Note C.–Memorandum of correspondence and documents relative to the amendment of the English Foreign-Enlistment Act, 1861–71.
On the 7th of September, 1861, Mr. Seward, writing to Mr. Adams, said:
“I do not think it can be regarded as disrespectful if you should remind Lord Russell that when, in 1838, a civil war broke out in Canada, a part of the British dominions adjacent to the United States, the Congress of the United States passed, and the President executed, a law which effectually prevented any intervention against the Government of Great Britain in those internal differences by American citizens, whatever might be their motives, real or pretended, whether of interest or sympathy. I send you a copy of that enactment. The British Government will judge for itself whether it is suggestive of any measures on the part of Great Britain that might tend to preserve the peace of the two countries, and, through that way, the peace of all nations.” (Am. App., vol. i, p. 102, 660.)
On the 28th of November, 1861, and, as it appears, before Mr. Adams had taken the direct action indicated in the dispatch of Mr. Seward above quoted, Lord Russell wrote to him as follows:
“Having thus answered Mr. Adams upon the two points to which his attention was called, the undersigned has only further to say that if, in order to maintain inviolate the neutral character which Her Majesty has assumed, Her Majesty’s Government should find it necessary to adopt further measures, within the limits of public law, Her Majesty will be advised to adopt such measures.” (Am. App., vol. i, p. 661.)
On the 27th of March, 1862, Lord Russell wrote to Mr. Adams in part as follows:
“I agree with you in the statement that the duty of nations in amity with each other is not to suffer their good faith to be violated by evil-disposed persons within their borders merely from the inefficacy of their prohibitory policy.” (Am. App., vol. ii, p. 602.)
On the 20th of November, 1862, Mr. Adams, in accordance with explicit instructions from Mr. Seward, wrote to Lord Russell, submitting to his consideration a large number of papers, establishing the fact that the Alabama had destroyed a number of United States vessels, and so was actually carrying out the intention which Mr. Adams alleged that she had prior to her departure from the ports of Great Britain, and in the conclusion of the letter Mr. Adams said:
“Armed by the authority of such a precedent, having done all in my power to apprise Her Majesty’s Government of the illegal enterprise in ample season for effecting its prevention, and being now enabled to show the injurious consequences to innocent parties, relying upon the security of their commerce from any danger through British sources ensuing from the omission of Her Majesty’s Government, however little designed, to apply the proper prevention in due season, I have the honor to inform your lordship of the directions which I have received from my Government to solicit redress for the national and private injuries already thus sustained, as well as a more effective prevention of any repetition of such lawless and injurious proceedings in Her Majesty’s ports hereafter.” (Am. App., vol. iii, p. 72 j vol. i, p. 666. Brit. App., vol. iv, p. 15.)
On the 19th of December, 1862, Lord Russell in part replied to Mr. Adams as follows:
“As regards your demand for a more effective prevention for the future of the fitting out of such vessels in British ports, I have the honor to inform you that Her Majesty’s Government, after consultation with the Law-Officers of the Crown, are of option that certain amendments might be introduced into the Foreign-Enlistment Act, which, if sanctioned by Parliament, would have the effect of giving greater power to the Executive to prevent the construction in British ports of ships destined for the use of belligerents. But Her Majesty’s Government consider that, before submitting any proposals of that sort to Parliament, it would be desirable that they should previously communicate with the Government of the United States, and ascertain whether that Government is willing to make similar alterations in its own Foreign-Enlistment Act; and that the amendments, like the original statute, should, as it were, proceed pari passu in both countries.
“I shall accordingly be ready at any time to confer with you, and to listen to any suggestions which you may have to make by which the British Foreign-Enlistment Act, and the corresponding statute of the United States, may be made more efficient for their purpose.” (Am. App., vol. i, p. 667; vol. iii, p. 888; Brit. App., vol. iv, p. 25.)
[Page 243]On the 25th of December, 1862, this reply of Lord Russell was forwarded by Mr. Adams to Mr. Seward, (Am. App., vol. iii, p. 87,) and on the 19th of January, 1863, Mr. Seward wrote to Mr. Adams, replying to the suggestions of Lord Russell, in part as follows:
“It is not perceived that our anti-enlistment act is defective, or that Great Britain has ground to complain that it has not been effectually executed. Nevertheless, the proposition of Her Majesty’s Government that the two Governments shall confer together upon amendments to the corresponding acts in the two countries evinces a conciliatory, a liberal, and just spirit, if not a desire to prevent future causes of complaint. You are, therefore, authorized to confer with Earl Russell, and to transmit for the consideration of the President such amendments as Earl Russell may in such a conference suggest, and you may think proper to be approved.
“You will receive herewith a copy of some treasonable correspondence of the insurgents at Richmond with their agents abroad, which throws a flood of light upon the naval preparations they are making in Great Britain. You will use these papers in such a manner as shall be best calculated to induce the British Government to enforce its existing laws, and, if possible, to amend them so as to prevent the execution of the unlawful designs which will thus be brought to their notice in a manner which will admit of no question in regard to the sufficiency of evidence.” (Am. App., vol. iii, p. 113; vol. i, pp. 546, 667.)
On the 9th of February, 1863, Mr. Adams wrote to Lord Russell, transmitting the “treasonable correspondence of the insurgents at Richmond with their agents abroad,” and said in part as follows:
“These papers go to show a deliberate attempt to establish within the limits of this kingdom a system of action in direct hostility to the Government of the United States. This plan embraces not only the building and fitting out of several ships of war under the direction of agents especially commissioned for the purpose, but the preparation of a series of measures under the same auspices for the obtaining from Her Majesty’s subjects the pecuniary means essential to the execution of those hostile projects,” (Am. App., vol. i, p. 562.)
On the 13th of February, 1863, Mr. Adams having had a personal interview with Earl Russell, wrote to Mr. Seward as follows:
“In obedience to your instructions contained in dispatch No. 454, I called the attention of Lord Russell, in my conference of Saturday, to the reply made by him to my note of the 20th of November last, claiming reparation for the damage done by No. 290, and security against any repetition of the same in future. I observed that my Government had not yet authorized me to say anything in regard to the answer on the first point; but with respect to the second, his lordship’s suggestion of possible amendments to the enlistment laws in order to make them more effective had been received. Although the law of the United States was considered as of very sufficient vigor, the Government were not unwilling to consider propositions to improve upon it.
“To that end I had been directed to ask whether any such had yet been matured by Her Majesty’s Ministers; if so, I should be happy to receive and to transmit them to Washington. His lordship, repeating my remark that my Government considered its present enlistment law as efficiently effective, then added that since his note was written the subject had been considered in the cabinet, and the Lord Chancellor had expressed the same opinion of the British law. Under these circumstances he did net see that he could have any change to propose.
“I replied that I should report this answer to my Government. What explanation the Government was ready to give for its utter failure to execute a law confessed to be effective did not then appear.” (Am. App., vol. i, p. 668.)
On the 14th of February, 1863, Lord Russell reported this same interview, as follows, in a dispatch to Lord Lyons:
“I had a conversation a few days ago with Mr. Adams on the subject of the Alabama.
“It did not appear that this Government desired to carry on the controversy on this subject from Washington; they rather left the conduct of the argument to Mr. Adams.
“On a second point, however, namely, whether the law with respect to equipment of vessels for hostile purposes might be improved, Mr. Adams said that his Government was ready to listen to any propositions Her Majesty’s Government had to make, but they did not see how their own law on this subject could be improved.
“I said that the cabinet had come to a similar conclusion; so that no further proceedings need be taken at present on this subject.” (Am. App., vol. i, p. 668. Brit App., vol. i, pt. i, p. 48.)
On the 2d of March, 1863, on receipt of Mr. Adams’s dispatch of the 13th of February, Mr. Seward wrote to Mr. Adams in part as follows:
“It remains for this Government, therefore, only to say that it will be your duty to urge upon Her Majesty’s Government the desire and expectation of the President that henceforward Her Majesty’s Government will take the necessary measures to enforce the execution of the law as faithfully as this Government has executed the corresponding statutes of the United States.” (Am. App., vol. i, p. 669.)
[Page 244]On the 27th of March, 1863, Lord Russell, reporting to Lord Lyons a conversation which Mr. Adams had had with him the day before, and after the receipt of the dispatch last quoted, wrote in part as follows:
“Mr. Adams said there was one thing which might be easily done. It was supposed the British Government were indifferent to these notorious violations of their own laws. Let them declare their condemnation of all such infractions of law.
“With respect to the [enlistment] law itself, Mr. Adams said either it was sufficient for the purposes of neutrality, and then let the British Government enforce it; or it was insufficient, and then let the British Government apply to Parliament to amend it.
“I said that the cabinet were of opinion that the law was sufficient, but that legal evidence could not always be procured; that the British Government had done everything in its power to execute the law; but I admitted that the cases of the Alabama and Oreto were a scandal, and, in some degree, a reproach to our laws.” (Am. App., vol. i, p. 670; vol. iii, p. 122. Brit. App., vol. iv, pt. ii, p. 2.)
On the 27th of March, 1863, the neutrality laws of Great Britain being under consideration, in connection with the escape of the Alabama, the Solicitor-General, Sir Roundell Palmer, said:
“The United States Government appear to have a more convenient method than ours. Their customs authorities have a court always sitting, ready to deal with such matters; but in this country the customs authorities would have had to seize the ship, without any order of the court, on the responsibility of the Government; and it would be a direct violation of the law to do that, unless there was a justifying cause for doing so.” (Am. App., vol. iv, p. 522.)
In the same debate, he said further:
“And if our law is defective, it is for this House to consider whether it ought to be amended. If Her Majesty’s Government thought it was so, they would be willing, in concert with the American Government, to consider how it might be amended. But they could not think it would be acting prudently or safely to come down to Parliament and propose an alteration in our law, unless they had reason to believe that the American Government were prepared to take some steps to place their law also on the same basis.” (Am. App., vol. iv, p. 523.)
In the same debate, Lord Palmerston said:
“But if this cry is raised for the purpose of driving Her Majesty’s Government to do something which may be contrary to the laws of the country, or which may be derogatory to the dignity of the country, in the way of altering our laws for the purpose of pleasing another Government, then all I can say is, that such a course is not likely to accomplish its purpose.
* * * * * * *
“I think that the House at least will see that the statement of my honorable and learned friend proves that we have, in regard to enforcing the Foreign-Enlistment Act, done all that the law enabled or permitted us to do.
* * * * * * *
“The law is in this case of very difficult execution. This is not the first time when that has been discovered. When the contest was raging in Spain between Don Carlos and Queen Isabella, it was my duty, the British Government having taken part with the Queen, to prevent supplies from being sent to Don Carlos from this country. There were several cases of ships fitted out in the Thames; but, though I knew they were intended to go in aid of Don Carlos, it was impossible to obtain that information which would have enabled the Government to interfere with success.
* * * * * * *
“I do hope and trust that the people and Government of the United States will believe that we are doing our best in every case to execute the law; but they must not imagine that any cry which may be raised will induce us to come down to this House with a proposal to alter the law. We have had—I have had—some experience, of what any attempt of that sort may be expected to lead to; and I think there are several gentlemen sitting on this bench who would not be disposed, if I were so inclined myself, to concur in any such proposition.” (Am. App., vol. v, pp. 530, 531.)
On the 9th of June, 1863, certain merchants of Liverpool addressed a memorial to Lord Russell, in part as follows:
“Your memorialists, who are deeply interested in British shipping, view with dismay the probable future consequences of a state of affairs which permits a foreign belligerent to construct in, and send to sea from, British ports vessels of war in contravention of the provisions of the existing law.
“That the immediate effect of placing at the disposal of that foreign belligerent a very small number of steam cruisers has been to paralyze the merchant marine of a powerful maritime and naval nation, inflicting within a few months losses, direct and indirect, on its ship-owning and mercantile interests which years of peace may prove inadequate to retrieve.
* * * * * * *
[Page 245]“Your memorialists would accordingly respectfully urge upon your lordship the expediency of proposing to Parliament to sanction the introduction of such amendments into the Foreign-Enlistment Act as may have the effect of giving greater power to the Executive to prevent the construction in British ports of ships destined for use of belligerents.” (Am. App., vol. i, p. 672.)
On the 24th of June, 1863, the Lord Chief Baron, in charging the jury in the Alexandra ease, said:
“Gentlemen, I must say, it seems to me that the Alabama sailed away from Liverpool without any arms at all, merely a ship in ballast, unfurnished, unequipped, unprepared, and her arms were put in at Terceira, not a port in Her Majesty’s dominions. The Foreign-Enlistment Act is no more violated by that than by any other indifferent matter that might happen about a boat of any kind whatever.” (Am. App., vol. v, p. 129.)
On the 6th of July, 1863, Mr. Hammond, by the direction of Earl Russell, replied to the memorial of the Liverpool merchants, in part as follows:
“In Lord Russell’s opinion the Foreign-Enlistment Act is effectual for all reasonable purposes, and to the full extent to which international law or comity can require, provided proof can be obtained of any act done with the intent to violate it.
“Even if the provisions of the act were extended, it would still be necessary that such proof should be obtained, because no law could or should be passed to punish upon suspicion instead of upon proof.” (Am. App., vol. i, p. 673.)
On the 16th of July, 1863, Mr. Adams, transmitting to Mr. Seward copies of the memorial of the Liverpool merchants, and of the reply to the same, wrote in part as follows:
“It may be inferred from this that the Government will persist in their efforts to enforce the provisions of the Enlistment Act through the Courts, reserving to themselves an avenue of escape, by reason of any failure to be supplied with evidence of intent to violate them. Whether they expect the duty of looking this up to be performed by us, or they design to seek it also from other sources, does not clearly appear.” (Am. App., vol. i, p. 671.)
On the 16th of September, 1863, Mr. Adams, in a letter to Earl Russell, while describing the great danger threatening the United States in the building of the rams by the Lairds at Liverpool, said in part as follows:
“And here your lordships will permit me to remind you that Her Majesty’s Government cannot justly plead the inefficacy of the provisions of the enlistment law to enforce the duties of neutrality in the present emergency as depriving them of the power to prevent the anticipated danger. It will doubtless be remembered that the proposition made by you, and which I had the honor of being the medium of conveying to my Government, to agree upon some forms of amendment of the respective statutes of the two countries, in order to make them more effective, was entertained by the latter, not from any want of confidence in the ability to enforce the existing statute, but from a desire to co-operate with what then appeared to be the wish of Her Majesty’s Ministers. But, upon my communicating this reply to your lordship, and inviting the discussion of propositions, you then informed me that it had been decided not to proceed any further in this direction, as it was the opinion of the Cabinet, sustained by the authority of the Lord Chancellor, that the law was fully effective in its present shape.” (Am. App., vol. ii, p. 378; vol. vi, p. 673. Brit. App., vol. ii, p. 364.)
On the 25th of September, 1863, Earl Russell replied to Mr. Adams in part as follows:
“There are, however, passages in your letter of the 16th, as well as in some of your former ones, which so plainly and repeatedly imply an intimation of hostile proceeding toward Great Britain on the part of the Government of the United States, unless steps are taken by Her Majesty’s Government which the law does not authorize, or unless the law, which you consider as insufficient, is altered, that I deem it incumbent upon me, in behalf of Her Majesty’s Government, frankly to state to you that Her Majesty’s Government will not be induced by any such consideration either to overstep the limits of the law, or to propose to Parliament any new law which they may not, for reasons of their own, think proper to be adopted. They will not shrink from any consequences of such a decision.” (Am. App., vol. i, p. 674; vol. ii, p. 384. Brit. App., vol. ii, p. 374.)
On the 16th of February, 1864, Earl Russell spoke in the House of Lords in part as follows:
“Referring again to the Alabama, the noble earl seems to be much shocked because I said that that case was a scandal, and in some sense a reproach upon British law. I say that here, as I said in that dispatch. I do consider that, having passed a law to prevent the enlistment of Her Majesty’s subjects in the service of a foreign power, to prevent the fitting out or equipping, within Her Majesty’s dominions, of vessels for warlike purposes without Her Majesty’s sanction; I say that, having passed such a law in the year 1819, it is a scandal and a reproach that one of the belligerents in this American contest has been enabled, at the order of the confederate government, to fit out a vessel at Liverpool in such a way that she was capable of being made a vessel of [Page 246] war; that, after going to another port in Her Majesty’s dominions to ship a portion of her crew, she proceeded to a port in neutral territory and there completed her crew and equipment as a vessel of war, so that she has since been able to capture and destroy innocent merchant vessels belonging to the other belligerent. Having been thus equipped by an evasion of the law, I say it is a scandal to our law that we should not be able to prevent such belligerent operations. I venture to say so much, because at the Foreign Office I feel this to be very inconvenient. If you choose to say, as you might have said in former times. ‘Let vessels be fitted out and sold; let a vessel go to Charleston, and there be sold to any agent of the confederate government,’ I could understand such a state of things. But if we have a law to prevent the fitting out of warlike vessels, without the license of Her Majesty, I do say this case of the Alabama is a scandal and a reproach. A very learned judge has said that we might drive, not a coach and six, but a whole fleet of ships through that act of Parliament. If that be a correct description of our law, then I say we ought to have the law made more clear and intelligible. This law was said to be passed to secure the peace and welfare of this nation, and I trust it may be found in the end sufficient for that purpose. I say, however, that while the law remains in its present state its purpose is obviously defeated, and its enactments made of no effect by British subjects who defy the Queen’s proclamation of neutrality.” (Am. App., vol. v, p. 528.)
On the 30th of August, 1865, the British Foreign-Enlistment Act remaining unchanged, and the rebellion in the United States having been crushed, Earl Russell wrote Mr. Adams in part as follows:
“You say, indeed, that the Government of the United States altered the law at the urgent request of the Portuguese minister. But you forget that the law thus altered was the law of 1794, and that the law of 1818, then adopted, was, in fact, so far as it was considered applicable to the circumstances and institutions of this country, the model of our Foreign-Enlistment Act of 1819.
“Surely, then, it is not enough to say that your Government, at the request of Portugal, induced Congress to provide a new and more stringent law for the purpose of preventing depredations, if Great Britain has already such a law. Had the law of the United States of 1818 not been already, in its main provisions, adopted by our legislature, you might reasonably have asked us to make a new law; but, surely, we are not hound to go on making new laws ad infinitum because new occasions arise.
“The fact is, this question of a new law was frequently discussed; but the conclusion arrived at was, that unless the existing law, after a sufficient trial, should be proved to be practically inadequate, the object in view would not be promoted by any attempt at new legislation.” (Am. App., vol. i, p. 677; vol. iii, p. 562.)
On the 18th of September, 1865, Mr. Adams replied to Earl Russell in part as follows:
“The British law is, as your lordship states, a re-enactment of that of the United States, but it does not adopt all of ‘its main provisions,’ as you seem to suppose. Singularly enough, it entirely omits those very same sections which were originally enacted in 1817, as a temporary law on the complaint of the Portuguese minister, and were made permanent in that of 1818. It is in these very sections that our experience has shown us to reside the best preventive force in the whole law. I do not doubt, as I had the honor to remark in my former note, that if they had been also incorporated in the British statute, a large portion of the undertakings of which my Government so justly complains would have never been commenced; or, if commenced, would never have been executed. Surely it was not from any fault of the United States that these effective provisions of their own law failed to find a place in the corresponding legislation of Great Britain. But the occasion having arisen when the absence of some similar security was felt by my Government to be productive of the most injurious effects, I cannot but think that it was not so unreasonable, as your lordship seems to assume, that I should hope to see a willingness in that of Great Britain to make the reciprocal legislation still more complete. In that hope I was destined to be utterly disappointed. Her Majesty’s government decided not to act. Of that decision it is no part of my duty to complain. The responsibility for the injuries done to citizens of the United States by the subjects of a friendly nation, by reason of this refusal to respond, surely cannot be made to rest with them. It appears, therefore, necessarily to attach to the party making the refusal.” (Am. App., vol. i, pp. 679, 680.)
On the 2d of November, 1865, Earl Russell wrote to Mr. Adams in part as follows:
“Yet it appears to me, I confess, that as neither the law of the United States nor our own Foreign-Enlistment Act have proved upon trial completely efficacious, it is worth consideration whether improvements may not be made in the statutes of both nations, so that for the future each government may have in its own territory as much security as our free institutions will permit against those who act in defiance of the intention of the sovereign, and evade the letter of its laws.” (Am. App., vol. iii, p. 588.)
On the 18th of November, 1865, Mr. Adams replied to the Earl of Clarendon, successor of Earl Russell, in part as follows:
“Yet with regard to the proposition immediately before me, I cannot forbear to observe that it is predicated upon an assumption that the legislation of the two countries [Page 247] is now equally inefficacious, which I cannot entertain for a moment. On the contrary, the necessity for some action in future seems to me to be imperative, because that legislation, as it now stands, is not co-extensive.
“For it is hardly possible for me to imagine that the people of the United States, after the experience they have had of injuries from the imperfection of British legislation, and a refusal to amend it, would be ready cheerfully to respond to another appeal like that made in 1855, by Her Majesty’s representative, to the more stringent and effective protection extended by their own.” (Am. App., vol. iii, p. 621.)
On the 14th of December, this last dispatch having been transmitted to Mr. Seward, he wrote Mr. Adams in part as follows:
“I am directed by the President to approve of the views which you have expressed in regard to a proposition made by Earl Russell for a concurrent revision by the two Governments of their legislation upon the subject of the neutrality laws. You will, therefore, inform Lord Clarendon that the United States do not incline toward an acceptance of Earl Russell’s proposition.” (Am. App., vol. iii, p. 625.)
On the 30th of January, 1867, a Commission was appointed by the Queen—
“To inquire into and consider the character, working, and effect of the laws of this realm, available for the enforcement of neutrality during the existence of hostilities between other states with whom we are at peace; and to inquire and report whether any and what changes ought to be made in such laws for the purpose of giving to them increased efficiency, and bringing them into full conformity with our international obligations.” (Am. App., vol. iv, p. 79.)
During the year 1868, the Commission reported that in their opinion the Foreign-Enlistment Act “might be made more efficient by the enactment of” certain provisions. See the report. (Am. App., vol. iv, p. 80.)
The British Foreign-Enlistment Act of August 9, 1870, which was passed just after the breaking out of the Franco-Prussian War, essentially embodies all the recommendations of the Commission. (See the Act, Am. App., vol. vii, pp. 1–9. See also extracts from the debates at the time of its passage, ante.)