[63] *1. Restrictions on coaling at Nassau.

2. Order of 31st January, 1862, in relation to Nassau.

Restrictions on coaling at Nassau. Her Majesty’s government will not advert in detail to some minor complaints and inaccuracies which occur in this part of the Case of the United States.

Two complaints, however, remain in connection with the matters referred to in the foregoing pages, which are treated as serious by the United States, though in the view of Her Majesty’s government they have nothing to do with the questions referred to the tribunal.

One of these is founded on the regulation enforced by the colonial authorities at Nassau, that a belligerent government should not be suffered to store coal at that port for the use of its armed ships of war; the other, on the orders subsequently issued by Her Majesty’s government, whereby the ships of war and privateers of both belligerents were prohibited from entering the ports or waters of the Bahama Islands, unless by special leave of the governor, or under stress of weather.

Various complaints of the United States against Great Britain.
Restrictions on coaling at Nassau.
The circumstances under which the first of these two complaints arose are succinctly stated in Earl Russell’s note to Mr. Adams of the 25th [Page 286] March, 1862.1 It will be observed that two vessels arrived at Nassau laden with coal which had been shipped at Philadelphia by order of the United States Navy Department; that the United States consul desired to store this coal for the use of ships of war under the flag of his government resorting to the colony $ that this was objected to by the local authorities, and that the objection led to *remonstrances on the part of the consul and of the commander of the United States ship Flambeau, which arrived while the correspondence was proceeding. It was urged by the latter that both the United States ships James Adger and the confederate ship Nashville had been suffered to coal at Southampton, and that this was a precedent in favor of granting the facilities now asked at Nassau. It was pointed out in reply that the cases were not parallel. Those vessels were several thousand miles distant from their respective homes, and to them consequently coal was an article of real necessity, whereas the Flambeau was within a very short distance of the ports of her own nation—Key West, for in stance—where all her necessities could readily have been supplied. In obtaining coal at Nassau, therefore, there could be no other object than that of enabling her to continue what was, in fact, to some extent, a blockade of the port.

The commander of the Flambeau replied,2 protesting against such a construction being placed on his presence, and declaring that he was strictly enjoined to respect the rights of neutrals.

It appears, however, from a letter addressed by the governor to the British commodore at Havana, dated December 12, 1861, that the Flambeau constantly kept her steam up ready for instant movement, and there was a report that she intended to cut out the Gladiator, or to [Page 287] seize that vessel immediately after leaving the port.1 The consul of the United States, in a dispatch to his Government of the following day,, stated that “the captain of the Flambeau is watching intently the movements of these rebel steamers.”2 The consul notices that “an English man-of-war has arrived, and several more are telegraphed as in sight,” and he does not doubt that every protection will be afforded to the Gladiator, and every means afforded to facilitate her escape.

The attorney-general of the colony advised the governor that, though it might be in accordance with the regulations issued by Her Majesty’s government to suffer coal to be supplied to an armed vessel of either belligerent putting into port under ordinary circumstances, and desirous of obtaining a supply of coal in the ordinary mode by purchase in the market, such was not the case of the Flambeau, or of the coal in question. He therefore advised that the restrictions placed on the use of that coal should be continued, and that reference should be made to the home government for instructions.

The dispatches reporting these facts were received at the foreign office from the admiralty and colonial office on the 15th and 16th of January, 1862, and the question was at once referred to the law-officers of the Crown. Their opinion was that the governor had acted properly in refusing to allow the proposed coal-depot to be formed at Nassau. The formation or permission of such a depot for a purpose so directly connected with belligerent operations would be inconsistent with the neutrality of Great Britain.3

One of the vessels laden with coal appears to have been sent back at once by the United States consul. The other, the Caleb Stetson, remained in the harbor with the coal on board, and does not seem to have suffered any injury from the serious leak previously reported by the consul, as rendering necessary the transshipment of her cargo to the Flambeau.4

[65] *Representations on this subject were made by Mr. Adams to Earl Russell on the 24th of February, 1862. Lord Russell replied,, on the 25th of March, explaining the governor’s proceedings, and Mr. Adams, though apparently dissatisfied, did not pursue the subject.5

The attempts of the United States to form coal-depots for their cruisers at British ports were not confined to Nassau. They had simultaneously sent vessels laden with coal for the same purpose to Bermuda,, (which was likely to prove a convenient station,) consigned in a similar manner to their consul there. The governor, on learning that the conduct of the authorities at Nassau in preventing such a depot had been approved, informed the United States consul that it had been decided not to allow the formation in any British colony, either by the Government of the United States or by that of the so-called Confederate States, of a depot for the use of their respective vessels of war.6

Orders of the 31st January, 1862, in relation to Nassau. The orders of the 31st of January, 1862, issued shortly after the occurrences at Nassau, laid down general rules to be observed in all the ports of the United Kingdom, and of Her Majesty’s colonial possessions, as to the admission of armed ships of either belligerent, the time during which they might be allowed to remain, and the conditions under which they might be suffered to receive coal [Page 288] and other supplies. These orders at the same time closed the ports and waters of the Bahama Islands to the ships of war and privateers of both belligerents. They will be referred to, as regards their general operation, in a later part of this Counter Case; and ample materials will he supplied for judging whether they were or were not fairly executed, and whether it was by confederate ships or by ships of the United States that the hospitalities of British ports were the more largely used.

In the definition of neutral duties produced in the earlier portion of the Case of the United States,1 a definition which purports to lay down “principles” and “doctrines of international law,” and to be “in harmony with the views of the best publicists,” it is affirmed that “the ports or waters of the neutral are not to be made the base of naval operations by a belligerent.” “Ammunition and military stores for cruisers cannot be obtained there; coal cannot be stored there for successive supplies to the same vessel, nor can it be furnished or obtained in such supplies.” It might have been reasonably supposed, therefore, that the course pursued by the authorities at Nassau, in the case of the Flambeau and her coal-ships, would have merited the approval of the Government of the United States, instead of being denounced as a violation of neutrality. The restriction in question is not indeed commanded, as the Government of the United States supposes it to be, by any rule of international law, but it may be imposed by any neutral power which thinks fit to do, and was, under the circumstances of the case, clearly proper and convenient.

The same observation applies to the orders of the 31st January, 1862. It is undeniably within the competence of a neutral government to close, if it think fit, all its ports, or any selected ports within its dominions, to belligerent ships of war. This has frequently been done. Thus, in 1820, during the war between Spain and the Spanish-American Republics, an act of Congress was passed, on the recommendation of the President, by which it was enacted that no foreign armed ship should enter any other harbor than Portland, Boston, New London, New York, Philadelphia, Norfolk, Smithville, Charleston, or Mobile, unless in case of distress, stress of weather, or pursuit by the enemy. This act was to continue in force for two years. In determining to make such a selection, and in designating particular ports for the purpose, the neutral government has to consult its own judgment only. But where any particular port or place is, from geographical situation or local circumstances, liable to be made use of by both belligerents or either as a station or base for naval operations, it becomes a simple measure of ordinary prudence and precaution.

[66] To prevent the Bahama Islands from being used for this purpose was the avowed intention both of the restriction on coaling enforced at Nassau and of the subsequent order. These islands were so near to the American coast that the liberty to resort to them could not be valuable to either belligerent for any other purpose, unless it were to the belligerent whose own harbors were under blockade, and to whom, therefore, the exclusion must necessarily be more unfavorable than to the other. What, then, is the grievance of the United States? It is, that the United States cruisers were precluded from using the Bahamas for belligerent operations. Nassau was frequently visited by blockade-runners, and was within a moderate distance of Charleston and Savannah; was, therefore, a convenient station [Page 289] and port of call for cruisers employed to watch and capture blockade-runners. Thus it is explained that “further stay of the United States *vessels of war was useless” when the expedient was adopted of sending in cargoes in light and speedy vessels. Further stay was useless, because the cruiser waiting in port could not overtake and capture these light and speedy vessels. If ships carrying contraband and other goods to blockaded ports in the Confederate States were suffered to repair to the colony, United States cruisers ought, it is said, to have been suffered to repair thither likewise for the purpose of watching for and making prize of those ships and their cargoes. That the port would in the latter case have been used as a station for hostilities, and a point of departure for naval operations, and that it was hot so used in the former case, is a distinction which seems to escape the notice of the Government of the United States.

The rigorous definition of the duties of a neutral furnished in the third part of the Case of the United States seems to be forgotten in the fourth part. The stringent rules by which the abuse of neutral ports by belligerent vessels was to be prevented have now disappeared, and the measures adopted to guard against that abuse are reckoned among the cases “wherein Great Britain failed to perform her duties as a neutral.”

  1. Appendix to Case of United States, vol. i, p. 346.
  2. Appendix to Case of United States, vol. vi, p. 51.
  3. Appendix to British Case, vol. v, p. 27.
  4. Appendix to Case of United States, p. 47.
  5. Appendix to British Case, vol. v, p. 31.
  6. Appendix to Case of the United States, vol. vi, pp. 46, 53.
  7. Appendix to British Case, vol. v, p. 8.
  8. Appendix to Case of United States, vol. i, p. 346.
  9. Pages 148, 167, 168, 169.