[609] *No. 10.

Memorandum of questions between Brazil, Germany, and France.

A relation of the facts and résumé of the correspondence between the Brazilian government and the French and North German legations in Brazil, in relation to the alleged violation of the neutrality of Brazil, and abuse of the right of asylum accorded by her to the vessels of war, and their prizes, (with a delay of twenty-four hours,) by the bringing into Rio de Janeiro ou the 14th September, 1870, of the North German merchant-vessels Lucie and Concordia captured by the French gun-boat Hamelin, and left in the harbor of Rio, for the purpose (as alleged) of discharging goods on board belonging to neutrals, (which was done,) and by the leaving said vessels in said harbor, in charge of only one mariner on board of each, taken from another French vessel in port, and under the care of the French consul; and by the coming in afterward of the French gun-boat Bruix, from whom men were sent and placed on, and in charge of, said vessels, which were then taken out of the harbor under convoy of said Bruix, October 22, 1870.—(From the Relatorio (Foreign affairs,) 1871.)

[610] *On the 14th of September, 1870, two German merchant-vessels, the Lucie and the Concordia, were by officers in charge brought into the harbor of Rio as having been captured by the French gun-boat Hamelin, as her prizes of war.

The entry of such vessels under such circumstances was permitted by the Brazilian circulars of August 27, 1870, in which reference was made to those of August 1, 1861, and June 23, 1863, and a permission to remain twenty-four hours accorded. The necessity of leaving at the expiration of that period was notified to the commanding officers of the prizes.

It appearing, however, that on board of the German vessels were goods of neutrals, the imperial government admitted that, under the principles laid down by the congress of Paris, 1856, more time would have to be allowed, in order to permit the unloading of such neutral goods, and that as soon as this could be effected, the vessels must leave. The German legation at once claimed that Brazil was bound to restore those vessels to their owners and to exclude the Hamelin from the ports of Brazil; because,

The Concordia had been captured in Brazilian waters, in violation by France of Brazilian neutrality.
[611] Because the Hamelin having left Rio on the 14th August, and returned on the 14th September, had not, in the interval, entered into any French port, nor into any neutral port, but had evidently been lurking in the ports and under islands off the coast of Brazil. And on the 17th September the same (German) minister claimed the release and restoration of the other vessel (Lucie) on the same grounds.

The French legation, on the other band, declared that the prizes had been taken six miles and sixty métérs distant from the Marica Islands, and on the high seas, outside the territorial jurisdiction, and that the Hamelin having left Rio for Montevideo, on the 14th August, had entered the last-named port on the 20th; left thereon the 2d September, and returned to Rio ou the 13th September.

[612] The Brazilian minister of foreign affairs then addressed a letter of inquiry to the president of the province of Rio de Janeiro, requiring him to make inquiry and take proofs, who “some time afterward” answered that nothing could be proven; notwithstanding every effort and search, [Page 150] up and down the coast, for persons who must have seen the fight or attack, (in case it had taken place so near land as alleged,) and that the Hamelin had not been in any Brazilian port, and had not been seen hovering on the coast. The Brazilian government therefore concluded that there *had been (then) no violation of Brazilian neutrality by the act of the Hamelin, and that it could not comply with the demand for restoration; nor for the exclusion of the French capturing vessel from the Brazilian ports, during the continuance of the war. This exclusion was afterward ordered, for other reasons, as stated below.

The German legation in Brazil then objected to the admission into Brazilian ports of prizes of German vessels under the above circulars, as of itself a breach of neutrality, which, rightly understood and practiced, would equally exclude all vessels claimed as prize by either belligerent; and especially since the German government had given orders not to capture merchant-vessels belonging to the enemy, by the order of July 18, 1870.

[613] The Brazilian government replied that this new rule or order was one wTiich was not obligatory on any power who did not acknowledge its principle, and that no change of the rule of neutrality (which admitted prizes of both belligerents with delay of twenty-four hours) could be accepted, unless admitted by the other belligerent, and agreed to by this government also; which, when it laid down the rules for conduct to its officers and agents, in its circulars, could not, and did not, know the new exception introduced, or proposed by the German government. Besides (as *since appears) the decree of 18th July, 1870, was afterward revoked by another, issued (at Versailles) by the same government, in January, 1871.

The (Brazilian) circulars of 1861 and 1863, which were thus objected to by the (Prussian) N. G. government, were objected to also by the French, and for reasons quite as unsound; for (the French chargé stated) those circulars imposed restrictions on the freedom of action of the French naval forces. France maintained a large navy; the Germans none. This last had a large army; the French army was not so numerous. France thus diverted to the enlargement and maintenance of her navy large sums, which, in case no such armament existed, might have gone to the increase of her army. That government, therefore, which, by its acts, under form of preserving its own neutrality, limited or restrained the efforts of the French naval force upon its enemy’s commerce, in effect, assisted that enemy.

[614] The Brazilian government answered that both France and Germany, by their reclamations, attemxjted to set up a new rule of neutrality, namely, that a neutral power should formulate the conditions of its neutrality according to the distribution and organization of the land and sea armaments of the respective belligerents. It is needless to point out that the attempt to enforce such a novel regulation *would at once involve the neutral in the great difficulty (among others) of requiring the condition of neutrality to change with the alternating vicissitudes of war. The Brazilian government, therefore, would maintain the attitude in which it had placed itself, which was justified by the principles maintained before the outbreak of the Franco-German war, and which had been sustained by the positions assumed by the French government and by the decrees in French courts of prize.

The discharge of merchandise belonging to neutrals on board the Lucie was complétéd on the 24th September, (1870.) The chief of police [Page 151] was therefore directed to notify the officer in charge of that vessel, as well as the officer in charge of the Concordia, as soon as she had landed such goods from the cargo; and the fact of such order having been given was made known also to the French legation in Rio.

At the expiration of the time allowed, and thus prolonged, and notwithstanding the declaration of the French chargé that the Hamelin (the captor) would conform to the notice, it was not complied with. The Hamelin had left the port on the 23d of September, having left on board the two captured vessels in the harbor an insufficient number of men to navigate them.

[615] *The German minister at once declared this condition of facts to the Brazilian government, and protested against any attempt to increase the number of men while in this harbor. The French charge directed the French consul to order the departure of the Lucie, and of the Concordia, as “soon as certain repairs had been made, which were indispensable to the prosecution of her voyage,” and asked a further prolongation of time therefor.

The Brazilian government declined, stating that the delay of twenty-four hours allowed by the rules of neutrality, and permitted by their instructions, could be prolonged only in case of forced arrival, (by stress of weather,) and to discharge goods on board belonging to neutrals. In fact, when the Hamelin left, on the 23d of September, she bad placed on board each one of her prizes one man sent by the French consul, and taken from on board a French merchant ship in the harbor, the Mineiro. Any increase of armament, or addition to their crews, would not be allowed, (and besides, the Hamelin had already, by taking back on board the prize-masters and crews which she had placed on board those vessels at the moment of capture here, augmented her own crew by an addition, in this port, to the number on board of her when she entered.)

[616] *The French consul then (in a note to the chief of police) asked permission to place on board the prizes five men, taken from other French vessels, who should assist only until they had passed the bar, and should return in the tug-boat which was to tow them out. The French charge, then, also discovered that the second condition (case mentioned and provided for) in the Brazilian circular of 1863 was not applicable to prizes, but only to vessels of war; and that since, before the war, a French merchant vessel would be entitled to engage and receive on board such number of men as might be necessary to continue her voyage, to refuse it now to the Lucie and Concordia (the captured vessels) would be a violation of that admitted right, and asked a further delay, in order to be able (to assure the safe departure) to get the vessels safely to sea.

The Brazilian government refused, and said that the prohibition upon new armament or increase of crew applied to such vessels as the Luci e and Concordia, and must, since otherwise any vessels of war, capturing many merchantmen, and weakening her own force by the distribution among them, from her own company, of prize-master and crews, could come into a neutral port, there deposit her prizes in safety, without crews, receive back her own, and again go to sea to repeat such maneuvers.

[617] *It then appeared that the French chargé was about to permit, if not to authorize, the act (declared by the French consul to the chief of police) to tow the prizes out to sea by a French gunboat, which he had sent for, and asked from the commander of the French naval forces on this station. Whereupon the Brazilian government notified the French legation that these vessels would not be [Page 152] permitted to leave this port, even in tow of a French vessel of war; and this resolution was also made known to the German minister.

The French legation, on the 7th October (mark, the prizes had entered on the 14th September, and the discharge of goods belonging to neutrals was accomplished by the Lucie 24th September, and the Concordia) protested against such order, and said:

[618] If Brazil does not wish to receive into her ports vessels captured as prize of war, she should have so declared in her answer to my notification (of the declaration of war between France and North German Union) on the 14th August last, and should, at the time of their coming in, objected to the admission of the Lucie and Concordia. Once received into this port it would be too late to apply to them rules which were only made known to me on the 16th of September, (after their arrival,) and which could not be allowed to have a retroactive effect. Admiral Fisquet has just written me that he will send to Eio the *dispatch-boat Le Bruix to take away the prizes. I therefore beg your excellency will give orders to allow their departure, it being understood that on board the captured vessels there shall be placed no men enlisted or engaged in Rio de Janeiro.

The Brazilian government answered with a recapitulation of dates, and a narration of occurrences in this matter, and stated that the Hamelin had come in with her prizes, under the privilege accorded to belligerents by a neutral power, and was, therefore, to be held to strict compliance with the requirements and conditions of such permission; that the time for stay, limited to twenty-four hours, was known to the commander of the Hamelin before his arrival; that such stay was prolonged simply for the benefit of those neutrals whose goods were laden on the prizes; that the Hamelin had departed, with persons on board taken from the prizes, (French, and of her own crew,) and that these prizes had, in fact, remained long beyond the time allowed, and because the captors had not placed on board a crew sufficient to take charge of them; that the French commander had gone out to communicate, probably, with the admiral, and to bring from the fleet aid to make valid the possession of the prizes, which aid it was proposed to put on board (though not recruited) within this harbor; that thus, in fact *and effect, there had been either an abandonment of prize in this port, or else there was an attempt to make a neutral port a place of deposit for the safe-keeping of vessels captured, and before, and in delay of, their being adjudged good prize of war by a compétént tribunal; that by all this a violation of the neutrality of Brazil had occurred; but that this government (Brazil) would proceed only after consultation of the council of state; that, under these circumstances, the departure of Le Bruix could not be allowed with those vessels. Orders were, on the 10th October, issued to the captain of the port to take precautionary measures to prevent any accident, and this was notified to the French legation. On the 11th that legation answered that it persisted in considering the captured vessels good prize, until it was otherwise declared by a competent court (conseil de prises;) that, in order to take away any pretext (sic) from the Brazilian government’s undertaking to assume possession of the two vessels, he had asked the commandant of Le Bruix to place on board (in this harbor, of course) a crew sufficient for handling the vessels in the port, and to prevent an accident (by reason of swinging at anchor among other vessels;) that the Bruix would, at once, get ready to take these prizes to sea; and that, if his (your) excellency wished to *assume the great responsibility of preventing such departure by force, his excellency had only to give order to the forts to fire upon the vessel. The Bruix will stop at the first gun. The French government will afterward decide how this act of hostility by the Brazilian government shall be responded to. The Brazilian government answered, by informing the [Page 153] French legation, that on next day (14th October) a guard would be placed on board the two vessels, Lucie and Concordia, and an inventory taken in presence of Brazilian agents, and of the French consul if he chose to be present.

The French dispatch-boat Bruix came into port on the 13th October, and the French consul was notifiecfby the chief of police that no persons could be placed on board the prizes from the Bruix. Nevertheless, a number of men from the Bruix were placed on board those two vessels, and preparations made to depart with them. Against this the Yiscount Sao Vicente (Brazil) protested, as a new violation of neutrality and of the police of the port. The German minister (Mr. de St. Pierre) also protested to the Brazilian government against such action being permitted, and against the departure of the captured vessels.

[621] The report of the minister of foreign relations then states that the final resolution taken by the Brazilian government was made known to both *legations as follows:

The imperial government having duly considered the means of making available its rights, has preferred those which conform to its own regulations, and the principles acknowledged in the law of nations, and with usages which prevail. It therefore declares to M. le chargé d’affaires:

That the steamer Hamelin will not be admitted into any port of the empire hereafter during the war between France and Prussia, and orders will be sent, to secure that end, to the different ports and officers.
That the imperial government protests to and will claim from the French government the proper reparation for the violation of its rights of sovereignty in relation to asylum and neutrality, and for the consequence therefrom resulting.
That to this end orders will be given, so that the prizes above mentioned can depart from this port with the crews improperly placed on board them from the Bruix. They must depart within twenty-four hours, dated from the notice which will be sent to-day to the commander of the Bruix. It must also be noticed that since a German (sailing) merchantman left this port to-day at 2 o’clock, the Bruix cannot be allowed to depart until after the expiration of the seventy-two hours prescribed by the 5th (condition) case provided for in the circular of 23d June, 1863.

[622] *The French chargé protested against the exclusion of the Hamelin because, in his judgment, that vessel had brought her prizes into Bio only out of consideration for, and for the purpose of, discharging the merchandise on board such prizes belonging to neutrals.

The German minister protested anew against the permitted departure of the German vessels as prizes of the French vessel of war, and said “he would inform his government of the unsatisfactory result of his efforts to obtain from Brazil a decision in those respects in accordance with the duties of a neutral state.”

In connection with this, a question afterward arose as to the proper parties to whom should be paid the freight due by the (neutral) owners of goods landed here from these two German vessels. The French charge submitted this question to his government, which answered that the (French) consul should deliver the goods to such neutral owners who would sign a declaration obliging themselves to pay the amount of the freight to the French government, if it should, after an understanding with Brazil, decide that it was due to the captor.

[623] The French chargé had complained that the North German consul had made a visit and search on board the two vessels, going in his uniform, and in a *boat having his flag hoisted, and at the moment when the crew in charge had retired, after discharging neutral goods, and while a guard (one man) only had remained on each vessel.

The Brazilian government objected to the proceeding by the North [Page 154] German consul, and the North German minister explained it in the following manner:

The consul, Mr. Hanpt, for reasons of duty, having to visit the German vessel Fetisch, anchored in this port, and passing on his way to that vessel the Lucie and the Concordia, thought he would, on his way, ask the two French sailors belonging to the Mineiro and the Brazilian officer (employé) some questions in relation to those two vessels, Lucie and Concordia. He did not go on board, as alleged.