded that of Mr. Lincoln had removed, it is said, considerable quantities of arms from the northern arsenals to those in the Southern States.

On this subject the Secretary of War at Washington, in his [Page 268] report to the President on the 1st of July, 1861, made the following statements:

Arms and military supplies purchased by the United States. Previous to the early part of last year the Government had a supply of arms and munitions of war sufficient for any emergency; but through the bad faith of those intrusted with their guardianship, they were taken from their proper depositories and distributed through portions of the country expected to take part in the contemplated rebellion. In consequence of the serious loss thus sustained, there was available at the commencement of the outbreak a much less supply than usual of all kinds. But through the zeal and activity of the Ordnance Bureau the embarrassment thus created has been in a great measure overcome. As the capacity of the Government armories is not equal to the supply needed, even after having doubled the force of the Springfield armory, the Department found it absolutely necessary to procure arms to some extent from private manufacturers.* * * Some patriotic American citizens resident in Europe, fearing that the country might not have a sufficient supply, purchased, on their own responsibility, through co-operation with the United States ministers to England and France, a number of improved cannon and muskets, and at your instance this Department accepted the drafts drawn to defray the outlay thus assumed. A perfect battery of Whitworth six 12-pounder rifled cannon, with 3,000 rounds of ammunition, the munificent donation of sympathizing friends in Europe, has also been received from England.1

In his report of 1st December in the same year, the same minister said:

As stated in my last report, at the commencement of this rebellion the Government found itself deficient in arms and munitions of war, through the bad faith of those intrusted with their control during the preceding administration. The armory at Harper’s Ferry having been destroyed to prevent its possession and use by the rebels, the Government was compelled to rely upon the single armory at Springfield and upon private establishments for a supply of arms.* * * After having made contracts for arms with the private establishments in this country, it was deemed necessary by the President, to insure a speedy and ample supply, to send a special agent to Europe with funds to the amount of $2,000,000 to purchase more. I am gratified to state that he has made arrangements for a large number of arms, part of which have already been delivered. The remainder will be shipped by successive steamers until all shall have been received.2

A commission was appointed by the Government of the United States, in March, 1862, to audit the contracts made by the War Department for ordnance, arms, and ammunition, and in their report, which was laid before Congress, the following remarks occur on the steps taken to purchase arms abroad:

First, as to foreign arms: it was of course absolutely necessary to resort to these in equipping within a few months more than 500,000 men, and it was impossible in all the workshops of Europe to have had arms manufactured as rapidly as our public necessities required. Under such circumstances prices naturally rose, and inferior (often second-hand) arms had to some extent to be purchased. But these difficulties were greatly aggravated by the lack of system which prevailed. The States and the General Government entered the market together as rival purchasers, and thus the members of the same national family bid directly against each other. The folly of this is the more remarkable when it is remembered that these arms bought by the States were, in fact, for the use of the General Government, and will no doubt, in the end, be paid for by it. The General Government itself employed numerous agents not acting in unison, and. often becoming, therefore, competitors of each other. A few of these made purchases directly for the Government: the greater number sprang up in the shape of “middle men,” to whom, though not dealers in arms nor skilled in their value, contracts were awarded upon their own terms, only to be sublet to the actual importers.* * * * In regard to a considerable portion of these foreign arms, Government inspection was permitted in Europe before shipment, but so utterly inadequate and so incompetent was the force assigned to this duty that it became a mere empty form devoid of all utility or protection. Of this and other negligences and imprudences, the practical result has been that a large proportion of our troops were armed with guns of a very inferior quality; that tens of thousands of the refuse arms of Europe are at this moment in our arsenals, and thousands more still to arrive.2

Lord Lyons wrote to Lord Russell on the 4th of May, 1861: “Mr. Seward [Page 269] said to me on the 1st instant that perhaps he ought to have told me before that the United States Government had sent agents to England to purchase arms. He added that the agents would go on to France for the same purpose.”1

[52] It will be seen that in the report of Captain Huse, who is stated to have been the confederate agent sent to Europe for a similar purpose, he mentions the United States agents and the agents of individual Northern States as his most formidable competitors. “Their orders,” he says, “appear to have been unlimited, both as regards price and *quantity, and they paid cash in every instance.”2 Further on he mentions that “the United States agent, in this case the minister, Mr. Dayton, has purchased, within a few days, 30,000 old flint-lock muskets, which are to be altered before they are sent to the United States.”

The purchases of small arms and other military stores in England were partly made by authorized agents acting under the direct orders of the Government of the United States, partly by agents acting under the orders of the governors of particular States, and partly by mercantile firms, acting, however, in some cases under the authority of the Federal or States Government.

Colonel Thomas, of the United States Army, was in England during the war, and acknowledged that he had come over to superintend the purchases of military stores. He sought and obtained much information on this subject at the Government establishment at Pimlico. It appears, however, that the agent mentioned in the report of the Secretary of War was a Colonel G. L. Schuyler. He was, in July, 1861, appointed by the President of the United States “a duly authorized agent to purchase arms in Europe for the War Department.” He received his instructions from the Secretary of War, with a memorandum from General J. W. Ripley, of the Ordnance Department at Washington, specifying the arms to be purchased, viz: 100,000 rifle-muskets with the bayonets, 10,000 cavalry carbines, 10,000 revolvers, and 20,000 sabers.3 The financial arrangements for these purchases were to be made by the Secretary of the Treasury with Messrs. Baring, financial agents for the United States in London, and a credit of $2,000,000 was, as has been seen, appropriated for the purpose. The money was placed at the order of Colonel Schuyler and the United States ministers in France and Belgium.1 The arms were to be consigned to the care of Mr. Hiram Barney, collector of the port of New York. Colonel Schuyler proceeded to Birmingham, where, as appears from a report subsequently made by him in April, 1862, to the Secretary of War, he purchased of the Small Arms Association 13, 129 long Enfield rifles and 1,880 short Enfield rifles with saber bayonets—in all, 15,000, all of which arrived safely in the United States, consigned as directed in his instructions. He also made arrangements there with the American house of Van Wart, Son & Co., who had zealously cooperated with him to procure arms for delivery early in January, and who, between May, 1861, and February 15, 1862, ordered from the Birmingham Small Arms Company, and forwarded to Messrs. Baring, and Messrs. George Wright & Co., at Liverpool, for shipment to the United States, an aggregate amount of 26,540 rifles. From England he proceeded to the Continent of Europe, where he continued his purchases; and in a letter from the War Department at Washington to General [Page 270] Ripley, of the 18th November, 1861, information is said to have been received from him that the steamer City of Washington would leave Liverpool on the 6th of November, having on board 12,955 Enfield rifles from Dresden, 500 sabers, 800 revolvers, one case of bullet-molds. The steamer Saxonia, leaving Southampton on the 6th, was to bring 7,000 cavalry carbines and 500 sabers; the steamer Fulton, (November 12,) 20,000 percussion rifles; the steamer leaving Hamburg on the 17th of November, 30,000 more.1

The War Department had written repeatedly and pressingly to Colonel Schuyler on the subject of his mission. On the 2d of September the Secretary wrote: “We need arms; secure them at any reasonable price and forward without delay.”2 Again, on the 16th, “I trust that nothing will delay a prompt delivery of the arms which you have purchased. You will please express my acknowledgments to Messrs. Baring, Brothers & Co., for their prompt and patriotic action in facilitating your operations.”2 On the 8th of October, “I notice, with much regret, that there are no guns sent. * * * * * Prompt and early shipments of guns are desirable. We hope to hear by next steamer that you have shipped from 80,000 to 100,000.” And, on the 21st of October, “the Department earnestly hopes to receive by the Arago the 12,000 Enfield rifles, and the remainder of the 27,000, which you state you have purchased, by the earliest steamer following.* * * * Could you appreciate the circumstances by which we are surrounded you would readily understand the urgent necessity there is for the immediate delivery of all the arms you are authorized to purchase.”3

[53] In the summer or autumn of 1861 Mr. J. E. Schuyler and Mr. Tomes, of the firm of Schuyler, Hartley & Graham, of New York, visited Birmingham, and, after communicating with the principal rifle, bayonet, and sword manufacturers there, gave orders for as many of those articles as their respective manufactories were capable of supplying, *the goods to be paid for on delivery to them at a place to be subsequently named, or on shipment. Messrs. Schuyler and Tomes made no concealment of the fact that these arms were destined for the American Government, and they intimated their intention of continuing unlimited orders for a period of two years. They took warehouses in Birmingham for the receipt of the arms when completed, and shipped them through the agency of Messrs. Baring Brothers and Messrs. Brown, Shipley & Co., of Liverpool. It appears from the returns made to Congress of arms purchased by the United States War Department up to December, 1861, that 8,650 rifles and 232 revolvers of English manufacture had at that time been supplied by Messrs. Schuyler, Hartley & Graham; but Mr. Schuyler is also believed to have acted as agent for the purchase of arms for the State of New York. Messrs. Schuyler and Tomes were soon followed to Birmingham by a Mr. Lock wood, of New York, who had entered into a contract for the supply of rifles, bayonets, and swords to the War Department at Washington. He also gave unlimited orders for such articles, acting, however, to some extent, in concert with Messrs. Schuyler and Tomes, and shipping the goods through the agency of the same houses at Liverpool. The effect of these orders was to raise the prices in the Birmingham gun-trade to the extent of 20 per cent.; indeed, the price of rifles rose from 52s. to 75s. each.4

[Page 271]

On the 4th of December, 1861, it was deemed expedient under circumstances then existing, as a temporary measure of precaution to prohibit altogether, by proclamation, the exportation of arms and munitions of war, and Messrs. Schuyler and Tomes countermanded their orders in consequence, the former proceeding to Liege, the latter remaining at Birmingham. The proclamation was practically revoked in the course of January, and formally on the 7th of February, 1862. While it was in force it, of course, operated equally against both belligerents.

It appears from the report of the commissioner on contracts for arms that, by the concurrent action of the Secretary of State, Assistant Secretary of War, and Secretary of the Treasury, M. Laumont Du Pont, of the firm of E. J. Du Pont & Co., of Wilmington, Delaware, had twice visited England, furnished with a credit of £82,700 7s. 1d. upon Messrs. Baring Brothers, and purchased and shipped saltpeter at a cost of £79,699 16s. 8d.1 The large purchases of saltpeter which were made toward the close of November, 1861, drained the whole English market, and it was thought prudent to issue a proclamation prohibiting the exportation of that article, which was subsequently revoked at the same time as that respecting the export of arms. Mr. Adams wrote to Mr. Seward on the 24th of January, 1862— “The only event of any importance connected with American affairs that has happened during the last week is the revocation of the orders prohibiting the exportation of arms and munitions of war. This will release the large quantity of salt-peter in the hands of parties here, and will probably renew the activity of the confederate emissaries in forwarding supplies to the insurgents.”2 Mr. Seward replied, on the 13th of February— “It affords us pleasure to know that the inhibition against the exportation of saltpeter, which was so unnecessary, has been rescinded.”3

Mr. F. B. Crowninshield is understood to have acted as agent for the States of Massachusetts and Ohio. His address in London was at the office of the United States consulate, No. 67 Gracechurch street. The Birmingham Small-Arms Company forwarded by his order 16,400 rifles to the care of Messrs. Baring Brothers, at Liverpool, for shipment to the United States, between the months of May and December, 1861. Mr. Crowninshield also ordered large quantities of arms and 10,000 sets of military accouterments from firms in London, which were forwarded and shipped from Liverpool and Southampton.4

Besides these purchases many were made by private firms, who sold or contracted to supply arms to the Government of the United States.

On the 14th of January, 1862, Mr. Donald McCay wrote to Earl Russell, stating that he had lately come to England with the intention of purchasing marine steam-engines and iron armor-plates for men-of-war ships, but that the manufacturers who could furnish them objected to enter into any contract on account of the possible risks in shipping these articles. He inquired whether Her Majesty’s government would allow the shipment of them to the United States. Messrs. James Jack & Co., a manufacturing firm of Liverpool, wrote, on the 16th of the same month, stating that they were offered orders on behalf of the Government of the United States for the construction of gun-boat towers and armor-plates, and asking whether it would be considered improper for them, as British subjects, to undertake the execution of these works at the time. Both applicants were informed that there [Page 272] was not any impediment to their undertaking such works or shipments.1

[54] The Liverpool, New York and Philadelphia Steamship Company addressed Lord Russell *on the 31st of January, on the question of the exportation of arms to the United States. They said that, on the issue of the Queen’s proclamation of the 13th May, 1861, they had given notice to all their shippers that they could not carry contraband of war. They had subsequently been asked to carry forward the cargo of the steamer Bremen, built in England, but sailing under the Bremen flag, and a competitor with them in the Atlantic trade, which they had engaged to do, but finding on the arrival of the cargo at Hull, en route for Liverpool, that it comprised about 600 cases of rifles, they, refused to carry them. A somewhat similar case had occurred with goods from Antwerp. On their refusing to carry these goods they had received information from the Continent that, if they would not do it, the goods would be sent to London, and thence by railway to Southampton, whence there was no difficulty in shipping them by the Hamburg company’s steamers, (built in England, but sailing under the Hamburg flag,) and they had reason to believe that this course had been regularly adopted, and that the arms they had .refused to carry the day before were being shipped that day by another British steam-conveyance from Liverpool. They found that their own refusal had tended to prejudice them with their customers, and particularly with the United States Government, who had transferred the mail service from them to the German companies. The reply to the company, dated the 12th of February, merely referred them to the Gazette of the 7th of that month, whereby the temporary prohibition of the export of munitions of war had been formally removed.2

A statement made by Lord Russell to Mr. Adams, and the reply of the latter, are recorded in a dispatch to Lord Lyons of the 19th December, 1861, as follows:

In regard to the export of arms and ammunition to the Confederate States, I had lately read the opinion of the attorney-general,3 and believed it was in entire conformity with the provisions of the foreign-enlistment act: warlike equipment of a vessel was prohibited; the loading a vessel with arms and ammunition was not prohibited. But in point of fact a, much greater amount of arms and ammunition had been sent to the Federal States, where there was no obstacle to the export or the import, than to the ports of the Confederate States, which were blockaded. Mr. Adams admitted this to be the fact, and said he had refrained from pressing a more rigorous compliance with the foreign-enlistment act for this reason.4

Lord Russell returned to the subject in a conversation which was reported by Mr. Adams to Mr. Seward on the 22d May, 1862.5 Mr. Adams, in compliance with instructions from his Government, had pressed on Lord Russell the expediency of revoking the recognition of the belligerent status of the confederate government, and had mentioned, in connection with this subject, the irritation produced in the United States by the reports of supplies furnished by private persons in England to the confederates. Lord Russell said “that large supplies of similar materials had been obtained in England on the part of the United States, which had been freely transported and effectively used against the insurgents.” “I answered,” said Mr. Adams, “by admitting that at one time a quantity of arms and military stores had been [Page 273] purchased here as a purely commercial transaction, for the use of the Federal Army, but that I had early objected to this practice for the reason that it prevented me from pressing my remonstrances against a very different class of operations carried on by friends and sympathizers with the rebels in this island, and it had been discontinued. We had, indeed, purchased largely in Austria, but that government had never given any countenance to the insurgents.” Lord Russell’s views are given in a note to Mr. Adams of the 17th May, inclosed in this dispatch.

It may be observed that the agents of the confederate government, if the correspondence presented by the United States is to be believed, had themselves at this time been drawing supplies from Austria, and that Major Huse had been endeavoring to ship ten batteries of Austrian field-guns at Hamburg, and was about to invest in 20,000 Austrian rifles then in the Vienna arsenal.1

Mr. Adams was, however, mistaken in supposing that the practice of buying arms in England for the United States Government had been discontinued.

[55] Messrs. Naylor, Vickers & Co., of New York, Liverpool, and London, bought and snipped to the United States large quantities of small-arms. They were supplied from Birmingham alone with 156,000 rifles between June, 1862, and July, 1863. They acted very extensively as agents of the United States Government, and submitted to that Government large proposals from the Birmingham Small-Arms Company. The Assistant Secretary of War at Washington, in a letter addressed to them on the 20th October, 1862, *directly sanctioned an arrangement for the supply of 100,000 rifles, and the acceptance of this order was duly notified to the Secretary of War by a letter from Birmingham, dated November 4, 1862. The arms were sent to Liverpool for shipment. In December, 1863, fifty 68–pounder guns were proved at the royal arsenal at Woolwich, at the request of Messrs. T. and C. Hood, and after proof taken away by Messrs. Naylor & Co., and shipped to New York. Mr. Marcellus Hartley, of the firm of Schuyler, Hartley & Graham, already mentioned, was also a large purchaser of small-arms in London during the latter half of the year 1862.2

The general results of these operations may be traced in the official returns of exports from Great Britain to the northern ports of the United States, published by the board of trade.

These show that, whereas the average yearly exports of small-arms to those ports for the years 1858, 1859, and 1860, were 18,329, they rose, in 1861, to 44,904; in 1862, to 343,304; and amounted, in 1863, to 124,928. These are the recorded shipments of small-arms; but there is reason to believe that other shipments, to a considerable extent, were made under the denomination of hardware. Of exports of parts of arms there is no record prior to 1862. In that year they were valued at £21,050; in 1863, they rose to £61,589; in 1864, they still amounted to £10,616; and the average for subsequent years has sunk to £4,249.

Of percussion-caps, the average export in the years 1858, 1859, and 1860, was 55,620,000; in 1863 it rose to 171,427,000; and, in 1864, was 102,587,000. Of cannon and other ordnance, the exports in the year 1862 alone were valued at £82,920; while the aggregate value of the exports for the other nine years, from 1858 to 1861, and from 1863 to 1867, was but £3,336.

The exports of saltpeter for the years 1858 to 1861 had averaged 248 tons yearly. The purchases for the United States Government raised [Page 274] the amount to 3, 189 tons for the year 1862 alone. From 1863 to 1867 the yearly average has again sunk to 128 tons. In addition to the exports from England, there was shipped from India, direct to the northern ports of America, a total of 39,816 tons, between the years 1860 and 1866, both inclusive.

The amount of lead shipped, which had averaged 2,810 tons yearly, rose, in 1862 and 1864, to 13, 148 and 11,786 tons respectively.

The exports of ready-made clothing, apparel, &c., also rose, in 1863 and 1864, to double the average amount, in consequence, as may legitimately be presumed, of the supplies required for the United States Army.

It is estimated that the extra supplies of warlike stores thus exported to the northern ports of the United States during the civil war represent a value of not less than £2,000,000, of which £500,000 was the value of muskets and rifles alone.

On referring to the published statistics of imports into the United States, a similar increase will be observed. The value of arms imported from England into the United States is there given for the years ending June 30, 1860 and 1861, at $281,998, and $257,055 respectively. In the succeeding year the imports of arms amounted to an estimated value of $1, 112,098; in the year ending June 30, 1863, to $717,409; and in that ending June 30, 1864, to $409,887. But, in addition to these entries, there is a table given in the returns of duty-free imports, under the heading of “Articles of all kinds for the use of the United States.” During the two years ending June 30, 1860 and 1861, no such articles were returned as imported from England; but in the years ending June 30, 1862 and 1863, amounts of $3,316,492 and $6,778,856 are entered under this heading; and in the two succeeding years the articles thus imported from Great Britain still reached the estimated value of $1,568,407 and $1,853,773 respectively. That a large proportion, if not the whole, of these imports consisted of materials for the supply of the military forces of the United States cannot admit of a doubt.1

[56] We see then that, during the civil war, arms and military supplies of all kinds in very large quantities were purchased in England, France, Austria, and other neutral countries by the Government of the United States; that they must have exceeded in amount any supplies which could reach the Confederate States; that these purchases were of the most pressing necessity, especially during the earlier years of the war; that they were effected by agents employed by that Government, some of whom were officers in its military service; that arrangements were made for the regular shipment from England to the United States of the goods so purchased from time to time; and that the goods purchased in England were paid for through the financial agents of the American Government in England. In the sense, therefore, in which these expressions are used by the *Government of the United States in its case, that Government had in England during the war a branch of its War Department and a branch of its Treasury—that is, persons employed by the War Department in selecting, ordering, and procuring arms and military supplies, and causing them to be shipped to America, and financial agents of the Treasury, through whom its payments were made, and who were provided by it with funds for that purpose. In the sense in which Great Britain is said to have become the arsenal and treasury of the Confederate States, she became the arsenal and treasury of the United States. Had the confederacy and its agents filled, in the foregoing transactions, the parts actually sustained by the [Page 275] United States and their agents, we should have a narrative differing in no material respect from the story of confederate purchases and shipments told in the American Case.

arms and military supplies purchased by the confederate states.

Arms and military supplies purchased by the Confederate States. The Government of the United States has not furnished the arbitrators with an account of the names and operations of the agents employed by it for the above-mentioned purposes during the war; and it has, therefore, been necessary to supply that omission, although the means of doing so possessed by Her Majesty’s government are very imperfect. Of the operations of the persons employed by the other belligerent, the Government of the United States has, on the other hand, given a very long and circumstantial history, purporting to be drawn from the papers which came into its possession at the end of the war. It is not, and indeed it could not be, pretended that the correspondence extracted from these papers was in any way known to the British government. Nor has the Government of the United States furnished the arbitrators with any means of judging whether the letters are authentic, or the facts stated in them true, or the persons whose names purport to be attached to them (persons entirely unknown to the British government) worthy of credit. Her Majesty’s government thinks it right to say that it attaches very little credit to them.

There is, however, ho reason to doubt that the confederate government, during the whole course of the war, effected purchases of arms and munitions of war to a considerable amount through its agents in England, France, Austria, and elsewhere. And it is now well known that, as its financial agents for this and other purposes, it employed the mercantile house of Fraser, Trenholm & Co., which was established at Liverpool, in connection with a firm at Charleston. The circumstance is stated as follows in the Case of the United States: “Before or about the time the insurrection broke out, and, as the United States believe, in anticipation of it, this house (the Charleston house of John Fraser & Co.) established a branch in Liverpool, under the name of Fraser, Trenholm & Co. Prioleau was dispatched thither to take charge of the Liverpool business, and became, for purposes that may easily be imagined, a naturalized British subject.”1 Her Majesty’s government finds, on inquiry, that Prioleau, in fact, settled himself as a merchant in Liverpool in 1854, and remained in England, except during a temporary absence of a few months, from that time till June, 1863, when he applied for naturalization, stating, in his application, that he had been a resident householder for eight years, had married an English wife, and was desirous of acquiring landed property in England, and residing there permanently.2 What further motives for this step a fertile imagination might discover Her Majesty’s government cannot say. The advantages conferred at that time by naturalization in England were the legal capacity to hold immovable property, and to register vessels as a British owner. None of the vessels, however, to which this inquiry relates, were registered in the name of Prioleau, nor in that of his firm. In truth, all of them, except the Shenandoah, with which the firm appears to have had nothing to do, had sailed long before Prioleau became a [Page 276] British subject. The motives stated in the application were probably the real ones, since the applicant appears to have continued to reside in England.

It would be a waste of time to follow the Government of the United States into the details of the various shipments made from England on confederate account. Both belligerents were left free to purchase and ship munitions of war, and both availed themselves of that liberty. The suggestion that such transactions were in progress called for no inquiry on the part of the British government, and the transactions themselves, had they been known to it, would have called for no interference.

[57] The same observation applies to the expedients for raising money which were adopted during the later years of the war. The Confederate States, being debarred by the blockade from exporting their produce to Europe, endeavored to procure funds in England, France, and elsewhere, by hypothecating stocks of cotton, stored for exportation, and to be *delivered after the conclusion of the war. The agent employed in England for this purpose was a merchant resident at Liverpool. Other agents were employed in Paris. No action or suit at law founded on transactions of this kind could have been sustained in England, either by or against the confederate government; since it had not been recognized by Great Britain. But it was not the duty, nor was it within the legal power of the British government to prohibit or prevent them, as it could not have prevented its subjects from subscribing to the vast war-loans which were raised from time to time by the Government of the United States, and were largely held in Europe. Those who advanced their money to the Confederate States did so at the risk of losing it, if the confederacy should be overthrown, .and they have lost it accordingly.1

Pressed by the difficulty of distinguishing between their own operations in Europe and those of the Confederate States in such a manner as to make it appear that the British government was bound to give free scope to the former and repress the latter, the United States appear to imagine that they have found such a distinction in two circumstances. One of these is, that the needs of the confederacy were, as they allege, more urgent than those of the Union; the former could only obtain their military supplies from abroad; the latter could manufacture some of theirs at home.2 The other is, that the United States, having the command of the sea, could transport the goods purchased by them freely and openly, or (as it is expressed) “in the ordinary course of commerce;” while the confederates were obliged to “originate a commerce for the purpose” —that is, to get their goods transported by way of Nassau and Bermuda, which are commonly places of no great trade— and further to make use of those concealments by which the traffic in contraband of war, when not protected by a powerful navy, usually tries to elude the vigilance of the enemy’s cruisers.

[Page 277]

Are we then to understand that, according to the views put forward in the Case of the United States, the “strict and impartial neutrality towards both belligerents,” which it is the duty of a neutral government to maintain, obliges it to find out which of the two stands in the greater need of supplies, and consists in lending aid, by measures of repression, to the belligerent whose force is the greater and his wants the less pressing of the two, and thus assisting him to crush more speedily the resistance of his weaker enemy? Her Majesty’s government is unable to assent to this novel opinion, advantageous as it would doubtless prove to states which, like Great Britain, possess a powerful navy. To hold an even hand between the two; to leave the trade open to both equally or close it to both alike; to leave the stronger free to profit by his strength, and the weaker to elude, as best he may, the superiority of his enemy on the high seas, has commonly been regarded as the only course consistent with impartial neutrality, and this was the course steadily pursued by Great Britain.

[58] The transportation of military supplies was equally a contraband commerce, whether carried on openly or covertly, from Liverpool or London or from Nassau. It is asserted by the United States that the contra-band trade between England and Nassau was “covered by the British flag,” and that this, coupled with the protection afforded by Her Majesty’s government to the confederate agents in England, “deprived the United States of the benefit of their superiority at sea.”1 Her Majesty’s government does not understand the United States as alleging either that any protection was afforded to the agents of the Confederate States in England which was not extended also to those of the United States, or that contraband trade under the British flag was protected against search and capture at sea. Both of these assertions would be unfounded: but the language employed is calculated to produce this erroneous impression on the minds of the arbitrators. The agents of both parties in Great Britain enjoyed alike that protection, and no more, which persons resident or commorant here derive from the laws under which they live. Ships carrying between Liverpool or London and Nassau military supplies destined for the Confederate States were not, in fact, protected by the British flag, but were left to be dealt with on the principles of international law, as administered in the prize-courts of the United States, equally with those bound directly for confederate ports. Her Majesty’s government, with a powerful navy at its command, abstained from all interference, confining itself to a remonstrance, conveyed in very moderate terms, when there appeared reason to apprehend that *the United States cruisers, in their eagerness to make prizes, might harass unduly the regular and legitimate commerce of Great Britain.

blockade-running and the nassau trade.

Blockade-running and the Nassau trade. The sea-coast of the Southern States being blockaded, though the blockade was for a long time imperfect, importers of goods into those States were exposed, if the goods were contraband, to a double risk of capture, which increased or diminished according to the length of the voyage. The island of New Providence, from its comparative nearness to the blockaded coast, offered some special facilities for the traffic, and large quantities of goods were sent to it as the war went on, with a view either to their being sold in the island to customers buying [Page 278] for the southern market, or to their being forwarded direct to one or other of the blockaded ports. Havana and Cardenas, in the Spanish island of Cuba, were made use of for a like purpose, and a confederate agent is stated to have been resident there. In this there was nothing which the British government was bound or legally empowered to prohibit, nor was any such obligation incumbent on the government of Spain. Persons trading either with the Southern States or with those which adhered to the Union were free to use Nassau, as they were free to use any other port in the British dominions convenient for their purpose. Traffic of the former kind was difficult and precarious, while that of the latter kind was safe and easy, and could be carried on from Liverpool or Halifax with more convenience and security than from Bermuda or Nassau. But this difference imposed no special obligations on the British government in regard to either the one or the other.

One tangible ground of complaint the United States believe themselves to have discovered in the circumstance that merchant-ships arriving at Nassau were able to break bulk there, and transship their cargoes without a bona-fide importation into the colony. It is represented that this became a constant practice with vessels transporting goods for the confederates; and the Government of the United States “asks the tribunal to find” that the permission to do it “was a violation of the duties of a neutral.” That the tribunal is invested with no authority to decide this question, either in favor of the United States or against them, it is needless to say.

It is asserted by the United States that the permission was given (or, in other words, that a previously existing prohibition of transshipment within the limits of the colony was removed) by an act of the colonial government. In proof of this it relies upon an intercepted letter, purporting to be written by a confederate agent. That it was an indulgence granted, exclusively or especially, to vessels trading with the Confederate States, is not asserted; though, under the circumstances of the case, it might be expected to work principally in their favor.

No information of such an act on the part of the authorities of the colony ever reached Her Majesty’s government. It was not complained of at the time either by the consul at Nassau or by the minister of the United States in London, although the fact that transshipments were taking place was at a later period mentioned as a grievance. From the general character of Mr. Whiting’s correspondence, and from his activity in discovering injuries and affronts even where none existed, there can be no doubt that, had the permission been given, and had it possessed the importance which the United States now attributes to it, he would instantly have made it a matter of expostulation and complaint, and it would have been promptly brought to the notice of Her Majesty’s government by Mr. Adams. But even the Government of the United States itself, which was in constant correspondence with Mr. Whiting, appears to have known nothing about the matter, and now produces, in support of a complaint which it regards as serious enough to demand a judgment from the tribunal, no evidence beyond a loosely-worded sentence occurring in a letter purporting to be written by a confederate agent; while of this letter, and the time at which it came into the possession of the United States, no better account is given than that it is one of a large number “captured at the taking of Richmond and at other times.”

Her Majesty’s government has now ascertain ad on inquiry that the statement is erroneous. The fiscal regulations of the colony prohibited the transshipment of goods within its limits unless the goods were landed [Page 279] for examination by the officers of customs. Goods so landed might be immediately reshipped from the same wharf for exportation in the same vessel, or in others, at the choice of the shipper. The prohibition (which existed only for fiscal purposes) might, in any case, be dispensed with by permission granted by the receiver-general. This permission had been customarily granted as a matter of course in the case of goods stated to be in transit, and it was accorded frequently during the war.

[59] The first application was made on the 19th December, 1861, in the case of the *Eliza Bonsell, a vessel laden, not with contraband of war but with an assorted cargo; and after a reference to the governor and council, it was granted, the receiver being satisfied that the goods could be examined on board as well as if they had been placed on the wharf.1 No permission appears to have been granted in the case of the Gladiator, nor does it appear whether her cargo was or was not landed before exportation. The prohibition was not removed or modified, and no change was made in the regulations. Had it been removed, however, the fact would have had no importance, since there was nothing to prevent cargoes landed from being immediately reshipped and distributed into smaller vessels; and the authorities were not at Nassau, any more than at Liverpool, authorized to prevent the exportation or transit of articles contraband of war.

[60] That cargoes were, in fact, frequently transshipped, either with or without an intermediate landing, Her Majesty’s government has no doubt, though the statements made in the Case of the United States are in many instances not borne out, when compared with the documents produced in proof of them.2 The Government of the United States has, [Page 280] however, omitted to inform the arbitrators of the means which were adopted by itself, as a belligerent power, to extinguish the traffic with the South, of which it complains. These means consisted in a rigorous extension of the belligerent right to capture neutral vessels on the high seas for the conveyance of contraband and for intended breaches of blockade, an extension previously unknown to international law. Before this war, it had been commonly assumed that, where a neutral vessel was bound from one neutral port to another, a prize-court would not inquire into the destination of the cargo. The American courts introduced the principle that, if sufficient evidence could be discovered (and the evidence deemed sufficient was often very slight) of an intention that the cargo should ultimately be delivered at a port of the belligerent, the cargo, and in some cases the ship also, became liable to condemnation. Goods, therefore, on the voyage between a British port and Nassau were equally liable to capture with goods on a direct voyage from Nassau itself or from Liverpool to a southern port, if the prize-court had any reason to suppose that to a southern port they were intended ultimately to go, and not to the Nassau market for bone-fide sale there. And the ship shared the fate of the cargo, unless there were reason to believe that the owners were ignorant of the ulterior destination of the latter, and had not hired their vessel with a view to it. These decisions, to which no opposition was offered on the part *of Her Majesty’s government, destroyed the advantage which the proximity of a neutral port offers to a blockade-runner, in diminishing his risk of capture by diminishing the length of his voyage. The only advantage which remained was that of transferring the cargoes, whether by means of a sale in the market or otherwise, to smaller vessels of lighter draught and greater speed, which could make their way into the blockaded ports, not, however, as it appears, by means of the inland waters along the shore, (which were chiefly used during the first year of the war,) but by running past the blockading-vessels. In truth, when the blockade of these ports became really effective, the value of a neutral port at the distance of a two days’ voyage was lost to the blockade-runner; it was valuable to him only as long as they were not effectually blockaded. To assist the blockade, however, was not the duty of the neutral government.

false importance ascribed to the proclamation of neutrality.

False importance ascribed to the proclamation of neutrality, In the Case of the United States some special importance appears to be ascribed to the fact that the transport of contraband of war and breaches of blockade had been denounced as unlawful in that proclamation of neutrality to which the American Government takes so much exception. It can scarcely be necessary to expose so transparent an error. The proclamation of neutrality [Page 281] did not create, nor purport to create, any new prohibitions. In England the sovereign cannot, by proclamation, either enact laws or abrogate them; all that he can do is to make public the provisions of existing laws, and enforce them in such a manner as may be necessary. The effect of this proclamation was solely to warn British subjects that they would incur, by doing certain things, penalties imposed by the law of nations, against which their government would not protect them, and, by doing certain other things, penalties imposed by the municipal law of Great Britain, which the government would enforce against them. But Her Majesty neither did nor constitutionally could undertake, by issuing it, any international obligations toward either belligerent beyond such as are common to all neutral powers. It has been the practice in the United States to issue proclamations, different, perhaps, in phraseology, but in substance the same. In these, obedience to the law of nations is “enjoined;” the carriage of contraband and breaches of blockade are denounced as “misconduct,” and warning is given that persons “so misconducting themselves” will do it at their peril. But the American Government does not appear to have understood that by these warnings it bound itself to prohibit or even to discountenance the acts thus denounced, or to interpret with any peculiar strictness its own neutral duties under the law of nations.1

knowledge of facts imputed to the british government.

Knowledge of facts imputed to the British government.
It is not material to pursue the question how far either the transactions of the confederate government and its agents, or those of the Government of the United States and its agents, in relation to the purchase and transportation of arms and munitions of war, could have been known, by inquiry, to the government of Great Britain. Had they been known to it, no obligation to prevent them would have arisen; no obligation, therefore, arose to prosecute inquiries respecting them. It is said2 that the appointment of the confederate agents, their acts, and the powers intrusted to them, were open and notorious, and that, “if there was any pretense of concealment at the outset, it was soon abandoned.” But it appears from the very documents relied on, that these agents took the greatest pains to keep all the details of their proceedings secret.3 “The United States ministers to England, France, and Belgium,” wrote one of them in July, 1861, “have been very active in their endeavor to discover what the agents of the confederacy are effecting. They have agents employed for no other purpose, and it is of the highest importance that these should be kept in ignorance of all the acts of any agent of the confederacy. Any person that has ever become acquainted with Europe from personal experience knows how difficult it is for a stranger to keep his actions secret when spies are on his path.” And, in March, 1862, the same agent writes,4 “I beg to suggest to the department the importance of everything relating to these shipments being kept in secret,” adding, as before, that his “steps are narrowly watched by the agents of the United States.” Her Majesty’s government did not resort, and [Page 282] it certainly was not bound to resort, to the *means which are here stated (whether truly or not) to have been employed by ministers of the United States; such knowledge as could be derived from secret information or intercepted letters it did not possess; and, in the unauthenticated statements which Mr. Adams, withholding the names of his informants, furnished from time to time to Earl Russell, it had no adequate ground for inquiry or action.

It may, however, be convenient, since the Government of the United States has charged Earl Russell with having neglected to make inquiry, and contented himself with announcing a “condition of affairs at Nassau” which was “imaginary,”1 to state what was actually done by Earl Russell upon the receipt of Mr. Adams’s representation, what has been previously done, and what were the facts existing at the time.

The first dispatches received by the government from the colony relating to vessels under the confederate flag, or engaged in trade with the Confederate States, were dated the 21st of June and the 8th of August, 1861, and forwarded representations which the administrator of the Bahamas had received from the United States consulate at Nassau, respecting the arrival at that port of merchant-vessels under the confederate flag, and the refusal of the masters to deposit their papers at the consulate, To these the administrator had replied that the facts alleged did not justify any interference with the vessels. A dispatch was also received from the governor of Barbados, reporting the pretensions which had been advanced on the same subject by the United States consul there, and the course of conduct which “the governor meant to pursue. These dispatches were referred to the law-officers of the Crown, who reported that the governor had, in their opinion, taken a, correct view of his position and duty, and might be instructed that no foreign consul had any jurisdiction or power to seize any vessel (under whatever flag) within British territorial waters. With respect to supplies, even of articles clearly contraband of war, (such as arms or ammunition,) to the vessels of either party, the colonial authorities, in the opinion of the law-officers, could not interfere, unless anything should be done in violation of the foreign-enlistment act; and, as regards the supply of articles ancipitis usus, (such, for instance, as coal,) there was no ground for any interference whatever. Instructions were sent in this sense to the governors of the British West Indian colonies on the 15th of November, 1861.2

On the 1st October, 1861, Mr. Adams addressed a note to Lord John Russell, forwarding a copy of an intercepted letter from a Mr. P. Baldwin, living at Richmond, Virginia,3 “in the service of the insurgents,” addressed to Mr. Adderly, of Nassau, from which he said that it appeared that Nassau had been made to some extent an entrepôt for the transmission of articles contraband of war from Great Britain to the ports held by the insurgents. It would be a great source of satisfaction to the Government of the United States, Mr. Adams said, to learn that Her Majesty’s government felt itself clothed with the necessary power to prevent the exportation of such contraband for the colonies for the use of the insurgents, and that it would furnish the necessary instructions to the local authorities to attain that end. Mr. Baldwins letter stated that the secretary to the navy of the Confederate States had ordered from England, to be shipped to Nassau, a quantity of arms and powder. Mr. Baldwin had recommended that they should be consigned [Page 283] to Mr.Adderly, asked him to take good eare of them, said he would be with him soon, and would expect his aid in transshipping them. A copy of this communication was sent to the colonial office on the 8th of October, with a request that inquiry might be made, and Mr. Adams was so informed.

The reply of the administrator of the Bahamas, dated the 20th November, 1861, was received at the colonial office on the 31st December, 1861. The administrator forwarded a letter from Mr. Adderly, expressing his surprise that the United States Government should have countenanced the intercepting of his letter, and stating that no warlike stores had been consigned to him from Great Britain for transport to the Confederate States or to any other place. With this was inclosed a report from the receiver-general at Nassau, to the effect that no warlike stores had been received at that port, either from the United Kingdom or elsewhere, neither had any munitions of war been shipped from Nassau to the Confederate States. The substance of this information was conveyed to Mr. Adams in a note from Lord John Russell on the 8th of January, 1862.1 It was not, as stated in the Case of the United States, “the announcement of an imaginary condition of affairs;” it was the simple truth at the time when the dispatch was written. The first arrival in the port of Nassau of a vessel suspected of being loaded with arms and munitions of war for the Confederate States was on the 9th of December, 1861. The vessel in question was the Gladiator.2

[62] *It was well known, undoubtedly, to the colonial authorities and to Her Majesty’s government that, during a considerable part of the time for which the war lasted, much traffic was carried on between England and the islands of New Providence and Bermuda, and from thence to ports of the Confederate States; and the colonial newspapers during that period contained a multitude of advertisements offering for public sale the cargoes of the vessels arrived or expected to arrive from various English ports, from Havre, New York, and other places. Foreign goods of all kinds being shut out from the Confederate States by the blockade of an immense sea-board, it was inevitable that such a commerce should spring up, and should be busily carried on by speculators and adventurers.

It was known also that some part of this trade consisted of arms and munitions of war. But these facts did not call for inquiry. It was not the duty of the British government to inquire who were interested in particular cargoes, or by whom particular vessels were owned or chartered. A vessel owned, or chartered, or controlled, wholly or in part, by a belligerent government, and employed in conveying merchandise from and to foreign ports, is liable to capture by the other belligerent as enemy’s property, or as employed in the enemy’s service, but she is not a transport in the ordinary or proper sense of the word, even though, part of the cargo may consist of articles contraband of war. To repress the trade, so far as it was not a bona-fide trade between neutral ports, carried on in neutral ships, was the business, not of Great Britain, but of the United States; and they did repress it accordingly, by a strict and rigorous exercise of the belligerent rights of blockade, visit, search, and capture.

In truth, however, although it is several times implied, and once asserted, that the British government had been repeatedly informed, and repeatedly furnished with evidence, that some of these vessels were the [Page 284] property of the confederate government, and ought to be regarded as “transports,” no representation was ever made on this point till the month of January, 1864, when some copies of letters taken from a prize were sent by Mr. Seward to Mr. Adams. Nor was this information furnished as a ground for legal proceedings. Mr. Seward only intimated that, with the knowledge thus acquired by this Government, “the policy pursued by the United States in regard to assaults of the blockade would be modified.1 It supplied, indeed, no evidence at all, except against two vessels which had been already captured. In fact, it was not known then, and it appears to be but imperfectly known even now, when the confidential papers and documents of the confederate government have fallen into the hands of the Government of the United States, what vessels the confederate authorities had control over or interest in at different times, whether as owners, charterers, or freighters, and how far their control or interest was shared by private speculators.

The Case of the United States abounds throughout with assertions to the effect that Her Majesty’s government must or ought to have been aware of all, and more than all, that became known during the later period of the war, or is known now. What might possibly have been discovered by an incesssant and indiscriminate use of every means by which secret information may be obtained, Her Majesty’s government cannot say; but a slight experience of administration, a very slender acquaintance with judicial records, is sufficient to convince any one that, in matters of this nature, secrecy or disguise, where there is any motive for securing it, is not difficult of attainment; and that a lurking and undisclosed interest in a ship, a cargo, a contract, a trading-speculation, is a thing easy to concceal, and hard to detect. Such experience can hardly be quite unknown to the Government of the United States.

During the whole period of the civil war the sea was open to the United States, and they had access, in common with other nations at peace with Great Britain, to the workshops, markets, and sea-ports of this country. What military supplies they purchased here, how they paid for them, in what vessels and in what manner they transported them to America, were matters into which Her Majesty’s government never deemed itself bound to make inquisition. The complaint they make against Great Britain is really this, that the liberty allowed to them was allowed equally to the Confederate States.2

  1. It can hardly be necessary to cite examples. The emphatic enunciation of this doctrine in Mr. Jefferson’s letter to Mr. Hammond (15th May, 1793) has been often referred to:

    “The purchase of arms and military accouterments by an agent of the French government in this country, with an intent to export them to France, is the subject of another of the memorials; of this fact we are equally uninformed as of the former. Our citizens have been always free to make, vend, and export arms. It is the constant occupation and livelihood of some of them. To suppress their callings, the only means perhaps of their subsistence, because a war exists in foreign and distant countries, in which we have no concern, would scarcely be expected. It would be hard in principle and impossible in practice. The law of nations, therefore, respecting the rights of those at peace, does not require from them such an internal derangement in their occupations. It is satisfied with the external penalty pronounced in the President’s proclamation, that of confiscation of such portion of these arms as shall fall into the hands of any of the belligerent powers on their way to the ports of their enemies. To this penalty “our citizens are warned that they will be abandoned, and that even private contraventions may work no inequality between the parties at war, the benefit of them will be left equally free and open to all.”—(Appendix to British Case, vol. v, p. 242.)

    It will be observed that this was subsequent to a proclamation issued by the President, in which conveyance of contraband to a belligerent was specified as among the acts involving a liability to “punishment or forfeiture under the law of nations,” and notice was given that prosecutions would be instituted against all persons who should, within the cognizance of the courts of the United States, “violate the law of nations with respect to the powers at war or any of them.” It was written in answer to a representation by the British minister to the effect that he had “received information from various respectable quarters, that a considerable quantity of arms and military accouterments, which an agent of the French government has collected and purchased in this country, is now preparing to be exported from New York to France.”

    “The secrecy with which a transaction of this nature is generally conducted, has rendered it impossible for the undersigned to procure precise proof of it. Entertaining, however, no doubt of the existence of the fact, he esteems it his duty to lay it immediately before the Executive Government of the United States, which he trusts will deem it more expedient (if any measures for the purpose can be devised) to prevent the execution of this contravention of the President’s proclamation than to expose vessels belonging to its citizens to those dangers and difficulties which may result from the circumstance of their carrying articles of the description above mentioned.” (Mr. Hammond to Mr. Jefferson, May 8, 1793.)—Appendix to British Case, vol. v, p. 241.

    Mr. Hammond’s cautious language shows that he understood the effect of a proclamation of neutrality as calling attention to the existing prohibitions, not as creating new ones. The Government of the United States apparently do not understand this. He appears to have accepted Mr. Jefferson’s answer without demur.

    The minister of the Mexican Republic, in 1862, when Mexico was invaded by a French army, urged the American Government to prohibit the export of mules and wagons which French agents were purchasing for the use of the expedition. Mr. Seward refused, citing the following authorities:

    Instructions to collectors of customs, issued by Alexander Hamilton, Secretary of the Treasury, August 4, 1793.

    “The purchasing and exporting from the United States, by way of merchandise, articles commonly called contraband, being generally warlike instruments and stores, is free to all parties at war, and is not to be interfered with. If our own citizens undertake to carry them to any of these parties they will be abandoned to the penalties which the laws of war authorize.”—(American State Papers, Foreign Relations, vol. 1, p. 141.)

    Mr. Webster to Mr. Thompson, July 8, 1842.

    “It is not the practice of nations to undertake to prohibit their own subjects from trafficking in articles contraband of war. Such trade is carried on at the risk of those engaged in it under the liabilities and penalties prescribed by the law of nations or particular treaties.”—(Webster’s Works, vol. 6. p. 452.)

    Mr. Webster’s Instructions of July 8, 1842, cited in Gardner’s Instructions, American International Law, page 552.

    “That if American merchants, in the way of commerce, had sold munitions of war to Texas, the Government of the United States, nevertheless, were not hound to prevent it, and could not have prevented it without a manifest departure from the principles of neutrality.”

    President’s message, 1st session 34th Congress—Franklin Pierce, President; William L. Marcy, Secretary of State.

    “The laws of the United States do not forbid their citizens to sell to either of the belligerent powers articles contraband of war, or take munitions of war or soldiers on board their private ships for transportation; and although, in so doing, the individual citizen exposes his property or person to some of the hazards of war, his acts do not involve any breach of national neutrality, nor of themselves implicate the Government.”—(Appendix to British Case, vol. v, p. 332.)

    The passage last cited proceeds as follows:

    “Thus, during the progress of the present war in Europe, our citizens have, without national responsibility therefor, sold gunpowder and arms to all buyers, regardless of the destination of those articles. Our merchantmen have been, and still continue to be, largely employed by Great Britain and France in transporting troops, provisions, and munitions of war to the principal seat of military operations, and in bringing home the sick and wounded soldiers; but such use of our {mercantile marine is not interdicted either by the international or by our municipal law, and, therefore, does not compromise our neutral relations with Russia.”

    That the United States still adhere to this principle was abundantly proved in the course of the recent war between France and Germany.

    It is in the power, of course, of a neutral government to prohibit the exportation of contraband, if it think fit, and if such a prohibition be within the limit of its constitutional authority, but even such a prohibition gives no right to either belligerent.

    “Der Verkauf an und für sich allein kann zwar von einem neutralen staate selbst seinen Augehörigen untersagt werden; allein durch die Ueberschreituug dieses Verbo-tes macht man sich nur dem eigeuen staate verantwortlich; der kriegführende selbst hat seinerseits keine Befugniss die contravention zu ahnden.”—(Heffcer, section 161, fifth edition.)

  2. Appendix to British Case, vol. vi, p. 151.
  3. Ibid., p. 164.
  4. Ibid., p. 164.
  5. Appendix to British Case, vol. vi, p. 151.
  6. Appendix to Case of United States, vol. vi, p. 34.
  7. Appendix to British Case, vol. vi, p. 153.
  8. Appendix to British Case, vol. vi, p. 162.
  9. Ibid., p. 154.
  10. Ibid., p. 154.
  11. Ibid., p. 155.
  12. Ibid., p. 158.
  13. Ibid., p. 158.
  14. Appendix to British Case, vol. vi, p. 173.
  15. Appendix to United States Case, vol. i, p. 521.
  16. Ibid, p. 523.
  17. Appendix to British Case, vol. vi, pp. 182, 189–191, 197.
  18. Appendix to British Case, vol. vi, pp. 159, 160.
  19. Appendix to British Case, vol. vi, pp. 160–162.
  20. This was, no doubt, in the case of the Bermuda. See Appendix to British Case, vol. ii, p. 138.
  21. Appendix to British Case, vol. vi, p. 159.
  22. Appendix to Case of United States, vol. i, p. 536.
  23. See Appendix to Case of the United States, vol. i, p. 539; vol. vi, p. 69.
  24. Appendix to British Case, vol. vi, pp. 188–193.
  25. See returns, Ibid., pp. 200, 202.
  26. Case of the United States, p. 220.
  27. Appendix to British Case, vol. v, p. 202.
  28. The principle is clearly stated by Heffter, section 148, in the passage cited below, (Annex A.)

    It has been fully recognized by the United States. The following extract from a note of Mr. Websters was cited and adopted by Mr. Seward in answering a complaint of the Mexican minister in 1862:

    “As to advances, loans, or donations of money to the government of Texas, or its citizens, the Mexican government hardly needs to be informed that there is nothing unlawful in this so long as Texas is at peace with the United States, and that these are things which no government undertakes to restrain.”—Appendix to case of United States, vol. i, p. 589.

  29. Case of the United States, pp. 310–312.
  30. Case of the United States, p. 312.
  31. Appendix to British Case, vol. v, p. 30.
  32. To avoid this risk, it is said, (p. 223,) “it was resolved to send the purchases which might he made in England to Nassau in British bottoms, and there transship them into steamers of light draught and great speed, to be constructed for the purpose. * * * The first offer from Richmond that is known to have been given for such a shipment is dated the 22d of July, 1861.”

    The passages referred to as authorities do not show any such system. The letter from Walker to Huse & Anderson of July 22, 1861, suggests that a number of small vessels should be secured under British colors and with British clearance, laden with arms and convoyed by the armed vessel MacRae, which had been placed by the secretary of the navy at the disposal of the war department and was to be sent to England for the purpose. The vessels might make the port of Nassau or some other port equally favorably situated, whence they might clear with probable safety for the coast of Honduras or of Yucatan, and enter upon the coast either of Florida or Louisiana. Nothing is said of transshipment at Nassau. The Gladiator, which was the first vessel that arrived at Nassau with contraband of war on board for the Confederate States, (December 9, 1861,) had originally orders not to land her cargo. It was not until after she arrived at Nassau that it was decided to distribute it into smaller vessels. (See Appendix to Case of the United States, vol. vi, p. 56, where the idea of transshipment is spoken as a last resource, and Mr. Benjamin’s order to Captain Maffit, p. 57, also Mr. Heyliger’s letter, p. 58, which acknowledges the receipt of orders to transship.)

    The letter from Huse to Gorgas, March 15, 1882, ib., p. 69, besides being long subsequent in date, does not speak of any regularly established plan for transshipment, although he remarks on the difficulty of uniting in one vessel the qualities necessary for crossing the ocean and for running the blockade. In consequence of this, Major Huse is “quite at a loss what destination to give to the Bahama.” The next shipment he means to send to Havana.

    Huse (at Liverpool) was not directed to send the cargoes to Nassau, but to some port in Cuba, “to care of our agent, Mr. Helm, and we can get them away with almost entire certainty by breaking bulk there.” (Ibid., p. 68.)

    The cargo of the Economist was not transshipped. (Ibid., p. 71.)

    That of the Southwick was only transshipped on account of the amount of demurrage to he paid under her charter, while she was waiting for an opportunity to run the blockade. (Ibid., p. 73.)

    As to the existence of “private ventures,” it seems that most of the arms and supplies, mentioned in the correspondence in vol. vi, were contracted for by the confederate government, but it by no means appears, nor is there reason to believe, that all the vessels loaded with them were chartered by confederate agenta. Isaac Campbell & Co. contracted to deliver the arms sent by the Columbia and Sylph to the Confederate States, and tried to get off their bargain. (Appendix to Case of the United States, vol. vi, p. 88.) Part of the Herald again is mentioned as reserved for private cargo, p. 95.

    The information possessed by the United States Government, and communicated to Her Majesty’s government at the time, is given in vol. i of the Appendix to the Case of the United States. Mr. Adams in December, 1862, communicated a letter from Mr. Morse, United States consul in London, giving an account of the system pursued. He says that during the earlier part of the war, the trade was carried on by agents, but at that time by British merchants on their own account, in steamers chartered by them, or freighted by private speculators.’ (Vol. i p. 731.)

  33. See President Washington’s proclamation in 1793, (Appendix to British Case, vol. v, p. 237,) and Mr. Jefferson’s subsequent letter, referred to above, p. 49, and President Grant’s proclamation, issued at the commencement of the late war between France and Germany. (Appendix to Case of United States, vol. vii, p. 43.)
  34. Case of the United States, p. 221.
  35. Appendix to Case of the United States, vol. vi, p. 34.
  36. Ibid., p. 70.
  37. Case of the United States, pp. 232, 234.
  38. See Appendix to British Case, vol. ii, p. 89.
  39. Appendix to Case of the United States, vol. i, p. 520.
  40. Appendix to Case of the United States, vol. vi, p. 57; Appendix to British Case, vol. v, p.26.
  41. Case of the United States, p. 226.
  42. Appendix to Case of the United States, vol. i, pp. 741, 745.
  43. The subjoined extract from the New York Times of September 21, 1870, shows the course pursued during the recent war between France and Germany:

    “The steamer Lafayette, belonging to the Compagnie Transatlantiqne, sailed from this port for Havre yesterday afternoon, having on board a very large amount of ordnance and ordnance stores, together with upward of 250 French and Irish recruits, fully equipped and prepared to volunteer in the French provisional army against Prussia. Previous to the departure of the vessel, Mr. Johannes Roesing, consul for the North German States in this city, visited the United States district attorney’s office in Chambers street, and demanded the seizure of the Lafayette, on the ground that she was to be used to carry a military expedition against a country at peace with this government. It was found that there did not exist sufficient legal cause for the detention of the steamer, and the German consul then made a complaint against 133 of her passengers. He charged the latter, on information and belief, with being an armed and organized company, intended for warlike purposes against the Prussian states, in violation of the neutrality laws. His affidavit was prepared by Hon. A. H. Purdy, assistant district attorney, and was sworn to before Commissioner Betts. The complainant was unable to furnish the names of the émigrés, including the leaders, and the warrants for their arrest were accordingly filled out with fictitious names.

    * * * * * * *

    “After the German detectives announced their failure to recognize any of the expeditionary party, Mr. McKenzie took a passenger-list and used it in expelling from the vessel all those whose names were not on it. Precisely eighty-three Frenchmen lost their passage in this manner. These were all bound for the French army. Their passage-tickets were to have been given to them by the French committee of this city, but had not been purchased at the time of their expulsion. They were quite indignant on account of the agent’s maneuver, and were loath to leave the pier, trusting that they might get on board at the last moment. Among the passengers who were purchasers of tickets, and who remained on the Lafayette, were the leaders of the volunteers, and over 250 émigrés are destined for their native land. No attempt was made by the deputy marshals to interfere with arms and ammunition on the steamer, consisting of 120,000 rounds and several thousand Remington rifles. Mr. McKenzie was extremely dissatisfied with the action of the North German consul, and intimated his intention of bringing the matter before the proper authorities. The last seen of the Lafayette was off the Battery, at which time she was fast steaming out to sea. It was confidently reported that she was joined in the lower bay by the French corvette Latouche Tooville, Captain Bassett, with four guns on board and a crew of eighty men.

    “The Lafayette was to have sailed on Saturday last—her regular day—but was then detained by an order from the French minister of war at Paris, who desired that she should carry out certain munitions of war and supplies, intended, it is alleged, for the French army. Her mails were kept back until yesterday, and then left with the vessel. The supplies, &c, consisted of Remington breech-loaders, to the number of 6,000 cases—some persons say more—several million rounds of ammunition, a large number of revolvers and other small-arms, and a considerable quantity of provisions. She commenced taking in this portion of her cargo on Friday, and was engaged day and night to the hour of her departure, and even after she sailed a lighter arrived with cases of arms which came too late to be shipped.

    “It is stated by some persons on the wharf with one of whom our reporter conversed, that the cases have the marks of the ordnance officer at Governor’s Island. It is not improbable that these arms were purchased of the United States Government, as Mr. McKenzie, the agent of the line, informed our reporter, on Monday, that this Government were fully aware of the purchase and proposed shipment of these arms, and offered no objection.”

    The New York and Havre line of steamers, of which the Lafayette was one, held at the time a contract with the French government for the carriage of the mails. In October, 1870, a telegram was received at New York from M. Crémieux, a member of the French provisional government, ordering that the steamers of this line should be held exclusively for freight to be forwarded on account of the government. Under this order the packets continued to carry arms and munitions of war in large quantities from the United States to France. It appears, further, from the recent trial at Paris of M. Peace, French consul-general at New York, who was charged with the management of the purchase and shipment of these arms, that four vessels, the City of Buenos Ayres, Concordia, Riga, and Arcadia, were chartered and freighted with arms, by Messrs. Remington & Sons, for the French government, and two others, the Erie and Ontario, by an agent of the French consul-general for the same purpose, thus becoming “transports” in the sense in which the word is used in the Case of the United States. No objection was, however, raised to their sailing by the United States Government. The New York Times of the 30th of March, 1871, gives the following statement of the supplies forwarded by these and other vessels:

    “The steamship St. Laurent sailed yesterday with her last consignment of arms and munitions of war for France. She carried among her cargo 1,676 cases of cartridges, 574 cases of harness, 1,444 cases of rifles, 205 cases of bayonets, and 67 cases of projectiles. The whole cargo was valued at $708,955.50. This makes nineteen cargoes of arms sent to Havre since the war began, the previous shipments being as follows:

    Date. Steamers. Guns. Cartridges. Value.
    September 3 Pereire 2,155 462,500 $59,196
    September 20 Lafayette 15,840 3,955,000 417,633
    October 4 Ville de Paris 45,023 9,424,000 915,487
    October 20 St. Laurent 16,923 10,299,880 562,785
    October 29 Pereire 104,870 2,164,000 784,575
    November 2 Avon 58,340 11,500,000 707,000
    November 7 Ontario 72,540 17,785,552 1,764,655
    November 15 Lafayette 50,660 9,538,736 930,354
    November 28 Erie 120,800 16,818,120 1,744,080
    November 28 Ville de Paris 11,760 12,399,320 1,053,205
    December 13 Pereire 14,100 8,164,000 636,238
    January 2 Concordia 25,180 158,751 834,000
    January 4 Lafayette 37,000 4,671,000 754,275
    January 14 City of Buenos Ayres 8,240 1,317,000 448,400
    January 21 Ville de Paris 26,100 2,887,000 747,451
    February 6 Washington 2,275,820 421,240
    February 13 Riga 731,380
    March 1 Pereire 3,160,000 398,776
    Total 609,531 117,082,379 13,810,779

    It appears, from the official report of the Secretary at War, that the sales of ordnance stores by the Government of the United States in the year 1870–’71 amounted, in the aggregate, to $10,000,000.