[Opinions of Sir Alexander Cockburn.]

The indirect claims at first insisted on by the Government of the United States being now out of the question, we have to deal with the claims for damages, “growing out of the acts” of certain specified vessels, as to which it is alleged that, by reason of some default on the part of the government of Her Majesty the Queen of England, these vessels were enabled to take and destroy ships and cargoes belonging to citizens of the United States. Causes of complaint brought forward by the United States.

The causes of complaint put forward by the United States Govern-ernment may be classed under the following heads:

That by reason of want of due diligence on the part of the British government, vessels were allowed to be fitted out and equipped, in ports of the United Kingdom, in order to their being employed in making war against the United States, and, having been so equipped, were allowed to quit such ports for that purpose.
That vessels fitted out and equipped for the before-mentioned purpose, in contravention of the foreign-enlistment act, and being therefore liable to seizure under that act, having gone forth from British ports, but having afterward returned to them, were not seized as they ought to have been, but, having been allowed hospitality in such ports, were suffered to go forth again, to resume their warfare against the commerce of the United States.
That undue favor was shown in British ports to ships of war of the Confederate States in respect of the time these ships were permitted to remain in such ports, or of the amount of coal with which they were permitted to be supplied.
That vessels of the Confederate States were allowed to make British ports the base of naval operations against the ships and commerce of the United States.

Owing to all or some one or other of these causes, vessels of the Confederate States were enabled, it is alleged, to do damage to the commerce of the United States; and compensation is claimed in respect of the damage so done.

The treaty of Washington, from which our authority is derived, lays down, for our guidance in dealing with and deciding on these claims, certain rules as to the obligations of Great Britain as a neutral state, which for the purpose of this arbitration are to be taken to have been binding on it. The treaty of Washington.

Not, indeed, that the British government admits that these rules form part of the law before existing between nations. On the contrary, it is expressly stated that “Her Britannic Majesty has commanded her high commissioners and plenipotentiaries to declare that Her Majesty’s government cannot assent to the foregoing rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article I arose, but that Her Majesty’s government, [Page 231] in order to evince its desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, agrees that, in deciding the questions between the two countries arising out of those claims, the arbitrators should assume that Her Majesty’s government had undertaken to act upon the principles set forth in these rules. And the high contracting parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them.”1

The rules in question are as follows:

A neutral government is bound—

  • First. To use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.
  • Secondly. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.
  • Thirdly. To exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.1

With these rules before it, the tribunal is directed to determine as to each vessel, “whether Great Britain has, by any act or omission, failed to fulfill any of the duties set forth in such rules, or recognized by the principles of international law not inconsistent with such rules.”

The effect of this part of the treaty is to place this tribunal in a position of some difficulty. Every obligation for the non-fulfillment of which redress can be claimed presupposes a prior existing law, by which a right has been created on the one side and a corresponding obligation on the other. But here we have to deal with obligations assumed to have existed prior to the treaty, yet arising out of a supposed law created for the first time by the treaty. For we have the one party denying the prior existence of the rules to which it now consents to submit as the measure of its past obligations, while the other virtually admits the same thing; for it “agrees to observe the rules as between itself and Great Britain in future, and to bring them to the knowledge of other maritime powers, and invite them to accede to them”—all of which would plainly be superfluous and vain if these rules already formed part of the existing law recognized as obtaining among nations. Difficulty arising from the treaty.

It is, I cannot but think, to be regretted that the whole subject-matter of this great contest, in respect of law as well as of fact, was not left open to us, to be decided according to the true principles and rules of international law in force and binding among nations, and the duties and obligations arising out of them, at the time when these alleged causes of complaint are said to have arisen.

From the history of the treaty of Washington we know that it was proposed by the British commissioners to submit the entire question, both as to law and fact, to arbitration; but the commissioners of the United States refused to “consent to submit the question of the liability of Great Britain to arbitration unless the principles which should govern the arbitrator in the consideration of the facts could be first agreed upon.” In vain the British commissioners replied that they “should be willing to consider what principles should be adopted for observance in [Page 232] future, but that they were of opinion that the best mode of conducting an arbitration was to submit the facts to the arbitrator, and leave him free to decide upon them after hearing such arguments as might be necessary.” The American commissioners replied that they should be willing to consider what principles should be laid down for observance in similar cases in future, but only with the understanding that “any principles which should be agreed upon should be held to be applicable to the facts in respect to the Alabama claims.” The British commissioners and government gave way, possibly without fully appreciating the extent to which the principles of which they were thus admitting the application would be attempted to be carried in fixing them with liability.

How this apparent anomaly arose is plain. Her Majesty’s government, animated by a high sense of justice and by an earnest desire of conciliation, were anxious to remove every possible cause of complaint or sense of wrong which the Government and people of the United States had, or believed themselves to have, against Great Britain as to matters arising out of the civil war; they were willing that if, through any errrors or shortcomings on the part of British authorities, injury had been caused to American subjects, full redress should be afforded; they were willing that the question should be determined by an independent and impartial tribunal; and though they would naturally have preferred that the matters in dispute between the two countries should be decided by what they believed to be the rules of international law governing the case, rather than that, if the decision should be in favor of Great Britain, the American people should feel that the contest had not been determined according to what, in their view, were the principles applicable to it, Her Majesty’s Government gave way to the desire of that of the United States, and consented that the rules by which it was agreed that the duties and obligations of the two nations should be governed in any future case should be taken to be the measure of the past obligations and duties of Great Britain with reference to the subject-matters of the dispute.

It was a great and generous concession, and though the effect of it might be a pecuniary sacrifice on the part of Great Britain, it was one which was cheerfully made on the one side, and I trust will not fail to be appreciated in the same generous spirit on the other.

If, however, the differences which have unhappily arisen between the United States and Great Britain were to be determined, not according to the rules of international law which the arbitrators to be agreed on should determine to be applicable to the case, but according to rules to be settled by the contending parties themselves, then I cannot but wish that the framers of this treaty had been able to accomplish the difficult task, now left to us, of defining more precisely what is meant by the vague and uncertain term “due diligence,” and had also set forth the further “principles of international law, not inconsistent with the rules laid down,” to which reference is made as possibly affecting the liability of Great Britain.

To some of the heads of complaint hereinbefore referred to, this observation does not indeed apply. Whether vessels, which might originally have been seized, should have been so dealt with when they reentered British ports, or whether they were protected by the commissions they had in the mean, while received from the confederate government; whether confederate ships of war were permitted to make British ports the base of naval operations against the United States; whether the accommodation afforded to them in British ports constituted [Page 233] a violation of neutrality, for which Great Britain can be held liable, are questions which are left to be decided and must be decided according to the rules of international law alone.

But when we have to deal with the far more important question of the liability of Great Britain by reason of the omission to use “due diligence” to prevent the equipment of vessels of war in her ports, as required by the treaty, we find nothing in the treaty to direct us as to the meaning of that term, especially as regards the degree of diligence which is to be understood to be required by it.

Left in this difficulty, we must endeavor to determine for ourselves the extent and meaning of the “due diligence” by which we are to test the alleged shortcomings of the government of Great Britain. For, it is plain that the standard of “due diligence” ought not to be left to the unguided discretion of each individual arbitrator. The municipal law of every country, wherever diligence is required by the law, whether in respect of obligations arising out of contract, or in regard to the due care which every one is bound to exercise to avoid doing harm to the persons or property of others—ne alienum lœdat—prescribes some standard by which the necessary degree of diligence may be tested.

Dealing here with a matter appertaining to law, it is to juridical science that we must look for a solution of the difficulty. And since we have to deal with a question of international law, although, it is true, of an exceptional character, it seems to me that it will be highly useful to endeavor to form a clear view of the reciprocal rights and duties between belligerents and neutrals, created by international law generally, and of the diligence necessary to satisfy the obligations which that law imposes. I cannot concur with M. Staempfli, that, because the practice of nations has at times undergone great changes, and the views of jurists on points of international law have often been and still are conflicting, therefore there is no such thing as international law, and that, consequently, we are to proceed independently of any such law—for such is the eifect of his reasoning, if I understand it rightly—according to some intuitive perception of right and wrong, or speculative notions of what the rules as to the duties of neutrals ought to be. It seems to me that when we shall have ascertained the extent to which a neutral state is responsible, according to the general law of nations, for breaches of neutrality committed by its subjects, and the degree of diligence it would be called upon to exercise under that law, in order to avoid liability, we shall be better able to solve the question of what constitutes due diligence in the terms of the treaty of Washington. That treaty may have admitted a liability in the respect of the equipment of ships where none existed by international law before, as I certainly think it has; but the degree of diligence required of a neutral government to prevent breaches of neutrality by its subjects must be determined by the same principles, whatever may be the nature of the particular obligation.

Besides the necessity of thus considering the relation of belligerents and neutrals with reference to the subject of “due diligence,” we have further, in order to satisfy the exigency of the articles of the treaty, to consider whether, besides in the omission of “due diligence,” Great Britain has failed to fulfill any duty imposed by any principle of international law not inconsistent with the rules laid down. It is clear also that, with reference to the other heads of complaint, our decision must necessarily depend entirely on the rules of international law applicable thereto. It seems to me, therefore, desirable, in the first place, to endeavor to take an accurate survey of the law by which the relative [Page 234] rights of belligerents and neutrals are fixed and determined, as essential to the solution of the questions we are called on to decide.

I proceed, therefore, to consider the subject of neutral obligations in time of war.

Neutrality may be said to be the status of a country relatively to two others which are at war with one another, while it remains at peace with both, and gives assistance to neither. Elements of neutrality.

The last-mentioned condition is plainly an essential element of that which goes before it; for, to give assistance to either of the belligerents would be indirectly to take a part in the war, and would afford a sufficient reason to the one whose enemy was thus assisted, for having recourse to force to prevent such assistance from being given.

It is obviously immaterial in what form the assistance is rendered, so long as its purpose and effect is to add to the means of the belligerent for the purpose either of offense or defense. Troops, men, horses, ships, arms, munitions of war of every kind, money, supplies—in short, whatever can add to the strength of the belligerent for the purpose either of attack or defense—are things that cannot be supplied by a neutral state to either belligerent without forfeiting the character of neutrality and the rights incidental to it. Obligations of the neutral state.

In like manner the neutral sovereign cannot allow the use of his territory for the passage of troops of either belligerent, still less allow it to be used by either as a base of hostile operations. He cannot lend his ships for the transport of troops, arms, or munitions of war, or even for the transmission of dispatches. Whatever restrictions, in the exercise of his territorial rights, he imposes on the one belligerent, he must impose on the other also; for restraints—however lawful and proper in themselves—enforced as against the one, dispensed with as regards the other, are indirectly assistance given to the one so favored.

Whatever obligations attach by the general principles of the law of nations to the state or community, as a whole, are equally binding on its subjects or citizens. For the state or community is but the aggregate of its individual members and whatever is forbidden to the entire body by that law, is equally forbidden to its component parts. In this sense, and in this sense only, can it be said that international law—in other words, the common law of nations—forms part of the common law of England; for the greater part of the rules of international law, by which nations now consent to be bound, are posterior in date by many centuries to the formation of the common law of England. Nevertheless, Great Britain forming part of the great fraternity of nations, the common law adopts the fundamental principles of international law, and the obligations and duties they impose, so that it becomes, by force of the municipal law, the duty of every man, so far as in him lies, to observe them; by reason of which any act done in contravention of such obligations becomes an offense against the law of his own country. Obligations of the subjects of a neutral state.

But the subject who thus infringes the law of his own country by violating the neutrality which that law enjoins him to maintain, is amenable for his offense to the law of his own country alone, except when actually taking part in the war as a combatant, when, of course, he is liable to be dealt with according to the laws of war. The offended belligerent has otherwise no hold on him. International law knows of no relations between a state and the subjects of another state, but only of those which exist between state and state. But this being so, the belligerent, against whom a breach of neutrality has been committed by the subject of a neutral [Page 235] state, as distinguished frorn the state itself, may have a right to hold the state responsible, and to look to it for redress. For the state, that is, the community as a whole, is bound to restrain its individual members from violating obligations which, as a whole, it is bound to fulfill. Liability of the state for acts of its subjects.

Not, however, that the responsibility of the state for the acts of its subjects is absolute and unlimited. Reason has set bounds to a responsibility which would otherwise be intolerable. For it must be remembered that the consequence of a violation of neutrality is the right of the offended belligerent to treat the offending neutral as an enemy, and declare war against him. He is not bound to accept pecuniary amends as an alternative.

Now, reason points out that the government of a country can only be held responsible for breaches of neutrality committed by its subjects, when it cau reasonably be expected to prevent them.

There are things which a government can prevent, and others which it cannot. It can prevent things that are done openly and in defiance of law. The open levying of men, and expeditions departing from its territory by land or water, are things which a government would properly be expected to prevent, and for which, if not prevented, it would be answerable.

But a government could not be so held in respect of things it cannot present; such as the conduct of individual subjects in enlisting or serving in the land or sea force of a belligerent, or things done clandestinely or surreptitiously, so as to elude observation or detection, notwithstanding the exercise of proper diligence to prevent the law from being broken. But then the exercise of such diligence is part of the duty of a government, and the condition of its immunity. If this diligence has been wanting, a belligerent has just cause to hold the neutral state responsible for wrongful nets done by its subjects, in violation of neutrality, and from which he, the belligerent, has suffered. We are thus brought face to face with the all-important question of what is this “diligence” which a government is thus bound to exercise to prevent breaches of neutrality by its subjects. I shall endeavor presently to grapple with that question; but I prefer first to complete my survey of the relative rights and obligations of belligerents and neutrals.

And as the principal complaint against the British government relates to vessels of war furnished by its subjects to the Confederate States, I shall, in the first place, apply myself to the question how far the subjects of a neutral state can, consistently with the obligations of neutrality, supply a belligerent with articles of warlike use in the way of trade and business.

For, thus far, we have been dealing with assistance rendered to one belligerent against another, animo adjuvandi, for the direct purpose of enabling him to overcome or resist his opponent. Very different considerations present themselves when we have to deal with assistance furnished to a belligerent, not animo adjuvandi, with the object of enabling him to overcome his enemy, but animo commercandi—in the way of trade and commerce. Rights of neutral subjects in respect of trade.

Here a broad and important distinction between the state and its subjects presents itself. The former, generally speaking, cannot, consistently with neutrality, under any circumstances, supply to one of two belligerents articles which maybe of use to him in carrying on war. For, as governments do not engage in trade, save in exceptional cases of very rare occurrence—as, for instance, when a government disposes of ships for which it has no use—nothing supplied by a government to a belligerent can be supplied [Page 236] otherwise than animo adjuvandi; that is, for a purpose inconsistent with neutrality. But its subjects stand, in this respect, on a very different footing. The subject, indifferent to both the belligerent parties, may be willing to sell to either articles of warlike use in which he is in the habit of dealing. Assistance, and sometimes very material assistance, is thus afforded to a belligerent, who, by this means, is enabled to carry on war. Is assistance thus afforded, not animo adjuvandi, but animo commercandi, a breach of neutrality, or is it to be considered as within the right of the neutral subject? Difference between a State and its subjects in regard to trade.

Now, the subjects of a neutral state having in time of peace the right of carrying on trade with a belligerent, on what ground of reason or justice, it may be asked, should their right of peaceful trade be taken away, and their interests thus be damaged by reason of a war which they have had no share in bringing about, and in which they have no concern? The condition of neutrality, in not supplying anything to either belligerent with the object of assisting him against the other, or which would not be as readily supplied to the other, being observed, what reason can be suggested why the rights of the neutral in his relations with either belligerent, as they existed before war broke out, should be disturbed or altered?

An Italian jurist thus writes:

Il fatto della vendita degli oggetti di contrabbando avvenuta in territorio neutale è opera dello stato stesso nella sua qualità di persona pubblica, o invece è l’operato di suoi privati cittadini, che fanno di ciò la loro abituale professione. Nel primo caso è fuor di dubbio che vi sarebbe motivo di lagnanza per parte di uno dei belligeranti, poichè non entra negli officii dello stato l’attendere a privati mercimonii, ed ogni suo atto ha un valore internazionale o in senso di un diritto o in senso di una obbligazione, che non si può mai dissimulare. Ma lo stesso non si può dire ove la vendita degli oggetti, e quando sia il caso la fabbrica degli stessi, fosse il fatto particolare di privati cittadini di quello stesso stato. In esso non potrebbe ravvisarsi un fine politico come nell’ azione pubblica del governo, non essendo lo scopo di tali cittadini che commerciale od industriale, epperò non lesivo in modo alcuno degli altrui diritti.

Se gli autori che hanno discusso la presente questione avessero ritenuta la capitate differenza che passa tra gli atti pubblici del governo e quelli dei privati cittadini, non avrebbero al certo classificato come atti contrari alla condizione neutrale la vendita fatta in territorio neutro da privati cittadini di armi e munizioni da guerra.1

Nevertheless, it is certain that the rights of a nation, as regards trade with another nation, do undergo very considerable modifications, when such second nation engages in war with a third; and when it is said by some writers that neutrality is only the prolongation of the state of peace between the neutral and the belligerent, this language must be taken with considerable allowance. For, it is certain that, as regards trade and commerce, the rights of the peaceful neutral undergo very serious diminution. By the admitted rules of international law, a belligerent may seize articles contraband of war in transit by sea from the neutral to his enemy. By blockading his enemy’s port he may shut the commerce of the neutral even in articles not capable of being applied to warlike use. True, say those writers who advocate the rights of neutrals against belligerents; but if the rights of the neutral subject in respect of trade had been regulated according to natural law, or, to speak more philosophically, according to the law which reason points out as for the common benefit of all, those rights would have remained undisturbed and unaffected by the wars of others with whom his own country remained at peace. But between distant nations trade can be carried on only by sea. The nations most powerful at sea have generally been those who have waged war on the ocean. [Page 237] In such wars they have sought to weaken their adversaries by crippling their commerce, and to effect that object have imposed restraints on peaceful states less powerful than themselves. Some countries have even gone so far, in early times, as to interdict all commerce whatever with nations with which they were at war. The sense of mankind, it is true, revolted against pretensions so extravagant, and after a time the restraints which belligerents were entitled to impose on neutral commerce were rendered less oppressive. But they still bear the impress of their origin, as having been imposed by the strong upon the weak. They are manifestly in derogation of the common right of peaceful trade which all maritime nations enjoy in time of peace, but which is thus made to submit to restraint in order to serve the purposes of those by whom the peace of the world is disturbed. Effect of war on neutral trade.

Let us see how these restraints on neutral commerce became settled in time. As they existed till a very recent period, according to the general practice of nations, they were as follows:

Though the belligerent might resort to the neutral territory to purchase such articles as he required, even for his use in war, and the neutral in selling him such articles would be guilty of no infraction of neutrality, yet, in regard to things capable of being used in war, and which thenceforth received the appellation of “contraband of war,” if, instead of the belligerent himself conveying them, the neutral undertook to convey them, such articles, if intercepted by the adversary, though the property of the neutral in them had not been transferred to the belligerent, were liable to be seized and became forfeited to the captor. If the article was of a doubtful character, ancipitis usus, that is, one that might be applied to purposes of peace or of war, the liability of seizure depended on whether the surrounding circumstances showed that it was intended for the one use or the other.
If either belligerent possessed sufficient force at sea to bar the access to a port belonging to his enemy, he was entitled to forbid the neutral all access to such port for the purpose of trade, however innocent and harmless the cargo with which his ship might be charged, under the penalty of forfeiting both ship and cargo.
The neutral was prohibited from carrying the goods of a belligerent, such goods not being protected by the neutral flag, but being subject to seizure.
Besides this, according to the practice of France, the neutral was prohibited from having his goods carried in the enemy’s ship, and if the ship was taken the goods became prize.

Lastly, to enforce the rights thus assumed by powerful belligerents, the neutral had further to submit to what was called the right of search, in order that the belligerent might satisfy himself whether goods of the enemy, or goods contraband of war intended for the enemy, were being conveyed in the neutral ships.

By the wise and liberal provisions of the declaration of Paris of 1856, the last two oppressive restraints on the trade of neutrals, mentioned under heads 3 and 4, have, as between most of the leading nations of the world, been done away with. The others remain. America has not as yet formally assented to the declaration of Paris. The two rules in question do not, however, come into play on this occasion.

But the two first of the restraints put on neutral commerce occupy a prominent place in the discussions which have occurred in the course of this inquiry. Both of them are manifestly restraints, and restraints of a very serious character, on the natural freedom of neutral commerce. The advantage thus acquired of preventing [Page 238] the trade of the neutral in articles of warlike use, at a time when that trade is the most likely to be profitable to him, and still more that of preventing it in any shape by the blockading of an enemy’s port, is obviously obtained only at the expense of the peaceful rights of neutral commerce. Blockade and contraband of war.

The right of blockading a port, and thereby excluding from it neutral commerce of every sort, has been justified by assimilating it to that exercised by the besieger of a city or fortress, in investing it and debarring all access to it. But the analogy is not complete, for the immediate purpose of the besieger is to take the city or fortress, while that of the blockade is, not to capture the blockaded port, but to enfeeble the enemy and diminish his means by the gradual destruction of his commerce, which of course necessarily involves a corresponding loss inflicted on the commerce of the neutral. And though it may be said that, just as the besieger of a city or fortress is in occupation of the territory which surrounds it, and is, therefore, by the law of war, master of such territory and entitled to give laws to all within its ambit, and has thus full right as well as power to forbid access to it, so the blockading force has occupation of the territorial waters and can exercise a similar right in respect of them; yet for the most part such occupation is constructive only, and the blockading force is generally in the habit of sending cruisers tar beyond the limits of the territorial waters, to intercept vessels intending to enter the blockaded port.

On whatever ground the right of blockade thus conceded to belligerents may be placed, it is obvious that it is a very serious encroachment on the freedom of the neutral in the peaceful pursuit of commerce.

In M. Calvo’s work, “Le droit international,” blockade is spoken of as “la plus grave atteinte qui puisse être portée par la guerre au droit des neutres.1

Fiore says: “Le blocus est odieux et coutraire à l’indépendance des peuples neutres; parcequ’il n’empêche pas seulement le commerce de certaines matières déterminees, comme la contrebande de guerre; mais il détruit toute espèce de commerce de quelque nature que ce soit avec les lieux assiégés et bloqués.”2

Nor must it be forgotten, with respect to the trade carried on in defiance of a blockade, that the neutral owes nothing to the blockading belligerent, who, for his own purposes, thus seeks to shut out the innocuous commerce of the neutral with his enemy, regardless of the loss and injury he is thereby inflicting on him.

The right to intercept articles of warlike use has been for the most part treated by earlier writers on international law as an admitted encroachment on the neutral in respect of freedom of trade. It has been justified on the score of the necessity in which the belligerent captor is placed, of preventing that which will be used to his own hurt from reaching his adversary; or as arising from the law of self-defense, which gives to the belligerent the right of stopping things which may be used against him, while on their way to his enemy, and, furthermore, of confiscating them to his own use as a penalty on the neutral for having intended to convey them to the enemy. Contraband of war.

Looked at from this point of view, it is said that the right of the belligerent to intercept this species of commerce, and the liability of the neutral to have his property captured and confiscated under such circumstances, do not arise out of obligations inherent in the nature of neutrality. They are purely conventional, and, as it were, a compromise [Page 239] between the power of belligerents and the rights of neutrals; and, if this species of trade can be said to be unlawful, it is only so sub modo, it being left free to the neutral to pursue it, subject always to the right of the belligerent to seize it during its transit to his enemy, if he can. “The right of the neutral to transport,” says that great jurist Chancellor Kent, “and of the hostile power to seize, are conflicting rights, and neither party can charge the other with a criminal act.”1

A different view respecting the trade of the neutral in articles of contraband of war has, however, been maintained in our day. M. Hautefeuille, and the writers of his school, look upon the supplying of articles of contraband of war by the neutral in the way of trade as inconsistent with the duty of neutrality, which prohibits the rendering of assistance to a belligerent for the purpose of a war in which he is engaged, extending the rule to articles of warlike use supplied in the way of trade as much as to those furnished gratuitously. Different view.
M. Hautefeuille.

According to this view, the neutral thus guilty of a breach of the first principle of neutrality justly incurs the penalty of his transgression in the confiscation and loss of his property.

This doctrine is open, however, to the objection that it is inconsistent with the practice of nations, according to which this species of trade has never been treated as a breach of neutrality in the full sense of the term. It wholly fails to account for or justify the right of blockade.

But the importance of this difference in the views of publicists will be more sensibly felt when we proceed to deal with the subject of the trade of the neutral with the belligerent in the country of the neutral. No obligation on neutral government to prevent trade in contraband of war, or with blockaded ports.

One thing is quite clear, and must not be lost sight of: Neither the trade in contraband of war nor that carried on in defiance of a blockade constitute, practically, any violation of neutrality, so far as the government of the neutral trader is concerned. Scarce any neutral government has ever attempted to prevent its subjects from carrying on such trade; no neutral government was ever held responsible, as for a breach of neutrality, for such trade carried on by its subjects. This is a point as to which there has been no difference of action among governments, or difference of opinion as to the duty of governments among writers on public law. It is one of those things which, on the part of its subjects, a government, according to the existing practice of nations, is not called upon to prevent. It is one of those things which the belligerent, who, in furthering his own purposes is indifferent to the loss he inflicts on the neutral, must submit to if he is unable to prevent it, and for which he is not entitled to hold the neutral state responsible. M. Ortolan

Speaking of the transport of articles contraband of war, M. Ortolan states the law most correctly:

Si c’est l’état neutre lui-même qui fait opérer ce transport, soit qu’il le fasse gratuitement, soit qu’il en reçoive le prix, il devient auxiliaire de la lutte, et par conséquent il rompt la neutralité. La chose change si ce sont les sujets de cet état qui, sans appui de leur gouvernement, font de ce même transport un objet de leurs opérations commerciales. Une puissance qui reste neutre n’est pas obligée de défendre ce commerce à ses sujets, encore moins de les punir pour l’avoir fait; seulement elle ne peut le couvrir de sa protection. En d’autres termes, le pavilion ne couvre pas les marchandises de contrebande de guerre, non pas même dans le cas où ces marchandises appartiennent à des neutres.2

Among the various articles coming under the denomination of contraband of war, according to the general principles of international law, two more particularly interest us ou the present [Page 240] occasion—ships of war and coals. Both are excluded from the category of contraband by M. Hautefeuille, who refuses to recognize as such anything which is not in its actually existing state ready to be used for attack or defense. The following passages from his work, “Des droits et des devoirs des nations neutres,” explain the views of the author on the subject of ships, which, till armed, he refuses to consider contraband of war, and which, whatever the construction, when unarmed, he holds to be objects of lawful commerce: Ships of war and coals.

Je ne puis comprendre qu’un bâtiment, quelles que soient sa grandeur, sa forme, sa destination, soit un objet de contrebande de guerre. Le navire n’est pas propre à la guerre, préparé pour servir exclusivemeut aux opérations militaires, apte à être employé à ces opérations, immédiateinent et sans aucun changement, sans aucune addition. Lorsqu’il est dépourvu des canons, des munitions, des amies et des hommes qui doivent les employer, ce n’est pas une machine de guerre; c’est un véhicule plus ou moins grand, plus ou moins solide, mais ce n’est qu’un véhicule. Pour lui donner les qualités spéciales et exclusives qui déterminent le caractère de contrebande de guerre, il est nécessaire de transporter à bord des canons, des armes, des munitions, en un mot, tout l’attirail du combat. C’est alors seulement que le bâtiment devient, non une machine de guerre, mais une machine portant des instruments de guerre et susceptibles de nuire, par cette circonstance seulement, au belligérant. Mais la machine elle-même, mais le véhicule dénué de son armement, ne peut être réputé nuisible. Au reste, il faut convenir que ce commerce est peu fréquent, et la meilleure preuve que je puisse donner de l’innocuité de ce négoce est le silence du droit secondaire à son égard.1 . . .

Les bâtiments non armés, construits dans les ports neutres et vendus aux nations engagés dans les hostilités, quelles que soient leur force, la nature de leur construction, sont également objets d’un commerce licite. Ils doivent être régis par la règle générale, qui est la liberté entière du commerce, entre les nations neutres et les deux belligérants.1

As to coal, M. Hautefeuille expresses himself as follows:

La houille est sans doute un auxiliaire indispensable des machines, mais elle ne saurait être considérée comme un instrument direct et exclusif de guerre; bien loin de là, les usages pacifiques auxquels elle est employée sont beaucoup plus importants que ceux qui résultent de l’état de guerre; et la consommation faite pour ces usages pacifiques est beaucoup plus considérable que celle nécessitée par les hostilités. D’après les règles du droit primitif, la houille est done une denrée dont le commerce doit toujours rester libre.

Je ne saurais prévoir comment les traités à intervenir entre les pennies navigateurs traucheront cette question; mais ce que je puis affirmer c’est que la houille, d’après le droit primitif, ne fait pas partie de la contrebande; c’est que la loi secondaire ne peut changer la nature des objets, ni leur donner un caractère qu’ils n’ont pas, d’après les principes qu’elle est appelée à appliquer, mais non à modifier.2

But the views of this eloquent and learned but theoretical author on this subject are not shared by other writers. Galiani, Hübner, (the champion of the rights of neutrals,) Martens, Tetens, Piantanida, Rutherford, Lord Stowell, Chancellor Kent, Heffter, in his able work, “Das europäische Völkerrecht der Gegenwart,” include ships among the things which are contraband of war. Among later writers, M. Ortolan and Sir Robert Phillimore place both ships and coal in the list of articles of contraband. I entirely concur in thinking that a ship adapted and intended for war is clearly an article of contraband. Such a ship is, in fact, a floating fortress, and, when armed and manned, becomes a formidable and efficient instrument of warfare. Coal, too, though in its nature ancipitis usus, yet, when intended to contribute to the motive-power of a vessel, must, I think, as well as machinery, be placed in the same category as masts and sails, which have always been placed among articles of contraband, except by M. Hautefeuille, who, as has been stated, insists that nothing is to be considered as contraband except what is capable of being immediately applied to the purpose of destructive warfare.

[Page 241]

It is perfectly clear, though I fear it has not always been kept in view in the course of these discussions, that, with the liability to the seizure and loss of the cargo, (in some instances, it is said, of the ship,) if he transmits contraband of war to the enemy of the belligerent captor, (and to the loss both of ship and cargo if he attempts to force a blockade,) ends, according to the existing practice of nations, all restraint on the trade and commerce of the neutral. In his own country, in his own markets, in his own factories, the neutral may, according to the practice of nations, sell articles to the belligerent which, if sent by sea, would be contraband of war. Theoretical writers are not, indeed, of one mind on this subject. While the great majority of authors are agreed as to the right of the neutral to sell, in the way of trade, to the belligerent resorting to his market, whatsoever the latter desires to buy, if the neutral has it to sell, whether the article be of an innocent character or contraband of war in its most destructive form, a few authors have recently written in a different spirit. Passive commerce of the neutral.

No writer on international law before Galiani had ventured to assert that the neutral was prohibited from selling, in his own country, to a belligerent, articles which, if sent out of his country by sea, would be liable to siezure as contraband of war. His doctrine to that effect was vigorously refuted by his two distinguished countrymen, Lampredi and Azuni, and was for a time abandoned as untenable; but it has been revived in our day. Let us review the leading authorities. The question is not only of interest to the jurist, but one which will be found to be important to some of the decisions of this tribunal.

Lampredi, in his work on neutral commerce, refutes the opinion of Galiani. On the general subject, (l quote from Peuchets’ French translation, not having the original before me,) he writes as follows: Lampredi.

Lorsqu’une fois l’on a établi la seule loi que les peuples neutres doivent observer pendant la guerre, il devient inutile de demander quelles doivent être les limites du commerce qu’ils font en conséquence de leur neutralité, parcequ’on peut répondre qu’il n’en doit avoir aucune, et qu’ils peuvent le faire de la même manière qu’ils le faisaient en temps de paix, observant seulement une exacte impartialité pendant tout le temps de la guerre. Il n’y aura donc aucune espèce de marchandises qu’ils ne puissent vendre et porter aux belligérants et l’on ne pourra pas les empêcher de leur vendre ou louer des navires, pourvu qu’ils ne refusent point à l’un ce qu’ils accordent à l’autre. Devant et pouvant suivre légitimement leur commerce comme en temps de paix, il ne doit y avoir aucune distinction de marchandises, d’argent, d’armes, et d’autres munitions de guerre: la vente et ne transport de ces divers objets dans les places des belligérants doivent être permis, et ne point porter atteinte à la neutralité, pourvu qu’il n’y ait ni faveur, ni préférence, ni esprit de parti.1

In chapter v, page 57, he treats the question whether neutrals may sell every kind of merchandise within the neutral territory to a belligerent, as one which no jurist anterior to Galiani had ever thought of bringing into controversy, all their discussions being confined to the carriage of contraband to the enemy. It is not, he explains, till they have left the neutral territory that articles, though of warlike character, assume the character of contraband. In chapter vii, page 72, he says:

Le caractère de contrebande ne vient donc pas, aux marchandises, de l’usage qu’on peut en faire dans la guerre, mais de tout autre source. Aussi longtemps qu’elles sont sur le territoire neutre, elles ne diffèrent pas des autres marchandises; elles s’y vendent et s’y achètent de la même manière et sans aucune différence. Deux circonstances font prendre à ces marchandises le caractère de contrabande: 1, qu’elles soient passées à la puissance de l’ennemi, ou à moins destinées à y passer; 2, qu’elles soient sorties du territoire neutre. Alors elles deviennent choses hostiles, res hostiles; elles prennent le caractère de marchandises de contrebande; et si elles sont trouvées hors de toute juridiction souveraine, comme, par exemple, si l’on les trouvait en pleine mer, ells peuvent [Page 242] être légitimement arrêtées et confisquées par l’ennemi, quel que soit le pavilion qui les couvre, non pas parce que ce soit des instruments ou provisions de guerre, mais parce que ce sont des choses appartenants à l’ennemi, ou au moins parce qu’elles sont destinées à devenir sa propriété et à accroître ses forces. D’où il résulte que le souverain qui permet, sur son territoire, le commerce libre de toutes sortes d’objets ne passe pas les droits de souveraineté, et les puissances belligérantes ne peuvent s’en plaindre ni l’accuser de donner la main à la vente des marchandises de contrebande, qui, sur son territoire, ne peuvent jamais avoir ce caractère, et ne peuvent en porter le nom que lorsqu’elles sont devenues ou destinées à devenir la propriété de l’ennemi, et sorties du territoire où elles ont été achetées.

In another work Lampredi, speaking of neutrality, says:

Et quia neutrius partis esse debet, et a bello omnino abstinere, neutri etiam suppeditabit quæ directe ad bellum referuntur. Suppeditare hie loci transvehere ad alterutrum hostem significat; nam si qua gens instrumenta bellica, et cœtera supra memorata utrisque bellantibus æquo pretio veluti merces vendat, neutralitatem non violat. Ad hanc necessariam mercaturæ distinctionem animum non advertisse eos, qui de hac re tam prolixe scripserunt, manifeste patet; maxime enim inter se differre videntur exportatio mercium ad hostem meum ab amico vel neutro populo facta, et eorum venditio, quæ ad bellum necessaria esse possunt.1

Azuni, who wrote shortly after Lampredi, maintains the same doctrine. In his work “Système universel de principes de droit maritime,” (ch. ii, art. 3,) he says: Azuni.

Le commerce général passif, ou la vente impartiale sur le propre territoire des neutres, de marchandises, denrées, ou manufactures, de toute espèce, sera toujours permis, pourvu que le souverain n’ait pas fait un traité particulier avec un des belligérants dont les sujets viennent faire des achats et des provisions sur le territoire neutre, et qu’il ne se mêle pas des achats, des ventes, et des autres contrats qui transmettent la propriété, qu’il n’ordonne pas qu’on remplisse les magasins de provisions de guerre, et ne fasse pas mettre ses navires à la voile pour les transporter sur le territoire du belligérant. En protégeant également le commerce de son pays, en permettant à ses sujets de continuer leur commerce de la même manière et avec la même liberté qu’avant la guerre, il ne fait qu’user de droits ineontestables, qui ne peuvent être limités que par des conventions spéciales, expressément ou tacitement faites.

After combating the reasoning of Galiani, he adds:

Il est nécessaire que je répète ici le principe incontestable que j’ai précédemment rapporté, qu’en suivant le droit conventionnel de l’Europe, les neutres ne peuvent porter les choses qui sont spécialement propres à la guerre, et qui y sont directement employés, mais qu’ils peuvent sans inconvénient, selon le droit universel des gens, les vendre comme marchandise sur leur propre territoire a quiconque se presente pour les acheter, puisqu’ils le font sans partialité, et sans montrer de faveur plutôt pour une partie belligérante que pour l’autre.

Reddie, in his “Researches Historical and Critical in Maritime and International Law,” cites these views with concurrence and approbation.

In Wheaton’s History of International Law, the author speaks of the refutation of Galiani by Lampredi as superfluous, as an “idle question.”

Massé, in his work “Le droit commercial dans ses rapports avec le droit des gens,” after maintaining the right of the belligerent to intercept contraband, adds: Masse.

Mais la thèse change s’il s’agit d’un commerce passif. S’il est défendu au neutre de porter des armes et des munitions aux belligérants, parcequ’alors il devient l’auxiliaire de l’un et l’ennemi de l’autre, il ne lui est pas défendu de vendre impartialement sur son territoire des objets nécessaires à la guerre, parceque son territoire est ouvert à tous, que tous peuvent venir y chercher ce dont ils ont besoin, et que le neutre qui se borne à vendre chez lui, à la différence de celui qui porte ses marchandises au belligérant, n’est pas tenu de rechercher qui les lui achète, pour qui elles sont achetées, et quelle est leur destination ultérieure. C’est alors qu’il est absolument vrai de dire que les neutres peuvent continuer pendant la guerre le commerce qu’ils faisaient pendant [Page 243] la paix, et que la neutralité est la continuation d’un état antérieur qui ne modifie pas la guerre à laquelle le neutre, qui ouvre son marché à toutes les nations, ne prend aucune part directe ou indirecte.1


Sur un territoire neutre, il n’y a pas de marcliandise de contrebande; toutes y sont libres. Elles ne deviennent contrebande qu’au moment où elles en sortent avec directions pour un lieu dont leur nature les exclut. C’est alors qu’elles tombent sous la juridiction des belligérants contre lesquels elles sont dirigées. Jusque-là et tant qu’elles restent en un lieu où elles ne peuvent leur nuire, ils n’ont pas le droit de s’occuper des transactions pacifiques dont elles peuvent être l’objet. Sans doute, la guerre donne une nouvelle impulsion au commerce passif des objets utiles à la guerre; mais cette impulsion n’est pas du fait des neutres, elle est du fait des belligérants, qui, après avoir eux-mêmes produit des circonstances nouvelles, ne peuvent trouver mauvais que les neutres en profitent dans les limites de leurs droits et de leur territoire.2

M. Ortolan observes as follows:

C’est seulement lorsque de telles marchandises sont en cours de transport pour une destination hostile qu’elles deviennent contrebande militaire. Lorsqu’un état neutre laisse ses sujets se livrer au commerce passif de ces mêmes objets, c’est-à-dire, lorsqu’il permet à tous les belligérants indistinctement de venir les acheter sur son territoire pour les transporter ensuite où bon leur semble, à leurs frais et à leurs risques, sur leurs propres navires marchands, il ne fait pas autre chose que laisser s’accomplir un acte licite; on ne peut pas dire qu’il prenne part à la guerre parce qu’il laisse ses ports libres, et parce qu’il conserve à toutes les nations le droit qu’elles avaient avant la guerre d’y entrer avec leurs bâtiments marchands pour s’y approvisionner, par la voie du commerce, des marchandises dont elles ont besoin; les vendeurs euxmêmes ne sont pas responsables de l’usage ultérieur qui sera fait de ces marchandises; ils ne sont pas tenus de connaître ni pour qui elles sont achetes ni la direction qu’on leur réserve. M. Ortolan.

Le droit conventionnel est d’accord avec ces principes; il ne défend pas la vente impartiale faite sur un territoire neutre des marchandises propres à la guerre. Mais si ces secours effectifs en nature, que l’un des combattants vient prendre et exporte à ses propres risques, étaient fournis par l’état neutrelui-même; si, par exemple, des armes, des projectiles, de la poudre étaient tirés de ses arsenaaux ou de ses manufactures pubiiques, ce ne serait plus là un commerce privé, et par conséquent il y aurait atteinte grave à la neutralité.3

Heffter, in his “Völkerrecht der Gegenwart,” (I cite from Bergson’s translation,) p. 315, says: Heffter

En ce qui concerne les objets de contrebande, la vente faite aux belligérants en territoire neutre ne saurait être considérée comme un acte illicite et contraire aux devoirs de la neutralité; ce n’est que leur transport qui en rend responsable.

Professor Sandona, of Siena, “Trattato di diritto internazionale moderno,” comparing passive with the active commerce of neutrals, says:

Dico adunque, che si crede a torto che faccia opera ad un di presso eguale, chi vende semplicemente nel proprio paese quanto immediatemente si riferisce ai mezzi di fare la guerra, e chi trasporta questi mezzi sui mercati o nelle piazze dei belligeranti. Il primo vende le sue merci nel proprio paese, ove non vi è, stando al puro diritto razionale, alcuna legge che gliene vieti il tratfico. E appunto perchè dimora in esso, e niente osta a questo commercio, egli non fa uso che della sua libertà, che d’altra parfce finchè rimane nel paese nativo, nessun principe straniero può limitare. . . . . La sola cosa che si può dimandare da lui è questa, che sia disposto a vendere egualmente a chiunque si presenta le sue merci, onde evitare il pericolo di offendere l’imparzialità, a cui i neutrali sono tenuti.

To these authors Professor Bluntschli has added the weight of his authority. Professor Bluntschli.

In his work entitled “Das moderne Völkerrecht,” or, as it is called in the French translation, “Le droit international codifié,” he writes:

Le fait qu’un état neutre fournit ou laisse fournir à un des belligérants des armes ou du matériel de guerre constitue également une violation des devoirs des neutres.

[Page 244]

Par contre, si des particuliers, sans avoir l’intention de venir en aide à l’un des belligérants, lui fournissent à titre d’entreprise commerciale des amies ou du matériel de guerre, ils courent le risque que ces objets soient confisquées par l’adversaire comme contrebande de guerre; les gouvernements neutres ne manquent pas à leur devoir en tolérant le commerce d’objets qui sont considérés comme contrebande de guerre. . . .

Celui qui transporte de la contrebande de guerre à l’une des parties belligérantes s’expose à voir ces objets confisqués. Mais l’état neutre n’a pas de motifs de s’opposer à l’expédition de la contrebande de guerre. Dans les discussions de la loi américaine sur la neutralité, le président Jefferson déclara en 1793 que la guerre étrangère ne privait point les particuliers du droit de fabriquer, de vendre ou d’exporter des armes; seulement les citoyens américains, ajoutait-il, exercent ce droit à leurs risques et périls.1

The opinion of Galiani has, however, been again revived by two or three writers in our own days.

Among these, Sir Robert Phillimore, in his work on International Law, vol. iii, § ccxxx, speaking “as to the permitting the sale of munitions of war to a belligerent within the territory of the neutral,” writes: Sir R. Phillimore.

If the fountains of international justice have been correctly pointed out in a former volume of this work, and it be the true character of a neutral to abstain from every act which may better or worsen the condition of a belligerent, the unlawfulness of any such sale is a necessary conclusion from these premises.

What does it matter where the neutral supplies one belligerent with the means of attacking another? How does the question of locality, according to the principles of eternal justice and the reason of the thing, affect the advantage to one belligerent or the injury to the other accruing from this act of the alleged neutral? Is the cannon or the sword, or the recruit who is to use them, the less dangerous to the belligerent because they were purchased, or he was enlisted, within the limits of neutral territory? Surely not. Surely the locus in quo is wholly beside the mark, except, indeed, that the actual conveyance of the weapon or the soldier may evidence a bitterer and more decided partiality, a more unquestionable and active participation in the war.

MM. Pistoye and Duverdy also, in their “Traité des prises maritimes,” express, though with less energy than the learned author last mentioned, a like view.

M. Hautefeuille, who, as we have seen, not only refuses to admit vessels equipped for war, if not armed, into the list of contraband of war, but also holds that they are legitimate articles of neutral commerce, nevertheless maintains that what is called the passive trade of the neutral in articles of warlike use is inconsistent with neutrality. His reasoning is as follows: M. Hautefeuille.

Cette question a été traitée avec beaucoup d’étendue par Lampredi et par Azuni; la doctrine de ces deux auteurs a été combattu par Galiani. Avant d’examiner l’opinion de ces publicistes, il me paraît indispensable de rappeler les bases de la discussion, de poser des prineipes qui, d’après la loi primitive, doivent la dominer. Ces principes out déjà été établis. Ils peuvent se résumer en deux droits et en deux devoirs. Les droits sont: 1. Liberté et indépendance du peuple neutre dans son commerce, en temps de guerre, même àvec les deux belligérants. 2. Liberté et indépendance absolues du neutre sur son propre territoire. Les deux devoirs sont corrélatifs aux deux droits, ils les limitent. Ce sont: 1. L’impartialité; 2. L’abstention de tous actes directs de guerre, et par conséquent de fournir aux belligérants les armes et les munitions de guerre. De ces droits il résulte, sans doute, que la nation pacifique a le pouvoir de commercer librement avecchacun des belligérants, non seulement sur son propre territoire, mais encore partout ailleurs, sans qu’aucun d’eux puisse s’y opposer; mais ce droit est borné par le devoir imposé au neutre cie ne fournir, ni à l’un ni à l’autre, des instruments actuellement et uniquement destinés à la guerre.

Cette limite mise par la loi primitive à la liberté des nations, s’étend-elle à tout le commerce, au commerce passif comme au commerce actif? Le devoir du neutre consistet-il uniquement à ne pas transporter les objets de contrebande dans les ports des belligérants; ou au contraire ne prohibe-t-il pas le fait de vendre, de fournir ces objets à ceux qui doivent s’en servir pour fi apper un ennemi? À mes yeux, la réponse à cette double question ne peut être douteuse. Le devoir imposé aux nations, qui désirent ne pas prendre par aux hostilités, et jouir de la paix au milieu des maux de la guerre, est de ne pas fournir [Page 245] des amies aux mains de ceux qui doivent s’en servir pour frapper. La loi naturelle, qui impose ce devoir, n’a pas fait de distinction entre le commerce actif et le commerce passif. Elle ne pouvait en faire, car l’un et l’autre ont le même résultat, celui de donner à l’un des belligérants le moyen de nuire à l’autre. Ce devoir est absolu; la restriction qu’il impose s’étend à toutes les manières de fournir à l’un des combattants l’arme dont il veut frapper son ennemi. C’est un devoir d’humanité; et il n’est pas moins inhumain de vendre des instruments homicides dans le port de Livourne que de les transporter dans celui de Londres ou de Marseille. La vente des denrées de contrebande aux belligérants est done prohibée sur le territoire neutre, de la même manière et par le même motif que le transport de ces denrées dans les ports des peuples en guerre.

Professor Casanova, in his recent work, “Del Diritto Internazionale,” adopts the views of M. Hautefeuille.

This difference of opinion arises from the different point of view from which each party considers the question. The one party assume that to supply a belligerent with articles of warlike use, though in the way of trade, is to take part in the war; assuming which, they say with truth, that it is the same thing whether the objectionable articles are sold to the belligerent in the country of the neutral or in his own. The other party, starting from the principle that, according to natural justice, the rights of the neutral should be left free and untouched by the wars of others, look on the existing restraints on the freedom of his commerce as encroachments on his rights, and considering these restraints as arising entirely from convention, deny the illegality of any trade, which the actual practice of nations does not prevent. The great authority of Chancellor Kent, and of the majority of writers, is in favor of the latter view.

But, in truth, the question does not depend on the lucubrations of learned professors or speculative jurists. However authoritatively these authors may take upon themselves to write, and however deserving their speculations may be of attention, they cannot make the law. International law is that to which nations have given their common assent, and it is best known as settled by their common practice.

Now, in all wars, neutrals have traded at home and abroad in articles contraband of war, subject always in the latter case to the chance of capture and confiscation. As I have already said, no government has ever been sought to be made responsible on that account. Assuredly, no nation has ever asserted the freedom of commerce in this respect more broadly than the United States, or acted up to its principles with greater pertinacity. Practice in former wars.

On the breaking out of the war between France and England in 1793, after a proclamation of neutrality by General Washington, then President, Mr. Jefferson, then Secretary of State, thus writes to Mr. Hammond, minister of Great Britain to the United States:

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.1 American authorities.

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The collectors of the customs at the different ports were instructed that—

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.1

In 1842, Mr. Webster writes:

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. If it be true, therefore, that citizens of the United States have been engaged in a commerce by which Texas, an enemy of Mexico, has been supplied with arms and munitions of war, the Government of the United States, nevertheless, was not bound to prevent it, and could not have prevented it without a manifest departure from the principles of neutrality, and is in no way answerable for the consequences. Such commerce is left to its ordinary fate, according to the law of nations.2

In his message to the American Senate, in December, 1854, President Pierce declares:

The laws of the United States do not forbid their citizens to sell to either of the belligerent powers articles contraband of war, or to 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 on national neutrality, nor of themselves implicate the Government.

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.3

Chancellor Kent, in his Commentaries, says:

It was contended by the French nation in 1796 that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent powers. But it was successfully shown, on the part of the United States, that neutrals may lawfully sell at home to a belligerent purchaser, or carry themselves to the belligerent powers, contraband articles, subject to the right of seizure in transitu. This right has since been explicitly declared by the judicial authorities of this country. The right of the neutral to transport, and of the hostile power to seize, are conflicting rights, and neither party can charge the other with a criminal act.4

In 1862, on the occasion of the French invasion of Mexico, complaint was made by M. Romero, the representative of the Mexican government at Washington, of the French being allowed to purchase horses and mules in the United States for the purpose of the war. A long correspondence ensued between M. Romero and Mr. Seward, in which the latter vigorously maintains what he calls “the settled and traditional policy of the country.” He says:

It is not easy to see how that policy could be changed so as to conform to the views of M. Romero without destroying all neutral commerce whatsoever. If Mexico shall prescribe to us what merchandise we shall not sell to French subjects, because it may be employed in military operations against Mexico, France must equally be allowed to dictate to us what merchandise we shall allow to be shipped to Mexico, because it might be belligerently used against France. Every other nation which is at war would have a similar right, and every other commercial nation would be bound to [Page 247] respect it as much as the United States. Commerce, in that case, instead of being free or independent, would exist only at the caprice of war.1

As regards the purchase of articles of war, the United States have not scrupled to purchase arms and munitions of war in other countries when need required it. At the commencement of the civil war, the Government being short of arms, agents were sent to England to procure them in large quantities. Other agents bought arms in different countries on the continent. Figures are given in the British counter-case which appear to bear out the statement that “the extra supplies of warlike stores thus exported to the northern ports of the United States during the civil war are estimated to represent a total value of not less than £2,000,000, of which £1,500,000 was the value of muskets and rifles alone.” Mr. Adams, in a conversation with Earl Russell on the 22d May, 1862, when the latter, in answer to his remonstrances as to supplies sent out from Great Britain to the Confederate States, referred to the large supplies of similar materials obtained on the part of the United States, naively answered that “at one time a quantity of arms and military stores had been bought, as a purely commercial transaction, for the use of the Federal Army, but that the practice had been discontinued at his suggestion, because it prevented him from pressing his remonstrances against a very different class of operations carried on by friends and sympathizers with the rebels, and that the United States had, instead, bought largely from Austria;” “because,” adds Mr. Adams, “that government had never given any countenance to the insurgents.”2 Purchase of contraband of war by the Government of the United States.

It thus appears that the continental governments also did not consider the sale of arms by their subjects as any infringement of the law of nations.

It seems to me, therefore, that the law relating to contraband of war must be considered not as arising out of obligations of neutrality, but as altogether conventional; and that by the existing practice of nations, the sale of such things to a belligerent by the neutral subject is not in any way a violation of neutrality. Then, how stands the matter as to ships of war? In principle, is there any difference between a ship of war and any other article of warlike use? I am unable to see any. Nor can I discover any difference in principle between a ship equipped to receive her armament, and a ship actually armed. A ship of war implies an armed ship; for a ship is not actually a ship of war till armed. Of the authors I have cited, and who hold ships of war to be contraband of war, no one of those who wrote before these disputes between the United States and Great Britain had arisen, with the exception of M. Hautefeuille, makes any distinction between ships equipped to receive their armaments, and ships actually armed. M. Hautefeuille, who, as we have seen, refuses to a ship equipped for armament, but not armed, the character of contraband, treats the equipping and arming as a violation of neutrality; but he gives no reason and cites no authority, and seems to me herein—I say it with the utmost respect—inconsistent with himself. Result of discussion.
Sale of ships.

Professor Bluntschli, in the work already cited, lays down, on the subject of ships furnished to a belligerent by the subjects of a neutral power, the following rules: Professor Bluntschli.

[Page 248]

In article 763 of his proposed code, he says:

L’état neutre ne doit pas seulement s’abstenir de livrer des navires de guerre à l’une des puissances belligérantes; il est aussi tenu d’exercer une surveillance rigoureuse et d’empêcher que des particuliers n’arment des navires de guerre sur son territoire et ne les livrent à l’un des belligérants.

In a note he adds:

En temps de paix, un état peut évidemment vendre des navires de guerre à un autre, ou recourir à l’industrie privée des états étrangers. Mais pendant la guerre, la fourniture de navires de guerre constitue évidemment un appui et un renfort accordé aux belligérants. Si l’intention de le faire résulte des circonstances, on devra considérer ces actes comme contraires aux devoirs des neutres, et l’état lésé pourra agir en conséquence.1

In article 764 he says:

Il suffit que l’intention de venir en aide à l’un des belligérants soit manifesto, pour que l’état neutre soit tenu d’intervenir, alors même que l’armement du navire de guerre ou du corsaire ne serait que préparé ou commencé.

In a note he subjoins:

Il n’est pas nécessaire que le navire soit déjà armé. Lorsque les coustructeurs, tout en prétendant frêter un navire de commerce, ont l’intention de l’armer en guerre, et lorsque cette intention peut être constatée, ou du moins est vraisemblable, cet acte constitue une violation des lois sur la neutralité. Mais lorsque cette intention ne peut pas être démontrée, on ne saurait incriminer le fait de transformer en navire de guerre un navire de commerce construit sur un chantier neutre et acheté plus tard par un négociant d’un des pays belligérants. (Wheaton, Intern. Law, p. 562.) Il en est autrement lorsqu’un navire de guerre est vendu à l’un des belligérants à titre d’entreprise purement commerciale ou industrielle; il y aura dans ce cas contrebande de guerre, mais cet acte ne constituera pas une violation des devoirs des neutres.2

I must observe that these rules, which are of a very stringent character, are not supported by any reasoning of the author, or by any juridical authority. I might add, that there is no ground for saying that they have been generally accepted as international law. Even so distinguished a man as Professor Bluntschli cannot give laws to the world from the professorial chair. Moreover, as I understand him, Professor Bluntschli draws a distinction between the sale of ships with the intention of assisting a belligerent, and of ships sold in the course of a purely commercial transaction.

The first two cited articles would, from the general terms in which they are framed, appear to apply to ships of war by whomsoever they may be supplied to the belligerent; but from the note to section 764 and the reference to section 765, hereinbefore cited, as to the sale of arms and munitions of war in the country of the neutral, I gather that the professor means to draw a distinction between ships made over to a belligerent, whether by sale or otherwise, for the purpose of assisting his cause, and ships of war sold to a belligerent by neutral subjects in the way of trade.

This is the view taken by Mr. Dana in a note to his edition of “Wheaton’s Elements of International Law,” which has been reprinted in the documents appended to the American case: Opinion of Dana.

Our rules do not interfere with bonafide commercial dealings in contraband of war. An American merchant may build and fully arm a vessel, and provide her with stores, and offer her for sale in our own market. If he does any acts as an agent or servant of a belligerent, or in pursuance of an arrangement or understanding with a belligerent, that she shall be employed in hostilities when sold, he is guilty. He may, without violating our law, send out such a vessel, so equipped, under the flag and papers of his own country, with no more force of crew than is suitable for navigation, with no right to resist search or seizure, and to take the chances of capture as contraband merchandise, of blockade, and of a market in a belligerent port. In such case, the extent and character of the equipments is as immaterial as in the other class of cases. The intent [Page 249] is all. The act is open to great suspicions and abuse, and the line may often be scarcely traceable; yet the principle is clear enough. Is the intent one to prepare an article of contraband merchandise, to be sent to the market of a belligerent, subject to the chances of capture and of the market? Or, on the other hand, is it to fit out a vessel which shall leave our port to cruise, immediately or ultimately, against the commerce of a friendly nation? The latter we are bound to prevent; the former the belligerent must prevent.1

Professor Gola, of Parma, in a recent work, observes:

Lo stesso dicasi ove si trattasse di costruzioni di navi: l’atto lede la neutralità, ove l’impresa si eseguisca dal governo, è invece un’ opera d’industria ove si compia da privati imprenditori nei loro cantieri.2

M. Ortolan, who had made no such distinction in the former edition of his work, “Sur la diplomatie de la mer,” in the last edition of that work has, with reference to this subject, the following, I cannot help thinking, somewhat extraordinary doctrine: Opinion of M. Ortolan.

Si l’on suppose un navire construit sur le territoire neutre, non pas sur commande d’un belligérant ou par suite d’un traité ostensible ou dissimulé avec ce belligérant, mais en vue d’un dessein quelconque, soit de navigation commerciale, soit tout autre, et que ce navire, déjà par lui-même propre à la guerre ou de nature à être converti à cet usage, une fois sorti des ports de la nation neutre, soit vendu, dans le cours de sa navigation, occasionnellement, à l’un des belligérants, et se mette à naviguer en destination directe pour ce belligérant: un tel navire dans de telles circonstances tombe uniquement sous le coup des règles relatives à la contrebande de guerre. Il est sujet à être arrêté et confisqué par l’ennemi qui pourra s’en emparer, mais sans qu’aucun grief de violation des devoirs de la neutralité puisse sortir de ce fait contre l’état neutre pour n’avoir pas défendu à ses nationaux de telles ventes ou ne les avoir pas réprimées. C’est une opération de trafic qui a eu lieu, trafic de contrebande de guerre, dont aucune eirconstanee particulière n’est venue changer le caractère.

Tel fut, en l’année 1800, le cas du navire américain le Brutus, capturé par les Anglais et jugé de bonne prise par la cour d’amirauté d’Halifax.

* * * * * *

Mais la situation change; la contrebande de guerre n’est plus la question principale; d’autres règles du droit des gens interviennent et modifient profondément la solution, si l’on suppose qu’il s’agisse de bâtiments de guerre construits, armés ou équipés sur un territoire neutre pour le compte d’un belligérant, par suite d’arrangement pris à l’avance avec lui, sous la forme d’un contrat commercial quelconque: vente, commission, louage d’industrie ou de travail; que les arrangements aient été pris ostensiblement, ou qu’ils le soient d’une manière secrète ou déguisée; car la loyauté est une condition essentielle dans la solution des difficultés internationales, et sous le couvert des fausses apparences il faut toujours aller au fond des choses. Il y a ici, incontestablement, une seconde hypothèse qu’il importe de distinguer soigneusement de la précédente.

Nous nous rattacherons, pour résoudre en droit des gens les difficultés que présente cette nouvelle situation, à un principe universellement établi, qui se formule en ce peu de mots: “Inviolabilité du territoire neuter:” Cette inviolabilité est un droit pour l’état neutre, dont le territoire ne doit pas être atteint par les faits de guerre, mais elle impose aussi à ce même état neutre une étroite obligation, celle de ne pas permettre, celle d’empêcher activement, au besoin, l’emploi de ce territoire par l’une des parties ou au profit de l’une des parties belligérantes, dans un but hostile à l’autre partie.

Les publicistes en crédit ne font aucun doute pour ce qui concerne l’armement et l’équipement dans un port neutre de bâtiments de guerre destinés à accroître les forces des belligérants. Ils s’accordent pour reconnaître l’illégalité de ces armements ou équipements, comme une infraction de la part de l’état neutre qui les tolèrerait aux devoirs de la neutralité.

N’est-il pas évident qu’il en doit être de même, a fortiori, de la construction de pareils bâtiments, lorsque cette construction a lieu dans les conditions prévues en notre seconde hypothèse?

So that, according to M. Ortolan, if a ship happens to be ready made and armed, she may be lawfully sold to a foreign belligerent, though with a full knowledge on the part of the seller of the purpose to which she is to be applied; but, if she is made to order, the transaction assumes the opposite character, and is a breach of neutrality. With all [Page 250] respect for the authority of this distinguished writer, I must decline to adopt a doctrine which rests on so shadowy a distinction.

Professor Bluntschli, undertaking to pronounce a judgment on the subject-matter of this dispute, as it were ex cathedra, in an article in the “Revue de Droit International” of 1870, lays down the following doctrine: Opinion of Professor Bluntschli.

L’état neutre qui veut garantir sa neutralité doit s’abstenir d’aider aucune des parties belligérantes dans ses opérations de guerre. Il ne peut prêter son territoire pour permettre à l’une des parties d’organiser en lieu sûr des entreprises militaires. Il est obligé de veiller fidèlement à ce que des particuliers n’arment point sur son territoire des vaisseaux de guerre, destinés à être livrés à une des parties belligérantes. (Bluntschli, Modernes Völkerrecht, section 763.)

Ce devoir est proclamé par la science, et il dérive tant de l’idée de neutralité que des égards auxquels tout état est nécessairement tenu envers les autres états avec lesquels il vit en paix et amitié.

La neutralité est la non-participation à la guerre. Lorsque l’état neutre soutient un des belligérants, il prend part à la guerre en faveur de celui qu’il soutient, et dès lors il cesse d’être neutre. L’adversaire est autorisé à voir dans cette participation un acte d’hostilité. Et cela n’est pas seulement vrai quand l’état neutre livre lui-même des troupes ou des vaisseaux de guerre, mais aussi lorsqu’il prête à un des belligérants un appui médiat en permittant, tandis qu’il pourrait l’empêcher, que, de son territoire neutre on envoie des troupes ou des navires de guerre.

Partout où le droit de neutralité étend le cercle de son application, il restreint les lirnites de la guerre et de ses désastreuses conséquences, et il garantit les bienfaits de la paix. Les devoirs de l’état neutre envers les belligérants sont en substance les mêmes que ceux de l’état ami, en temps de paix, vis-à-vis des autres états. Aucun état ne peut non plus, en temps de paix, permettre que l’on organise sur son territoire des agressions contre un état ami. Tous sont obligés de veiller à ce que leur sol ne devienne pas le point de départ d’entreprises militaires, dirigées contre des états avec lesquels ils sont en paix.

I entirely agree in all that is thus said by this able jurist—that is, if I properly apprehend his language, and am right in understanding it to apply not to the sale of ships of war, simpliciter, but to the sending out of troops and armed ships for the purpose of what the learned professor terms “military enterprises,” and to the “organizing of aggressions against a friendly state.”

Another eminent jurist, who has espoused the cause of the United States, in a very able review of the work of Professor Mountague Bernard, and whose opinion is referred to by the United States as an authority in their favor, M. Rolin Jacquemyns, does not, so far as I collect, deny the legality of the sale of ships of war, but rests his opinion on the general circumstances connected with the construction and escape of the Alabama. But the spirit in which this author writes will be seen from the following passage: Opinion of M Rolin Jacquemyns.

Il eût dans tous les cas été digne d’un jurisconsulte de la valeur de M. Bernard de ne pas se borner à examiner cette grave question des devoirs de la neutralité au point de vue du droit positif existant. C’est par l’opinion hautement émise de savants comme lui que les idées générales en matière de droit sont appelées à se rectifier et à se compléter. Or, s’il y a une chose que chaque guerre nouvelledémontre, c’estle caractère, non-seulement insuffisant, mais fallacieux de la vieille définition: neutrarum partium. Si au début de cette dernière et épouvantable guerre de 1870, l’Angleterre, au lieu d’être obstinément neutrarum partium, avait clairement désapprouvé l’offensive inique de la France, est-ce que les intérêts de la justice et de la paix n’auraient pas été mieux servis? L’idéal du personnage neutrarum partium, c’est le jugeq ui, dans l’apologue de l’huître et des plaideurs, avale le contenu du mollusque et adjuge les écailles aux deux belligérants. Il n’est d’aucun parti, mais il s’engraisse scrupuleusement aux dépens de tous deux. Une telle conduite de la part d’un grand peuple peut être aussi conforme aux précédents que celle du vénérable magistrat dont parle la fable. Mais quand elle se fonde sur une loi positive, sur une règle admise, c’est une preuve que cette loi ou cette règle est mauvaise, comme contraire à la science, à la dignité et à la solidarité humaine.1

[Page 251]

This reasoning may be very well deserving of attention for the future; but, for the present purpose, when the authority of M. Rolin Jacquemyns as to the culpability of Great Britain is cited, I must protest against the question being determined not according to “existing positive law,” but to the opinion of “savants” as to what the law should have been, or should now be made. The tribunal cannot, I apprehend, adopt such a principle informing its judgment. Its functions are not to make the law, but to decide according to the rules of the treaty, with the light which the acknowledged principles of international jurisprudence and the established usages of nations may afford for its assistance. The occasion may be a tempting one for giving effect to speculative opinions or individual theories. But a decision founded on such a prinple would not insure the approbation of wise and judicious minds, or command the respect of those who might suffer from a judgment which would be at variance with the first principles of equity and justice.

Let us see what has been the practical view taken of the subject in England or America. As far back as the year 1721, ships of war having been built in England, and sold to the Czar of Russia, then at war with Sweden, and complaint having been made by the Swedish minister, the judges were summoned to the House of Lords, and their opinion was asked, whether by law the King of England had the power to prohibit the building of ships of war, or of great force for foreigners, in any of His Majesty’s dominions. And the judges, with the exception of one, who had formed no opinion, answered that the King had no such power. It is plain that, if the sale of such vessels had been an offense against international law, the King would have had power to prevent it by the prosecution of the parties building and selling such ships, as offenders against the municipal law, as the offense would have been a misdemeanor at the common law. Opinion of the judges of England.

It appears that Chief Justice Trevor, and Parker, afterwards Lord Chancellor, had given the like opinion seven years before.1

The judgment of Judge Story in the well-known case of the Santissima Trinidad,2 shows that the sale of armed ships of war has never been held to be contrary to law in America. In that case a vessel called the Independencia, equipped for war and armed with twelve guns, had been sent out from the American port of Baltimore, upon a pretended voyage to the northwest coast, but in reality to Buenos Ayres, then at war with Spain, with instructions to the supercargo to sell her to the Buenos Ayres government if he could obtain a certain price. She was sold to that government accordingly, and, having been commissioned, was sent to sea and made prizes. She afterward put into an American port, and having there received an augmentation of her force, again put to sea and captured a prize. The validity of this prize was questioned in the suit on two grounds: 1st. That the sale of the vessel to a foreign government by American citizens, for the purpose of being used in war against a belligerent with whom the United States were at peace, was a violation of neutrality and illegal; 2d. Because the capture had been made after an augmentation of the force of the vessel in a port of the United States. The capture was held invalid on the latter ground. Upon the first, the judge delivered judgment as follows: Case of the Santissima Trinidad.

The question as to the original illegal armament and outfit of the Independencia may be dismissed in a few words. It is apparent, that though equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure, contraband, indeed, but in no shape violating our laws or our [Page 252] national neutrality. If captured by a Spanish ship of war during the voyage, she would have been justly condemned as good prize for being engaged in a traffic prohibited by the law of nations. But there is nothing in our laws, or in the law of nations, that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the person engaged in it to the penalty of confiscation. Supposing, therefore, the voyage to have been for commercial purposes, and the sale at Buenos Ayres to have been a bona-fide sale, (and there is nothing in the evidence before us to contradict it,) there is no pretense to say that the original outfit on the voyage was illegal, or that a capture made after the sale was, for that cause alone, invalid. Judgment of Mr. Justice Story.

It is now sought to shake the authority of this judgment by saying that it was unnecessary to the decision of the cause, as the prize was held to be invalid on the other ground; but it was, nevertheless, a solemn judgment upon a point properly arising in the cause, and, so far as I am aware, it has never been questioned.

It is indeed alleged (but for the first time) in the American case that the authority of this decision is to be looked upon as overruled or controlled by a judgment given by the same court in the case of the Gran Para. Now, the latter judgment was a judgment of the same court, (of which, therefore, Mr. Justice Story was himself a member,) and was pronounced on the very next day. We are told in the case of the United States, that the cases were argued, the one on the 20th, the other on the 28th of February, 1822; that the judgment in the case of the Santissima Trinidad was pronounced on the 12th of March, that in the case of the Gran Para on the ensuing day, the 13th. It is said, and truly, that “there can be no doubt they were considered together in the consultation-room,” and lawyers are gravely asked to believe that it was intended by the second judgment to overrule or qualify the doctrine involved in the first. No English or American lawyer could entertain the notion for a moment that, if the same court had intended to overrule, or even to qualify, the judgment given immediately before, it would not have referred to it in terms and given its reasons for so sudden a change in its views of the law. But the truth is—and I am at a loss to understand how the American Counsel can have failed to overlook this, or to call attention to it when citing the decision, that so far from overruling or affecting the judgment in the Santissima Trinidad, the case of the Gran Para had nothing in common with it beyond that of being a suit for the restitution of prize. It was not the case of the sale of a ship to a foreign government at all. It was simply the case of an American privateer armed in defiance of American law, and cruising under a fictitious commission, the property in her still remaining unchanged in the American citizen by whom she had been fitted out. The great importance of this distinction will be seen in another part of this case. Case of the Gran Para.

In a learned and able article in the well-known publication, the “American Law Review” of January, 1871, the writer, after referring to the case of the Santissima. Trinidad as “a famous and leading case,” states the law as follows: American Review.

It may be declared as indubitable that the pure unalloyed bargain and sale of a ship, even a ship of war, to a belligerent is legal by the rules of international law; that such a ship is, however, contraband of war, and it captured after sale on her way toward delivery, or before sale on her way toward a market where she is intended to be sold to a belligerent, she will be properly condemned. Neutrality acts have not been intended to change this state of the law, but only to furnish sufficient means for preventing its abuse. Our original proposition that the doctrine of contraband of war does not operate as a restriction upon trade, upon dealings which are purely commercial, remains correct, even in this matter of war vessels.

In this view of the law I am glad to have the concurrence of our distinguished [Page 253] colleague, Mr. Adams, who, writing to Earl Russell on the 6th of April, 1863, states, with reference to certain American authorities which Lord Russell had appealed to: Opinion of Mr. Adams.

The sale and transfer by a neutral of arms, of munitions of war, and even of vessels of war, to a belligerent country, not subject to blockade at the time, as a purely commercial transaction, is decided by these authorities not to be unlawful. They go not a step further; and precisely to that extent I have myself taken no exception to the doctrine.1

This being the present state of international law on this subject, if it is desirable to introduce new rules, it must be done by the common consent of nations, not by the speculative doctrines of theorists, however distinguished. Question as to prohibition of sale of articles contraband of war.

But is it desirable that it should be altered, and that obstacles to the industry and trade of neutral nations should be created?

Azuni observes:

Une grande partie du commerce de quelques nations européennes, telles que les Suédois, les Norvégiens, et les Russes, consiste en marchandises nécessaires pour la guerre maritime, pour la construction et pour l’équipement d’une flotte; elles vendent en temps de paix, à quiconque en a besoin, du fer, du cuivre, des mâts, des bois, du goudron, de la poix, et des canons, enfin des navires de guerre entiers. Quelles raisons pourrait-il y avoir de priver ces nations de leur commerce et de leur manière de subsister, à l’occasion d’une guerre à laquelle ils ne prenuent aucune part? Il n’y a dans le code de la justice et de l’équité rien en faveur d’une telle protection. Il est donc nécessaire d’établir, comme maxime fondamentale de tout droit, que, les peuples neutres devant et pouvant licitement continuer le commerce qu’ils font en temps de paix, on ne doit faire aucune distinction de denrées, de marchandises, et de manufactures, quoique propres à la guerre, et que, par cette raison, la vente et le transport aux parties belligérantes en sont permis, si le commerce actif et passif était établi en temps de paix, sans qu’on puisse prétendre, en aucune manière, que la neutralité soit violée, pourvu que cela se fasse sans animosité, sans préférence et sans partialité.

I cannot but feel the force and justice of these observations. I ask in like manner, “Why—unless, indeed, on account of reasons of state affecting the interests of the neutral state itself, in which case private interests must give way to those of the public—are the armorers of Birmingham or Liege, or the shipbuilders of London or Liverpool, to have their business put a stop to because one of their customers happens to be engaged in war with another state? It is not enough to say that but for the war the demand for the articles in question would not have arisen. From whatever cause it may proceed, increased demand is the legitimate advantage of the producer or the merchant, and it is by the advantage which periods of increased and more active demand bring with them that the loss arising from occasional periods of stagnation is balanced and made good.

The authors who desire to put further restraints on the free commerce of neutrals than international law has hitherto done, appear to me to think too much of the interests of belligerents, who are the disturbers of the world’s peace, and to be too unmindful of the interests of neutral nations, who are simply seeking occupation for their industry and commerce, indifferent by whom they are employed. They seem to think that the belligerent is granting an indulgence or conferring a favor on the neutral in allowing him to remain a stranger to the war, which the grateful neutral should be too glad to purchase by the sacrifice of all rights at all incompatible with the convenience of the belligerent.

M. Hautefeuille, indeed, invokes humanity, and would prohibit the sale of articles of warlike use in order to prevent and put an end to war. But if considerations of humanity are to be taken into account, it is obvious that the sale of such things should be prohibited in time of [Page 254] peace, as well as of war. They are not the less available in time of war because bought in time of peace.

The armorer or the shipbuilder who is thus required to close his establishment to the belligerents when war arises, may continue to manufacture and sell, undisturbed, his instruments of destruction down to the very hour when war is proclaimed. Had Prussia, for instance, anticipated the attack of France as likely to occur so soon, and had desired to procure a fleet, she might have resorted to the shipwrights’ yards of England till she possessed ships enough to cope with her formidable adversary on the seas. But let war but be proclaimed, and according to these views the work becomes at once criminal, the workman’s hammer must be arrested, the shipwright’s yard closed There may be reasons of state in certain instances—as according to British and American views in the case of ships—for putting a restraint on the freedom of trade, but it seems idle to base it on the score of humanity. The effect would simply be that a government meditating the invasion of another country would have to provide itself in time. The neighbor upon whom it thus brings war on the sudden, and who may be comparatively unprepared, is not to be at liberty to seek the materials of war elsewhere, but is to be left at the mercy of the invader. Peaceful nations would thus be at the mercy of others more ambitious and warlike and better prepared than themselves. The weak would be sacrificed to the strong. Let me suppose a people rising in a just and righteous cause. I will not offend the patriotic susceptibility of my honorable and esteemed colleague by suggesting, for a single instant, even hypothetically, the possibility that the cause of the insurgents might have been such a one—I will take what he will readily admit to have been so, the separation of the United States from the mother country. Let me suppose that, while Great Britain had her fleets prepared, her troops armed, her arsenals well stored, America had neither ships nor arms, nor munitions of war, with which to resist the superior forces of her adversary. Would it have been in the interest of humanity that she should be shut out from the markets of the world? An appeal to considerations of humanity has no doubt something very captivating about it; but I question very much whether humanity would not lose more than it would gain by the proposed restraint on the commercial freedom of nations.

The case, however, becomes essentially different when a ship thus equipped and armed is not sent out to be taken to the port of the belligerent purchaser, but is sent to sea with officers and a fighting crew for the purpose of immediate warfare. Under such circumstances the transaction ceases to be one of mere commerce, and assumes the form of a hostile expedition sent forth from the territory of the neutral. Such an expedition is plainly a violation of neutrality, according to international law, and one which the neutral government is bound to do its best to prevent. Ship of war sent out for immediate service.

But what if, in order the better to avoid observation and detection, the vessel is sent forth, without its armament, without its war crew, and these, sent to it by another or different vessels, are put on board of it in some place or water beyond the jurisdiction of the neutral? In my opinion, except so far as the question of diligence is concerned, as to which it may form a very material element, this makes no difference. The ship, the armament, the crew, though sent out separately, form each of them part of one and the same enterprise or undertaking. Taken together, they constitute a hostile expedition and must be treated as such. It is as though a hostile force were [Page 255] sent by sea to invade an enemy’s territory, and each arm of the force so sent, infantry, cavalry, artillery, were embarked in different ships. The whole would still form one expedition. So here, ships, guns, crew, are each a part of one entire whole to be employed and used in furtherance of one common design. This is happily expressed in the American Law Review, in the article already cited: “It was not,” writes the author, “because the Messrs. Laird sold a war ship to the confederates that we have a claim against England for a breach of international law; but it was because collateral arrangements for completing the equipment and armament of the ship so sold, by placing on board officers and crew, guns and provisions, rendered the entire procedure, in fact, the inception of a hostile undertaking from the confines of a neutral country.” Armament and crew sent out in different ships.

Of course the question may become one of degree. The interval of time which might elapse between the sending out of the ship and that of the crew, the distance between the neutral territory and the place at which the war-crew are to join, the possible fact that it was originally intended to procure a crew in some other country than that of the neutral, the occurrence of intermediate circumstances, might fairly lead to the inference that there was no present intention to apply the vessel to the purpose of war, which in my mind is an essential element in ascribing a belligerent character to that which might otherwise have remained a purely commercial transaction.

An expedition of this kind being an undoubted violation of neutrality, every one will agree that it is the duty of the neutral government, if it knows that such expedition is about to leave its waters, to use due diligence to prevent it. Nor does the duty of the neutral government end here. It is also its duty to use due diligence to make itself informed as to the true character and destination of a vessel, where there is reasonable ground to suspect that such character and destination are unlawful. Duty of neutral government.

The duty of the neutral government in this respect appears to me to involve three things: first, that the law of the neutral shall be sufficient to enable the executive to prevent breaches of its duties as a neutral; secondly, that, where its application is called for, the law shall be put in force honestly and in good faith; thirdly, that all proper and legitimate means shall be used to detect an intended violation of the law, so as by the application of the law to prevent it.

Having thus seen what is the present state of international law, according to the views of leading jurists and the practice of nations, more especially that of England and America, the parties to the present dispute, we are enabled to form an opinion as to how far the assertion in the case of the United States that the English foreign-enlistment act, which, going far beyond the restraints which international law imposes on the neutral subject, prohibits even the fitting-out and equipping of vessels for the purpose of war, is only a recognition of duties imposed by international law. The proposition is altogether untenable. American argument as to effect of foreign-enlistment act.

It is, in the first place, altogether at variance with what we know historically to have been the origin both of the American acts of 1794 and 1818, and of the British act of 1819, to say that either of these acts arose out of, or was passed to prevent, the building or equipping or arming of ships of war to be sold to a belligerent.

The American act of 1794 was passed in consequence of the proceedings of the French envoy and consuls in the United States, on the breaking out of the war between Great Britain and France, in procuring privateers to be fitted out and manned by American [Page 256] citizens, and furnishing them with letters of marque as privateers. It was not a question of fitting out ships to be sold to the French government, but of fitting out American vessels, the property of American owners, and manned by American crews, to prey, under commissions as privateers, upon the commerce of a friendly nation. British and American acts.

In like manner, the American act of 1818 arose out of the precisely similar conduct of American citizens in fitting out American vessels, manned by American crews, against the commerce of Spain and Portugal, under commissions as privateers from the de facto governments of the revolted colonies of the two countries.

The Spanish minister had loudly complained that some thirty vessels, specifically named, the property of American citizens, and belonging to ports of the Union, were thus preying on Spanish commerce.

The representative of Portugal made similar complaints.

This practice carried on, on so large a scale, created great scandal; and after the complaints had gone on for two years, the act of 1818 was passed to put a check on it, if possible. This act, in addition to the enactments of that of 1794, required that a bond in double the value of the ship should be given in the case of any armed vessel, owned in whole or in part by American citizens, going out of an American port, that the vessel should not be employed against a foreign government; and gave power to the collectors of customs to detain any vessel, built for war, leaving an American port, under certain suspicious circumstances specified in the act. It is plain that this statute, like its predecessor, was directed against privateering carried on by American citizens against countries with which the United States were at peace. Building or fitting out ships of war for a belligerent had not come into question at that time at all.

In like manner the British act of 1819 had in view, not the prevention of building or equipping ships for a belligerent, in the way of trade, but the prevention of military or naval expeditions on behalf of the revolted colonies, or malcontent subjects of Spain. Its origin is briefly stated in the report of Lord Tenterden to the neutrality laws commission:

The British foreign-enlistment act may be said to have arisen from the provision of a treaty; that with Spain of the 28th of August, 1814.

This treaty, or, as it is called, “additional articles to the treaty of July 5, 1814,” contains the following article:

Article III. His Britannic Majesty, being anxious that the troubles and disturbances which unfortunately prevail in the dominions of His Catholic Majesty in America should entirely cease, and the subjects of those provinces should return to their obedience to their lawful sovereign, engages to take the most effectual measures for preventing his subjects from furnishing arms, ammunition, or any other article to the revolted in America.”

In 1818 the reactionary policy of King Ferdinand, the prohibitory duties imposed by him on British commerce, and the ingratitude with which he treated British officers and others who had served his cause in Spain, had provoked a great deal of irritation in England; and there was a considerable party in the House of Commons, headed by Sir James Macintosh, who were prepared to support the claims of the Spanish American colonies to independence.

Expeditions were said to be in preparation for rendering active assistance both to the malcontents in Spain and to the rebels in America, in spite of a proclamation forbidding such expeditions, which had been published in 1817; and the Government consequently found that it was necessary, in order to keep good faith with Spain and to prevent infractions of British neutrality, to bring in an act of Parliament to provide for the case which now for the first time arose in modern history, of Great Britain being neutral at the time of a great maritime war.1

That it was against armaments going out from the shores of Great Britain that the measure was directed is plain from some of the arguments [Page 257] used by Mr. Canning in the course of the debate on the bill. Thus he says:

If a foreigner should chance to come into any of our ports, and see all this mighty armament equipping for foreign service, he would naturally ask, “With what nation are you at war?” The answer would be, “With none.”

“For what purpose, then,” he would say, “are these troops levied, and by whom?” The reply of course must be, “They are not levied by government; nor is it known for what service they are intended; but, be the service what it may, government cannot interfere.” Would not all that give such a foreigner a high idea of the excellence of the English constitution? Would it not suggest to him that for all the ordinary purposes of a state there was no government in England? Did the honorable and learned gentlemen not think that the allowing of armaments to be fitted out in this country against a foreign power was a just cause of war?1

Mr. Robert Grant, another member of the government, said that—

Every government, in its foreign relations, was the representative of the nation to which it belonged, and it was of the highest importance to the peace of nations that governments should be so considered. Nations announced their intentions to each other through the medium of their rulers. Hence every state knew where to look for expressions of the will of foreign nations; where to learn whether war or peace was intended; where to demand redress for injuries, and where to visit injuries unredressed. But all this system was inverted and thrown into confusion, if the government might act in one way and the nation in another. All this system was at an end if, while we were professedly at peace with Spain, she was to be attacked by a large army of military adventurers from our own shores—a sort of extra-national body—utterly irresponsible—utterly invulnerable, except in their own persons—for whose acts no redress could be demanded of the British government—who might burn, pillage, and destroy, then find a safe asylum in their own country, and leave us to say, “We have performed our engagements—we have honorably maintained our neutral character.”2

But the language of these acts being large enough to embrace a case of the equipping a vessel for a foreign belligerent, the foreign-enlistment act has been made available for the purpose of preventing a traffic which is calculated to cause embarrassment to a government pressed by the remonstrances of belligerents. And this act having been so often appealed to and discussed, a notion has sprung up that the equipment of vessels of war, though in the way of trade, is a violation of neutrality, while, in fact, it is only a violation of the municipal law.

Mr. Dana, in the passage before cited, puts the matter on the right ground.

Again, it is idle to contend that alterations in the law, since made by statute, to give a greater power to the executive in dealing with suspected vessels, are to be taken as the measure of the obligations incumbent on the British government by international law. Catching at a few words in the report of the royal commissioners, who, in recommending certain statutory additions to the law, add: “In making the foregoing recommendations we have not felt ourselves bound to consider whether we were exceeding what could actually be required by international law, but we are of opinion that if those recommendations should be adopted, the municipal law of this realm available for the enforcement of neutrality will derive increased efficiency, and will, so far as we can see, have been brought into full conformity with Your Majesty’s international obligations,” the United States desire that it shall be taken, notwithstanding that the commissioners expressly say that their recommendations are independent of any considerations of international law; that these statesmen and learned jurists meant that without these additions the law of England failed to come up to the exigencies of international law. Such an argument is really undeserving of serious notice. As to effect of act of 1870.

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Equally unfounded is the assertion that the provisions of the foreign-enlistment act are only a statutory declaration of the common law of England. The enactment of that statute could only be declaratory of the common law, if co-extensive with the obligations of international law; whereas, in fact, it went far beyond them. The opinion of the judges, pronounced as far back as the beginning of the last century, that even the sale of armed ships was not contrary to the law of England, shows the rashness and the incorrectness of this assertion.

But it is claimed on behalf of the United States that, whether the foreign-enlistment act was or was not more than co-extensive with international obligations, the United States were entitled, irrespectively of the rule of the treaty of Washington, to have it put in force in all its rigor for their protection. This involves the important question whether, where the municipal law of the neutral is more stringent than the international law, a belligerent can claim, as of right, the putting in force of the municipal law in his behalf, and make the omission to do so a ground of grievance, as founding a right of redress at the hands of a neutral government. A few short considerations will serve to dispose of this question, which, indeed, seems to answer itself. Right conferred on belligerent by municipal law.

When a Government makes its municipal law more stringent than the obligations of international law would require, it does so, not for the benefit of foreign states, but for its own protection, lest the acts of its subjects in overstepping the confines, oftentimes doubtful, of strict right, in transactions of which a few circumstances, more or less, may alter the character, should compromise its relations with other nations. It was in this spirit and with this object that the foreign-enlistment act was passed, as is shown by its preamble, which is in the following terms:

Whereas the enlistment or engagement of His Majesty’s subjects to serve in war in foreign service, without His Majesty’s license, and the fitting out and equipping and arming of vessels by His Majesty’s subjects, without His Majesty’s license, for warlike operations in or against the dominions or territories of any foreign prince, state, potentate, or persons exercising or assuming to exercise the powers of government in or over any foreign country, colony, province, or part of any province, or against the ships, goods, or merchandise of any foreign prince, state, potentate, or persons as aforesaid, or their subjects, may be prejudicial to and tend to endanger the peace and welfare of this kingdom; and whereas the laws in force are not sufficiently effectual for preventing the same:

Now, it is quite clear that the obligations of the neutral state spring out of, and are determined by, the principles and rules of international law, independently of the municipal law of the neutral. They would exist exactly the same, though the neutral state had no municipal law to enable it to enforce the duties of neutrality on its subjects. It would obviously afford no answer on the part of a neutral government to a complaint of a belligerent of an infraction of neutrality, that its municipal law was insufficient to enable it to insure the observance of neutrality by its subjects, the reason being that international law, not the municipal law of the particular country, gives the only measure of international rights and obligations. While, therefore, on the one hand, the municipal law, if not co-extensive with the international law, will afford no excuse to the neutral, so neither, on the other, if in excess of what international obligations exact, will it afford any right to the belligerent which international law would fail to give to him.

In one respect, and in one respect only, does the municipal law, when in excess of international law, give a right to the belligerent. Equality being of the essence of neutrality, he has a right to insist that the neutral [Page 259] subject shall equally be compelled to keep within the municipal law in dealing with the adversary as when dealing with himself. A belligerent is also beyond question perfectly at liberty to urge upon the neutral government, in the way of solicitation or even of remonstrance, to enforce the municipal law; but so long as it is not enforced against himself he has no right to redress, because it is not put in force against his enemy.

I am at a loss exactly to understand for what purpose these points have been brought forward, and so strenuously insisted on, in the American arguments. For, the rule prescribed to us by the treaty, and to the benefit of which the United States are, therefore, entitled at our hands, is in the very terms of the foreign-enlistment act. I presume the purpose was to create a foundation for the imputation against Great Britain of not having acted in good faith. In that respect I may have to advert to these arguments again. For my present purpose it is enough to have cleared the ground of them.

In like manner when it is sought, in the case of the United States, to make the Queen’s proclamation of neutrality the measure of the international obligations of her subjects, every lawyer ought to know that this is to give to a royal proclamation an authority which it does not possess. The purpose of such a proclamation, used only in great conjunctures, is to remind the subject of the provisions of the law, and to warn him against breaking it; and if, after such warning, a man offends against the law, his offense is aggravated by the fact that he has set the injunctions of the sovereign at defiance; but such a proclamation cannot make or add to the law, or alter it in the smallest particular. The proclamation of 1861 was in the accustomed form. It drew attention to the enactments of the foreign-enlistment act, and warned all persons subject to British law that, if they did any acts in contravention of that act, or in violation of the law of nations, as by enlisting in the military service, or serving in any ship of war or transport, of the contending parties; or going or engaging to go beyond the seas for the purpose of enlisting, or procuring, or attempting to procure, within Her Majesty’s dominions, others to do so; or fitting-out, arming, or equipping any vessel to be employed as a ship of war, or privateer, or transport, by either of the contending parties; or by breaking or endeavoring to break any blockade lawfully and actually established by or on behalf of either of the said contending parties; or by carrying officers, soldiers, dispatches, arms, military stores, or materials, or any article or articles considered and deemed to be contraband of war, according to the law or modern usage of nations, for the use or service of either of the contending parties—all persons so offending would incur and be liable to the several penalties and penal consequences by the said statute or by the law of nations in that behalf imposed or denounced. The Queen’s subjects are further warned that all persons entitled to her protection, if they should misconduct themselves in the premises, would do so at their peril and of their own wrong, and that they would in nowise obtain any protection from Her Majesty against any liabilities or penal consequences. Effect of proclamation.

The effect is that persons are warned that infractions of the foreign-enlistment act will be visited with the penalties of that statute, while acts within the penalties of international law will be liable to those penalties, (namely, seizure and confiscation of property,) and that against the latter penalties no protection from the Crown must be expected.

But the proclamation contains no prohibition of these latter acts, [Page 260] namely, dealing in contraband of war, or breaking blockade; nor, if it did, would such prohibition make such acts an offense: such a proclamation has never been understood by British statesmen or lawyers as making either of these things an offense against the municipal law, or as what the government was called upon to prevent, or would be justified in attempting to prevent.

Nor have similar proclamations of Presidents of the United States been dealt with as imposing additional obligations on American citizens, or as subjecting them to additional penalties, or as carrying the obligations of the state further than those imposed by international law. The American authorities which I have cited establish this beyond all possibility of controversy.

To return to the subject of the equipment of vessels. Though I have thought it desirable, with a view to other parts of this case, to work out the question of neutral commerce to its full extent, and though I have come to the conclusion that by the general law of nations the sale of a ship of war, though intended for the use of a belligerent, is not, when merely a commercial transaction, a breach of neutrality, yet, as Great Britain has consented that the mere equipping of such a ship, though done in the way of trade, shall be taken to have been a breach of neutrality which the British government was bound to use due diligence to prevent, I agree with the rest of the tribunal that we must for the present purpose, in respect of the fitting out and equipping of vessels, take the rules of the treaty as the test of the alleged omissions and consequent liability of the Queen’s government. Equipment of vessels under rules of treaty.

Though of opinion that Her Majesty’s government were quite right in saying that the rules laid down by the treaty are not such as international law would have prescribed at the time these claims arose, I agree that we are bound by the rules, and that it is our duty to give full effect to them in dealing with these claims. However great and unexampled the concession made by Great Britain in consenting to be bound, in respect of past international obligations, by rules which had no existence in international law when the breaches of neutral obligations complained of are alleged to have occurred, I still think that we must proceed in this inquiry as though the rules of the treaty had been, either by international law or by convention between the two countries, binding on Great Britain at the time of the civil war. I cannot but concur with Mr. Evarts that we must give the same effect to those rules as regards the past as we should give to them if dealing with a case which had arisen since they were agreed to by the two nations, nor do I indeed understand this proposition to be disputed by the counsel on the part of Great Britain. The question is whether due diligence was used by the British government to satisfy the exigency of the obligations prescribed by those rules. Construction of rules of treaty.

I proceed, then, to consider what is this “due diligence” which the British government admits that it was bound to apply to prevent the fitting out and equipping of the vessels in question. Due diligence, what?

I apprehend that such diligence would be neither greater nor less than any other neutral government would be bound to apply to the preventing of any breach by its subjects of any head of neutral duty prescribed by international law.

The difficulty of the position is, that the question has not hitherto come within the range of juridicial discussion on subjects connected with international law. Hitherto, where a government has acted in good faith, availing itself fairly of such means as were at its disposal, it has not [Page 261] been usual to consider it responsible to a belligerent government for acts of its subjects that might have eluded its vigilance, or that the degree of diligence exercised by it should be submitted to judicial appreciation. And no country has insisted more strongly on this as the limit of national responsibility than that of the United States. We must endeavor to find a solution for ourselves.

As I have already observed, I cannot agree that the question of what is “due diligence” should be left to the unassisted mind of each individual arbitrator; nor can I agree that the solution is to be found in the facts of each individual case; and though judges may be often disposed to apply the maxim, to which our honorable president has more than once referred, ex facto jus oritur, it is, I think, one which must not be pushed too far. I agree with M. Troplong, who, writing on this subject with reference to civil law, after referring to the different opinions of jurists on the subject of diligence, says:

Il est vrai que jusqu’à présent les tribunaux se sont montrés assez indifférents sur ces disputes de la chaire; mais peut-être pourrait-on leur faire le reproche de n’avoir amorti la vivacité de la question qu’en étouffant tout ce qui est discussion de système et point de droit, sous la commode interprétation des faits, et sous un équitable mais facile arbitraire. Néanmoins, dans cette matière, comme dans toutes les autres, il y a des règles qu’il faut so garder de dédaigner: elles aident le magistrat, elles font luire de précieuses lumières pour ceux qui ont mission de discuter sur les faits et de les juger. Ces règles m’ont paru simples et judicieuses; je vais les exposer comme je les entends; dans tous les cas, et dussé–je me tromper, je prie le lecteur de ne pas m’adresser, comme fin de non-recevoir, le reproche de me livrer à d’oiseuses digressions. De tous les systèmes, le moins excusable, à mon avis, c’est celui qui, sous prétexte de fuir l’esprit de système, se fait une loi de n’en avoir aucun.1

It seems to me, therefore, right, before proceeding to deal with the facts, to seek in the domain of general jurisprudence for principles to guide us in judging how far the obligations of Great Britain have or have not been satisfied.

No branch of law has been the subject of more discussion among juridical writers than that of diligentia and its correlative culpa, the latter being neither more nor less than the absence of the former. I was prepared to expect, from the able men who have prepared the pleadings of the United States, some assistance to guide us to right conclusions as to the standard of diligence required of a neutral government for insuring the obedience of its subjects in matters of neutrality. But after a vague statement that “the extent of the diligence required to escape responsibility is, by all authorities, gauged by the character and magnitude of the matter which it may effect, by the relative condition of the parties, by the ability of the party incurring the liability to exercise the diligence required by the exigencies of the case, and by the extent of the injury which may follow negligence,”2 the only authority cited in any detail is that of an obsolete author, whose exposition of the Roman law has been exploded by modern science. After this, the case breaks out into the following vague and declamatory statement, not of what the law is, but of what the United States Government desire it shall be understood to be: Diligentia and culpa.

The United States understand that the diligence which is called for by the rules of the treaty of Washington is a due diligence; that is, a diligence proportioned to the magnitude of the subject and to the dignity and strength of the power which is to exercise it; a diligence which shall, by the use of active vigilance, and of all the other means in the power of the neutral, through all stages of the transaction, prevent its soil from being violated; a diligence that shall in like manner deter designing men from committing acts of war on the soil of the neutral against its will, and thus possibly [Page 262] dragging it into a war which it would avoid; a diligence which prompts the neutral to the most energetic measures to discover any purpose of doing the acts forbidden by its good faith as a neutral, and imposes upon it the obligation, when it receives the knowledge of an intention to commit such acts, to use all the means in its power to prevent it.

No diligence short of this would be “due;” that is, commensurate with the emergency or with the magnitude of the results of negligence. Understanding the words in this sense, the United States find them identical with the measure of duty which Great Britain had previously admitted.1

This is, of course, to beg the whole question in dispute. But it is obvious that a matter of so much importance, as lying at the very root of this inquiry, requires a more logical and precise consideration than the foregoing rhetorical statement presents.

The jurists of the seventeenth century, among whom Vinnius occupies a prominent place,2 divided the diligentia and corresponding culpa of the Roman law into three degrees. Thus we have culpa lata, levis, levissima, taking the intermediate degree, or culpa levis, as being the absence of the diligence which a man of ordinary prudence and care would apply in the management of his own affairs in the given circumstances of the case. Though attacked by Donellus, this tripartite division of diligence and default held its ground among juridical writers for a considerable time; but on the formation of the French code, the practical good sense of those by whom that great work was carried out, so visible in their discussions, induced them to discard it, and to establish one common standard of diligence or care as applicable to all cases of civil obligation, namely, that of the “bon père de famille,” the “diligens paterfamilias” of the Roman digest. The code Napoleon has been followed in the codes of other countries. Among others, the Austrian code has lately adopted the same principle.3 Opinions of jurists.

The juridical view, too, of the earlier writers was not destined to stand its ground. After it had been assailed by Thibaud and Von Lohr, Hassé, in a most learned and able treatise, “Die Culpa des römischen Rechts,” thoroughly exposed its unsoundness, and his views have since been followed by a series of German jurists, including Professor Mommsen in his well-known work “Beiträge zum Obligationsrecht.”4

French authors have for the most part taken the same view. Commentators on the code, Duranton, Ducarroy, Troplong, and lastly M. Demolombe, in his great work, the “Cours du code civil,” have agreed that there can only be one standard for the diligence required in the affairs of life, where the interests of others are concerned, namely, that of men of ordinary capacity, prudence, and care.

“Qu’est ce que la diligence d’un bon père de famille?” asks M. Troplong:5

C’est la diligence de celui qui, comme le dit Heineccius, tient le milieu entre l’avare aux cent yeux et l’homme négligent et dissipé C’est dans le système dont M. Ducarroy est l’organe, et que j’adopte pleinement, la diligence qu’un individu, aussi diligent que les hommes le sont ordinairement, apporte à la conservation de ce qui lui appartient. On voit qu’en ce point les deux systèmes se rencontrent, et conduisent à une même définition—c’est-à dire, à ce juste milieu qui est dans la nature de l’humanité

“The only thing to be considered,” says Professor Mommsen, “is whether the default is such as does not occur to a diligent father of family in general.” “The care to be taken is ‘qualem diligens paterfamilias suis rebus adhibere solet.’”

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After distinguishing between culpa in criminal and in civil cases, the same learned writer says:

It is important, therefore, not so much to distinguish the degree of culpa, but rather to decide the starting-point at which responsibility for inattention and negligence commences.

This starting-point is settled according to one rule for all those cases in which there exists, not a simple responsibility for dolus, (and culpa lata,) but where culpa is to be imputed; culpa being admitted in those cases where the conduct falls short of the measures which a diligens paterfamilias is in the habit of observing in his affairs.

Only under some few obligatory conditions is a decision more favorable to the debtor admissible, in so far that in these cases he is allowed to excuse himself from the responsibility, by proof that in his own affairs he is by habit equally negligent.1

“The ordinary conduct of an intelligent, prudent, and careful Hausvater, of a ‘bonus et diligens paterfamilias,’” says Rivier in the Rechtslexicon of Holzendorff, “affords the normal measure of the obligation of diligence. He who so conducts himself is in general free from all reproach. If he acts otherwise, he is in culpa and responsible.”2

“The measure,” says Dr. Windscheid, “by which to determine whether particular conduct is open to the charge of negligence or not is the conduct of men in general.”3

ProfessorUnger, in his “System des österreichischen allgem. Privatrechts,”4 thus writes of culpa levis, according to Austrian law:

Culpa levis consists in the omission of that care which an attentive and judicious head of a family regularly observes, (diligentia diligentis patrisfamilias.) The want of this care, this kind of culpa, is generally understood, when speaking merely of oversight, of culpa simply. The observance of a higher degree of care than this is not required; this is the lightest offense for which a man can be made responsible; a culpa levissima, going beyond culpa levis, does not exist either according to general or to Austrian law. The culpa levis forms the boundary of responsibility. It is by itself omnis culpa; on the other side of this limit begins the province of accident, for which the actors are not held liable.

The civil code treats of this culpa levis in § 1297, where it states the highest degree of diligence and attention required to be that “which can be exercised by ordinary capacities.” The omission of this care forms the lightest offense for which any one can be held responsible. By the diligence and attention “which can be exercised by ordinary capacities” must, however, be understood what, in another place, the code calls the attention “of a trusty and diligent head of a family,” the care “of a good householder.”

Stubenrauch, in his commentary on the Austrian code, treats the whole subject of culpa with much ability and learning. He ends by saying:

It is to be assumed that every man who is in possession of his faculties, is capable of that degree of diligence and attention which can be exercised by men of ordinary capacity. Whoever by the absence of this diligence and care causes injury to another, incurs liability.5

Mr. Justice Story, with the good sense which characterizes his writings, says:

Common or ordinary diligence is that degree of diligence which men in general exert in respect to their own concerns. It may be said to be the common prudence which men of business and heads of families usually exhibit in affairs which are interesting to them; or, as Sir William Jones has expressed it, it is the care which every person of common prudence and capable of governing a family takes of his own concerns. It is obvious that this is adopting a very variable standard, for it still leaves much ground for doubt as to what is common prudence, and who is capable of governing a family. But the difficulty is intrinsic in the nature of the subject, which admits of an approximation only to certainty. Indeed, what is common or ordinary diligence is more a matter of fact than of law, and in every community it must be judged of by the actual [Page 264] state of society, the habits of business, the general usages of life, and the changes, as well as the institutions, peculiar to the age. So that, although it may not be possible to lay down any very exact rule, applicable to all times and all circumstances, yet that may be said to be common or ordinary diligence in the sense of the law which men of common prudence generally exercise about their own affairs in the age and country in which they live. It will thence follow, that in different times and in different countries, the standard is necessarily variable with respect to the facts, although it may be uniform with respect to the principle; so that it may happen that the same acts which, in one country, or in one age, may be deemed negligent acts, may, at another time, or in another country, be justly deemed an exercise of ordinary diligence.

* * * * * * * *

What is usually done by prudent men in a particular country in respect to things of a like nature, whether it be more or less, in point of diligence, than what is exacted in another country, becomes in fact the general measure of diligence.1

The same standard is, in practice, applied in the English law. The older authorities, indeed, speak of three degrees of negligence, and of “gross” negligence as being necessary in some cases to found liability; but the tendency of modern decisions has been to apply in all cases the sound, practical rule that in determining the question of negligence, the true test is whether there has been, with reference to the particular subject-matter, that reasonable degree of diligence and care which a man of ordinary prudence and capacity might be expected to exercise in the same circumstances. (See what is said by Tindal, L. C. J., in Vaughan vs. Menlow, (3 B. N. C., 475;) by Parke, B., in Wyld vs. Pickford, (8 M. and W., 461;) by Cresswell, J., in Austin vs. Manchester, Sheffield and Lincolnshire Railway, (10 C. B., 454;) and by Rolfe, B., in Wilson vs. Brett, (11 M. and W., 115.)

While, however, I thus seek in the writings of jurists, and the law of different nations, some standard for the measure of diligence, I readily concede that the application of that standard must depend on the circumstances of each individual case, and on the view which the judge may, in his conscience, form of how far the conduct of the individual complained of may or may not have been that which ordinary prudence and sense of duty would have prescribed. I entirely agree with what is said by the learned editors of Zachariæ’s “Droit civil français,” on article 1137 of the French code:

L’article 1137 se résume en un conseil aux juges de n’avoir ni trop de rigueur ni trop d’indulgence, et de ne demander au débiteur que les soins raisonnablement dûs à la chose qu’il est chargé de conserver ou de faire, soit à raison de sa nature, soit à raison des circonstances variables à l’infini qui modifient son obligation pour la rendre ou plus large ou plus étroite.2

What is here said by the learned editors of Zachariæ appears to me to afford the true criterion. It is for the judge to determine, according to the best of his judgment, with reference to the facts of the particular case, and with reference to the thing to be done or left undone, whether what has been done, or left undone, as the case may be, has been what could reasonably and justly have been expected from a person of ordinary capacity and prudence in the affairs of life. More than this is not to be expected.

I have cited these authorities because, in the absence of any reference to the question of diligence among writers on international law, it seems to me that the principle that prevails as to men’s conduct in the affairs of life may by analogy be well applied to the discharge of its duties by a government. Applying this standard, one nation has a right to expect from another, in the fulfillment of its [Page 265] international obligations, the amount of diligence which may reasonably be expected from a well-regulated, wise, and conscientious government, according to its institutions, and its ordinary mode of conducting its affairs; but it has no right to expect more. The assertion of the obligation of a neutral government, as stated in the American case, that “the diligence is to be proportioned,” not only to “the magnitude of the subject,” but also to “the dignity and strength of the power which is to execute it,” as though there could be one measure of diligence for a powerful state, and another for a weak one—a diligence “which shall prevent its soil from being violated”—which “shall deter designing men,” &c.—thus making the neutral government answerable for the event—and “which prompts to the most energetic measures”—appears to me much too extensive, and altogether inadmissible. Same principle applied to government.

The diligence required of a government to prevent infractions of neutrality may relate (1) to the state of its municipal law; (2) to the means possessed by it to prevent such infractions; (3) to the diligence to be used in the application of such means to the end desired. Heads of diligence.

As to the law, the subject may be divided into the prohibitive law, or, as it is termed in the American case, the punitive law, and Law the preventive law—that is, the law whereby the government is armed with the power and means of prevention.

As regards the prohibitive or punitive law, no difficulty can arise. It is plain that, to satisfy the exigency of due diligence, and to escape liability, a neutral government must take care, not only that its municipal law shall prohibit acts contravening neutrality, but that the law shall be upheld by the sanction of adequate punishment—that is to say, of such as may reasonably be expected to deter persons from offending against it.

As regards the preventive law, doubtless a government should be armed by law with power to prevent an infraction of the law, when it knows, or has reasonable ground to believe, that such infraction is about to take place. Means at disposal of Government.

But when we come to the question of the means which by law should be placed at the disposal of the government, difficulties of a very for midable character immediately present themselves.

The more despotic and unlimited the power of a government, the more efficacious will be the means at its command for preventing acts which it is desired to prevent.

Is this a reason, in a country where absolute and unlimited power is unknown, where every power is exercised in subordination to the law, and where, for any interference by the government with the rights of person or property, redress may immediately be sought, for investing the executive with an absolute and irresponsible power, at variance with the whole tenor and spirit of the national institutions, in order to protect a belligerent from the possibility of injury from a violation of neutrality?

Again, a nation has a system of procedure which is in harmony with its institutions, and with which it is satisfied. According to that system, persons against whom the law is to be put in force cannot be subjected to be interrogated in order to establish their criminality. Proof must first be produced, from which, while it remains unanswered, a presumption of guilt arises, before they can be called upon for a defense. Because a different system might be more efficacious in enabling the government to establish a case for confiscating a suspected vessel, for the [Page 266] protection of a belligerent, is the legislature called upon to change the law because other nations become involved in war?

Again, the government of a country has been carried on for years according to an established system of official routine. This system may be somewhat complicated, and may render the action of the executive less speedy than it might otherwise be. But it is safe, and has been found to work sufficiently well in carrying on the affairs of the nation at home and abroad. Because a more rapid and a more direct action on the point to be reached might be obtained by a simplification of the official machinery, is a government to be held guilty of negligence, because, not foreseeing what was about to happen, it had not altered its ministerial arrangements accordingly?

A government, in all matters involving legal consideration, is in the habit of consulting and acting under the advice of lawyers specially appointed to advise it. The purpose is the laudable one of insuring the perfect legality of the proceedings of the government; but this advantage necessarily involves some loss of time, during which the action of the executive is for the moment suspended. Is this practice inconsistent with the diligence required of a neutral government? Honestly intending to do what was right, is it to be held responsible because a vessel equipped for war has taken advantage of such a delay, though perhaps, in the particular instance, accidentally prolonged?

I can only answer these questions in the negative. I do so on the ground, as to some of them, that they are things which no government could reasonably be asked to do; as to all, that they were not such things as a government of ordinary prudence and sagacity, carrying on its affairs in the usual way in which the affairs of governments are carried on, could have foreseen the necessity of providing for.

Passing from the law, and the means which the law should place at the disposal of a government, to enable it to repress intended violations of neutrality on the part of its subjects, to the action of the government in the use of such means, it seems to me that two things are incumbent on a government: Action of government.

  • 1st. That it shall use due diligence to inform itself, by the use of the means at its disposal, whether a violation of the law is about to be committed; and,
  • 2d. That, being satisfied of the fact, it shall use due diligence in applying its means and power of prevention.

These conditions honestly and bona fide satisfied, no government, as it seems to me, can be held liable for the acts of its subjects, but such acts must be deemed to be beyond the reach of any control which it can reasonably be expected to exercise.

But here questions of great importance, and of equal difficulty, present themselves:

Is a government, intending faithfully to discharge its duty toward another government, to be held responsible for a mere error of judgment? As, for instance, in thinking a vessel not liable, in point of law, to seizure, when in fact she was so; or in thinking the evidence in a particular case insufficient when it was sufficient.
Is a government wanting in due diligence if it declines to seize a vessel at the instance of a belligerent, when properly satisfied that, though there may be circumstances of a suspicious character, the only evidence which can be adduced will not justify the seizure before the law, and that the vessel will therefore be released?
Having seized a vessel, and brought the matter before the proper legal authority, is a government to be held responsible because, through [Page 267] some mistake of the court, either of law or fact, there has been a miscarriage of justice?
Is it to be answerable for accidental delay, through which an opportunity becomes afforded to a vessel to evade the eventual decision of the government to seize her?
Is a government to be held responsible for error of judgment in its subordinate officers, especially when these officers are at great distance, and not acting under its immediate control? Is it, under such circumstances, to be answerable for their possible negligence, or even for their misconduct?

These are matters of infinite importance to neutral nations, who may be drawn within the vortex of wars in which they have no concern, if they are not only to be harassed and troubled by the demands and importunities of jealous and angry belligerents, but are, in addition, to be held responsible—to the extent, perhaps, of millions—for errors of judgment, accidental delay, judicial mistake, or misconduct of subordinate officers, acting not only without their sanction, but possibly in direct contravention of their orders.

We are not informed whether the two governments have, in compliance with the pledge contained in the treaty of Washington, invited other nations to adopt its rules; but if it is to be established that these rules carry with them a liability so extensive, I should very much doubt whether such an invitation, if made, would be attended with much success.

Any decision of this tribunal founded on such a liability would have the effect, I should imagine, of making maritime nations look upon belligerent powers with very considerable dread.

It is to be remembered that a government cannot be taken to guarantee the event; in other words, to be answerable at all hazards and under all circumstances for a breach of neutrality by a subject, if it occurs. In spite of the law, and of the vigorous administration of the law, offenses will take place, and neither at home nor abroad can rulers be held, under all circumstances answerable to those who suffer from them. All that can be expected of the government of a country is that it shall possess reasonable means to prevent offenses, and use such means honestly and diligently for the benefit of those who are entitled to its protection. The terms of the treaty, which require no more than “due diligence,” exclude all notion of an absolute unconditional responsibility. This is evidently the meaning of an observation of the British counsel at the close of the fifth section of his argument on “due diligence,” which the president of the tribunal appears to have found some difficulty in understanding.

This being so, I have some difficulty in saying that a government acting in good faith, and desiring honestly to fulfill its obligations, can be held liable for errors of judgment, unless, indeed, these are of so patent a character as to amount to crassa negligentia. Errors of judgment.

Prolonged and unnecessary delay is, in the very nature of things, incompatible with diligence. But delay, within reasonable limits, honestly intended for the investigation of facts or the due consideration of the proper course to be pursued, is not so. Delay arising simply from accident ought not to be imputed as negligence. Accident can never be made the ground of an imputation of negligence, though it may found a legal claim where a party is in mora. Delay.

As regards the seizure of a vessel under the foreign-enlistment act, with a knowledge that the evidence would be insufficient to [Page 268] justify it, I hold that such a seizure, whether for the purpose of furthering the ends of a belligerent, or because some suspicion might attach to the vessel, would have been unjustifiable both in policy and principle. For no government can be called upon to institute legal proceedings under such circumstances. Every government prosecution which ends in failure, is, in itself, productive of mischief. It lessens the authority of the executive by making it appear to have acted harshly and unjustly, and creates sympathy, perhaps unmerited, for parties against whom its efforts have been directed, and who have escaped from its pursuit. It impairs the authority of the law by leading to the belief that it may be infringed with impunity, thereby holding out encouragement to crime. A government would be acting in violation of the spirit of the constitution, as well as against law and right, if it seized a vessel, the property of a subject, unless it believed such vessel to be justly and legally liable to condemnation on legal and sufficient proof. Moreover, such a proceeding would be useless as well as arbitrary. The government would be unable to defer indefinitely the decision of the question, but, on the contrary, would be bound to submit the case to the proper tribunal at the earliest practicable moment. In the case supposed, the result would necessarily be that the vessel must be released and allowed to depart unmolested. Seizure of vessels.

It must be borne in mind that the British government possesses no despotic or arbitrary power. It could neither assume nor exercise such a power, even to protect a belligerent or maintain its own neutrality.

As regards any miscarriage of justice in matters within the sphere of the municipal law, it appears to me utterly out of the question to hold that a government, having done what in it lay, as by seizing a vessel and bringing it properly before the competent court, can be held liable because, through some mistake or accident, justice may have been defeated. Judicial miscarriage.

A breach of the law having been committed in the equipping or arming of a vessel for belligerent purposes, all that the government could do, under the foreign-enlistment act, was to seize the delinquent vessel, and bring it into a proper court for condemnation. This done, and the evidence of the facts in such a case having been submitted by the public prosecutor to the court, the functions of the government are at an end. It can do no more. The rest is with the law. In England, in America, in every well-constituted and well-regulated state, the executive and judiciary powers are separated by a broad and impassable barrier. There is no authority in the state, however high, that would venture to interfere with the discharge of the judicial office. It would be considered a violation of the most sacred principles, and an outrage on all propriety, to seek to control, or even to influence, directly or indirectly, the decision of a judge, even of the most inferior tribunal.

This being so, the government of a neutral cannot justly or reasonably be held responsible for all the mischief which a vessel, equipped in violation of its law, may do throughout the course of, possibly, a protracted war because a suit which it has properly instituted fails through a mistake of the judge. To decide in the affirmative would be to establish a rule hitherto unknown, and calculated to impose on neutral states a degree of responsibility altogether unprecedented and unheard of.

As regards liability for the acts or omissions of subordinate officers, it seems to me that, while a government may properly be held responsible for what is done, or omitted to be done, by its orders or under its own immediate control, it would be most unreasonable to hold it answerable for the acts or negligences of subordinates, [Page 269] at all events, unless it afterward ratifies and adopts what these may have done. Liability for acts of subordinates.

In the matter of civil rights individuals may be liable for the negligence of those to whom they depute the conduct of their affairs; but, considering the complicated machinery of political government, especially when distant colonies and dependencies are concerned, and the consequent necessity of employing subordinate officers, it would be unreasonable and unjust to hold that the negligence of a subordinate, more especially from mere error of judgment, as, for instance, in allowing a vessel to take too much coal, was a want of “due diligence” on the part of the government, for which it can justly be held liable.

The following passage from the British Counter-Case sums up so well the different sides of this question, that I do not hesitate to produce it at length:

That due diligence requires a government to use all the means in its power, is a proposition true in one sense, false in another; true, if it means that the government is bound to exert honestly and with reasonable care and activity the means at its disposal; false, impracticable, and absurd, if it means that a liability arises whenever it is possible to show that an hour has been lost which might have been gained, or an accidental delay incurred which might, by the utmost foresight, have been prevented; that an expedient which might have succeeded has not been tried; that means of obtaining information which are deemed unworthy or improper have not been resorted to; or that the exertions of an officer or servant of government have not been taxed to the utmost limit of his physical capacity.

Nor can we fail to observe that, in proportion as we extend the duty of prevention incumbent on neutral governments, from hostile enterprises which are open and flagrant to acts of a more doubtful character which border on the line betwixt the lawful and the unlawful, it becomes more and more difficult to exact from the neutral, in the performance of that duty, peculiar and extraordinary vigilance and activity. The duty of preventing the open assembling within neutral territory of an armed hostile expedition against a neighboring country is plain and obvious, and requires only a prompt exercise of adequate force. But it is otherwise when we come to acts of a different class, the criminality of which depends on a latent intention; such, for example, as the mere procuring for belligerent purposes from the yards of a neutral shipbuilder, whose ordinary business it is to build ships of all kinds for customers of all nations, a vessel with some special adaptation for war. There is nothing in the relation of a neutral to a belligerent to cast on the former the duty of exercising within his own territory a constant and minute espionage over ordinary transactions of commerce for the protection of the latter. This relation, always onerous to the neutral, is, at the same time, it must be remembered, purely involuntary on his part. It is forced on him by the quarrels of his neighbors in which he has no concern, or by their internal discords when those discords break out into civil war.1

While I readily admit that the measure of diligence which a government applies to the affairs it has to administer, if the ordinary course of its administration is negligent and imperfect, is not necessarily to be taken—any more than it would be in the case of an individual—as the measure of diligence which it is to apply in the discharge of international obligations, yet credit should be given to a government for ii properly diligent discharge of public duty.

Furthermore, if a given law and a particular system of administration have been found by practical experience sufficient to protect the interests of the government in the important matter of the public revenue, and also to insure the observance of neutral duties on the occasion of all former wars, surely it is highly unreasonable and unjust to condemn the whole system as defective, and the government as negligent, for not having amended it in anticipation of future events.

It must not be forgotten that, since the passing of the British statute, wars have occurred in all parts of the world, but no complaints of the violation of that statute have occurred till American citizens had recourse to new modes of defeating or evading it.

[Page 270]

Such, in my opinion, are the principles by which we should be guided in deciding whether Great Britain has or has not failed to satisfy the requirements of due diligence. I proceed to apply them to the different heads of complaint preferred by the United States.

One main head of complaint on their part is that the municipal law of Great Britain, as contained in the foreign-enlistment act, was insufficient to enable the British government to enforce the observance of the duties of neutrality by its subjects. We have first a general condemnation of English acts of Parliament. “English acts,” we are told, “are so overloaded with a mass of phrases, alike unprecise and confused, with so much of tedious superfluity of immaterial circumstances, as if they were specially designed to give scope to bar chicanery, to facilitate the escape of offenders, and to embarrass and confound the officers of the government charged with the administration of law. Such, indeed, has been the ordinary complexion of the legislation of Great Britain, and this style of complex verbosity of legislation has unhappily been transmitted to the United States.” But then we have the satisfaction of learning that there it begins to encounter steady efforts of reformation, which are conspicuous in the legislation of many of the American States.1 Municipal law of Great Britain.

Of the foreign-enlistment act we are told that “its practical inefficiency was glaringly apparent on the face of all the relative diplomatic correspondence between Great Britain and the United States.”

That it was “valueless, except as occasion should arise to make it serve as a pretext to cover, in diplomatic communication with other governments, indifference, unfriendly, or hostile animus on the part of some British minister.”

British ministers are represented as “floundering along in the flat morass of the meaningless verbosity and confused circumlocution of an act of Parliament.” They are represented as having been “compelled to drift into the condition of foreign war rather than break free from the entanglement of the cobweb meshes of that act.”

It strikes me that those who address us in this strange style must suppose us to be ignorant that the English act of 1819 was framed on the model of the American act of 1818; that it is, in the main, identical in language, and is, in one, and that an important particular, more stringent than its predecessor.

The English act, in the part of it with which we are concerned, makes it an offense to “equip, furnish, fit out, or arm, within the United Kingdom or the Queen’s dominions, without the royal license first obtained, any ship or vessel, with the intent, or in order that such ship or vessel shall be employed in the service of any foreign prince, state, or potentate, or of any foreign colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise any powers of government in or over any foreign state, colony, province, or part of any province or people, as a transport or storeship, or with intent to cruise or commit hostilities against any prince, &c., &c., with whom the Queen is not at war.” To attempt to equip, &c., any such ship or vessel with a like intent, or to procure it to be done, as well as knowingly to aid and assist, or be concerned in so doing, is equally made an offense. The penalty attached to the offense is fine and imprisonment, or either of them, at the discretion of the court, and the forfeiture of the vessel, with all its accessories, and of all materials, arms, ammunition, and stores which [Page 271] may be found on board, on the vessel being prosecuted and condemned; such prosecution and condemnation being directed to be had “in like manner, and in such courts, as ships and vessels may be prosecuted and condemned for any breach of the laws for the protection of the revenues of customs and excise, or of the laws of trade and navigation.” Foreign-enlistment act.

So much for the prohibitive or punitive part of the law. The preventive part consists in a provision that the ship or vessel may be seized by any officer of Her Majesty’s customs or excise, or any officer of the royal navy, who is by law empowered to make seizures for any forfeiture incurred under the revenue laws, or laws relating to trade or navigation, within the limits of their particular jurisdictions. Preventive law.

On comparing the enactment relating to the fitting out of ships with the corresponding enactment of the American statute, it will be found that the English act, on which so much vituperative criticism has been lavished, is, in fact, as regards the equipment of vessels, more comprehensive and effective than the former. For, while the English statute makes it an offense to equip or arm, in the disjunctive, by the American statute the offense consists in fitting out and arming, in the conjunctive, thus bringing the vessel a stage further on toward belligerent completion before the law can interpose. Comparison with American acts.

It is true that the judges in the court of exchequer having been divided in opinion, in the case of the Alexandra, as to whether the arming of a vessel was not necessary before the intent that she should be employed for belligerent purposes could be inferred, the result in that case was that the more comprehensive enactment of the English statute failed in its effect. But when it is said, in somewhat strong language, that the effect of the decision in the Alexandra case was to “emasculate” the English statute, it must be observed that, if such was the case, the effect was only to reduce the English act to the condition in which the American statute had been from its birth. I think it unnecessary, on the present occasion, to express any opinion on the question on which the judges of the court of exchequer were divided. I will only, in passing, repeat my conviction that neither the American nor the English statutes were ever intended to interfere with the execution of orders from belligerents by American or British ship-builders, but simply to prevent the ports of the respective countries from being used for fitting out privateers, or being made the base of hostile expeditions. But the distinction between equipping and arming, and equipping without arming, is immaterial for the present purpose; for, in point of fact, that distinction never created any difficulty in the action of the British government. In the cases both of the Florida and the Alabama, the only question on which the action of the government was arrested was as to the sufficiency of the evidence of the vessel being intended for the service of a belligerent.

But it is with reference to the preventive powers conferred on the Executive by these acts that the case and argument of the United States principally assail the British statute, and triumphantly assert the superiority of the American act; maintaining that, while the British act depends on the sanction of penalties, the American act places power in the hands of the Executive which effectually secures it against infraction of the law. Preventive powers of British and American acts.

Acquainted with the two acts, I read, I must say, with much surprise, the following passage in the argument of the United States:

The great difference between the two consists in the cardinal fact that the provisions [Page 272] of the British act are merely punitive, and to be carried into effect only by judicial instrumentality; whereas the American act is preventive, calls for executive action, and places in the hands of the President of the United States the entire military and naval force of the Government, to be employed by him in his discretion for the prevention of foreign equipments and foreign enlistments in the United States.1

This appears to me a thoroughly inaccurate representation of the effect of the American act, which, as I understand it, confers no discretionary power on the President beyond that of employing the military or naval forces of the republic to support the law, if necessary. Referring to the different violations of neutrality made offenses by the act, the 8th section provides that—

In every case in which a vessel shall be fitted out and armed, or attempted to be fitted out and armed, or in which the force of any vessel of war, cruiser, or other armed vessel shall be increased or augmented, or in which any military expedition or enterprise shall be begun or set on foot, contrary to the provisions and prohibitions of this act; and in every case of the capture of a ship or vessel within the jurisdiction or protection of the United States as before defined; and in every case in which any process issuing out of any court of the United States shall be disobeyed or resisted by any person or persons having the custody of any vessel of war, cruiser, or other armed vessel of any foreign prince or state, or of any colony, district, or people, or of any subjects or citizens of any foreign prince or state, or of any colony, district, or people, it shall be lawful for the President of the United States, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, for the purpose of taking possession of and detaining any such ship or vessel, with her prize or prizes, if any, in order to the execution of the prohibitions and penalties of this act, and to the restoring the prize or prizes in the cases in which restoration shall have been adjudged, and also for the purpose of preventing the carrying on any such expedition or enterprise from the territories or jurisdiction of the United States against the territories or dominions of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace.

To any one who reads this section with any degree of attention, its meaning, I think, must be clear. No arbitrary power is given to the President, nor any power of seizing a vessel at all, except “in order to the execution of the prohibitions and penalties of the act.” No discretionary power whatever is given him except that of using force, where force is required, for overcoming resistance.

The enactment was contained in the original act of 1794, which was passed shortly after the French minister, Genet, had set the Government at defiance, and threatened to resist by force any attempt to detain a privateer illegally armed in the port of Philadelphia, and after the French vice-consul at Boston had actually rescued by force a suspected vessel which had been seized by the United States authorities.

The section was obviously directed against the repetition of such an occurrence, and was necessary to enable the President to use the forces of the state on a sudden emergency without having recourse to the Senate, The section gives the President no power which he would not have had without it, except where recourse to actual force is necessary. It is an entire misrepresentation to say that he has a discretionary power to seize and detain a vessel without bringing her before the proper court for adjudication. His power is to employ the state force, if necessary, among other things, to seize a vessel, “in order to the execution of the prohibitions and penalties of the act,” which implies that the vessel must be submitted, in the usual course, to the proper legal process to decide on her condemnation or release. Often as the action of the Government was invoked by the governments of Spain and Portugal, during their colonial wars, to prevent the arming of vessels in the ports of the United States, frequent as have been [Page 273] the raids and hostile expeditions from American territory since, no instance has been adduced of the exercise of this alleged discretionary power by a President of seizing a vessel and keeping her, without putting the matter into due course of law, and I feel tolerably confident that no such instance has ever occurred.

Instances may have occurred, as in the case of the Spanish gun-boats building at New York in 1869, in which it was considered necessary to provide for the use of force to arrest ships believed to be about to go forth on military expeditions; but such seizures have been followed by the ordinary course of legal procedure and inquiry, or the intended expedition having been prevented or else abandoned, the vessel has been restored without any further proceeding. Instances have no doubt occurred in which vessels have been seized by order of the President, as head of the executive, as vessels might be seized by order of Her Majesty’s government; but this was only that the statute might be put in force. In like manner vessels may have been seized under the ordinary civil authority, and it being found that there was no sufficient case against them, may have been set free. But no instance, I believe, has occurred, except where force was actually necessary, of the seizure of a vessel by a President, in the mere exercise of executive power, suspending the ordinary action of the law. No example of such a proceeding has been, or, I believe, can be, adduced, with the single exception of the case of Gelston vs. Hoyt, to which I am about to refer, in which the experiment to exercise such a power was tried and failed.

By the decision of the Supreme Court of the United States, in the last-mentioned case, which is reported in the 4th volume of Curtis’s Reports, page 228, the view I have taken of the effect of the American act is conclusively borne out. An action having been brought by a shipowner against a civil officer for the seizure and detention of a ship, the defendant pleaded the order of the President, but the plea was held bad. In giving judgment, Mr. Justice Story says:

The argument is that, as the President has authority, by the act, to employ the naval and military forces of the United States for this purpose, à fortiori he might do it by the employment of civil force. But, upon the most deliberate consideration, we are of a different opinion. The power thus intrusted to the President is of a very high and delicate nature, and manifestly intended to be exercised only when, by the ordinary process or exercise of civil authority, the purposes of the law cannot be effectuated. It is to be exerted on extraordinary occasions, and subject to that high responsibility which all executive acts necessarily involve. Whenever it is exerted, all persons who act in obedience to the executive instructions in cases within the act are completely justified in taking possession of and detaining the offending vessel, and are not responsible in damages for any injury which the party may suffer by reason of such proceeding. Surely, it never could have been the intention of Congress that such a power should be allowed as a shield to the seizing officer in cases where that seizure might be made by the ordinary civil means. One of the cases put in the section is, where any process of the courts of the United States is disobeyed and resisted; and this case abundantly show that the authority of the President was not intended to be called into exercise, unless where military and naval forces were necessary to insure the execution of the laws. In terms, the section is confined to the employment of naval and military forces; and there is neither public policy nor principle to justify an extension of the prerogative beyond the terms in which it is given. Congress might be perfectly willing to intrust the President with the power to take and detain, whenever, in his opinion, the case was so flagrant that military or naval force were necessary to enforce the laws, and yet with great propriety deny it where, from the circumstances of the case, the civil officers of the Government might, upon their private responsibility, without any danger to the public peace, completely execute them. It is certainly against the general theory of our institutions to create great discretionary powers by implication; and in the present instance we see nothing to justify it.

I cannot help expressing my surprise that, with this decision before them, American lawyers should have submitted so incorrect a statement to this tribunal. If, indeed, what is meant is that the power of the [Page 274] President to use the forces of the State to prevent forcible violations of neutrality gives any superior efficacy to the American system, the answer is that which has been given by Sir R. Palmer in his most able argument, namely, that in all cases similar to those referred to in the American act, the sovereign of Great Britain possesses full power to use force, civil or military, such as the case may call for.

The first American neutrality act of 1794 was silent as to the authority by whom vessels infringing the law should be seized, proceedings being apparently left to be taken by any person choosing to become an informer, to whom half the penalty and half the forfeited property is to go. From the case of Gelston vs. Hoyt, just cited, it however appears that at the time that cause was decided, in all cases of the forfeiture of vessels the duty of seizure devolved on the officers of customs. In this respect, therefore, the practice of the two countries would be the same.

Loud complaints having been made, by the representatives of Spain and Portugal, of the number of privateers fitted out and manned, from ports of the Union, by American citizens, and preying on the commerce of the two countries, under commissions from the revolted colonies, a new statute was passed in 1818, which, in addition to the enactments of the act of 1794, which otherwise remained the same, contained two new provisions.

Section 10 provided that:—

The owners or consignees of every armed ship or vessel sailing out of the ports of the United States, belonging wholly or in part to citizens thereof, shall enter into bond to the United States, with sufficient sureties, prior to clearing out the same, in double the amount of the value of the vessel and cargo on board, including her armament, that the said ship or vessel shall not be employed by such owners to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace.

By section 11 special power was given to collectors of customs—

To detain any vessel manifestly built for warlike purposes, and about to depart the United States, of which the cargo shall principally consist of arms and munitions of war, when the number of men shipped on board, or other circumstances, shall render it probable that such vessel is intended to be employed by the owner or owners to cruise or commit hostilities upon the subjects, citizens, or property of any foreign state, or of any colony, district, or people with whom the United States are at peace, until the decision of the President be had thereon, or until the owner or owners shall give such bond and security as is required of the owners of armed ships by the preceding section af this act.

But the power thus given would evidently not apply to the case we have here to deal with, of vessels leaving equipped, but without an armament, and having no arms or munitions of war on board.

In like manner the bonding clause just quoted (section 10) applies only to armed ships, and therefore would equally have been unavailable. Besides which, it applies only to ships belonging in whole or in part to American citizens, and would therefore obviously have no application to a ship sold to a foreign government.

But though it is an entire mistake to say that the American act of 1818 was in any respect superior to the British act of the ensuing year, it is true that, since the time the American act was passed, the working of the legal administration in the United States has become, for the purpose of proceeding against a suspected vessel, in one respect better than that of Great Britain. It appears that in each district of the United States there is a resident legal officer of the Federal Government, called the district attorney, to whom, if the action of the Government is invoked, a question of this kind is referred, and whose duty it is to ascertain the facts, collect the evidence, and report to the Government. Such an officer is, no doubt, better adapted to such a purpose [Page 275] than a collector of customs. But can it be said to have been the duty of the British government, not having similar district officers, to appoint such, at the different ship-building ports, with a view the better to protect belligerents against ships being equipped or armed against them?

Another advantage of the American system is, that the duty of adjudicating in such a case devolves on a judge in the court of admiralty instead of on a jury, who are sometimes apt to be swayed in favor of their own countrymen when sued at the instance of foreigners. But this relates to the condemnation of vessels, not to their seizure. And with the exception of the Florida and Alabama, every vessel the seizure of which could be asked for, as instanced in the cases of the Alexandra, the Pampero, and the iron-clad rams at Birkenhead was seized and prevented from doing any harm to the commerce of the United States. The Alexandra, it is true, was released after trial in England, but she was seized again at Nassau, and not liberated till after the close of the war. Practically speaking, therefore, in the later cases, everything was accomplished which could have resulted from the most perfect machinery that could have been devised for such a purpose.

Great stress is laid in the pleadings of the United States on the British act of 1870, passed on the report of the neutrality commissioners. The act is held up as the standard of neutral duty and of the requirements necessary to give effect to it. No doubt that act introduced very material changes, and did much to strengthen the hands of the executive. It made it an offense to build, or agree to build, or procure to be built, as well as to equip or arm. It did away with all question as to intent, by making it sufficient if the party doing any of these things knows, or even has reasonable cause to believe, that the vessel will be employed in the service of a belligerent. To dispatch a vessel with such intent, knowledge, or reasonable cause of belief, is added to the category of offenses. Still more remarkable is the new proceeding introduced, in addition to the former process, for the condemnation of the vessel, for the purpose of testing the character of a suspected ship. If the secretary of state, or chief executive authority in any place, is satisfied that there is reasonable and probable cause for believing that a ship within Her Majesty’s dominions has been, or is being, built, commissioned, or equipped, contrary to the act, and is about to be taken beyond the limits of such dominions, he may issue his warrant to any officer of the customs, or public officer, or commissioned officer of the army or navy, who is thereupon to seize, search, and detain the ship. The owner may apply, indeed, to the court of admiralty for the restoration of the vessel; but it is incumbent upon him, in order to obtain it, to establish that the act has not been contravened. So that the order of procedure is reversed. Instead of it being necessary for the prosecutor to establish at all events a prima-facie case of guilt, the owner has, in the first instance, to establish innocence—a proceeding alien altogether to English jurisprudence. British act of 1870.

No doubt these are great changes—possibly improvements. But is it just to say that the pre-existing law was so essentially defective as that the British nation can be held liable by reason of its imperfections? Law, like all other human institutions, is in a constant state of progress and change. New events, now conjunctures, new combinations of circumstances, the lessons of experience, from time to time point out to the lawgiver the necessity of altering the work of the past to adapt it [Page 276] to the requirements of the present. Is every amendment of the law to carry with it the condemnation of the legislation which preceded it?

At all events, it does not lie in the mouths of Americans to say so in the present instance. I have just passed their own law in review. According to it, it is not an offense to build or equip a vessel unless it be also armed; knowledge, or reasonable ground of belief, is not, as under the act of 1870, sufficient; the intent must be proved. The intermediate process given by the latter act, and by which the burden of proving the innocent character of the ship, in the first instance, is cast on the owner, is unknown.

For all practical purposes, the neutrality laws of the United States and of Great Britain, prior to the late war, were substantially the same. With this model act now for two years before them, the United States have done nothing to bring their law up to the standard of it. How can they now, with any pretense of justice, ask that Great Britain shall be tried by the test of a law which is as much in advance of their own present law as it is of the past law of Great Britain?

When, notwithstanding this, one reads in the United States argument that “the British government has stood obstinately on confessedly defective legislation of neutrality;” that “it is not yet emancipated from the national prejudices which obstructed Mr. Canning;” that it “still lags behind the United States in appreciation of the true princples of public law, which lie at the foundation of the relations of independent sovereign states,” it is difficult to express the feeling which arises consistently with the seriousness which belongs to the present occasion.

It is true that it is not the law of the United States, but that of Great Britain, that is now on its trial. It may not be enough to say that if Great Britain is black America is no whiter. It may not be enough to say, as Great Britain might do in so many instances, “Si in me iniquus es judex, eodem ego te crimine eondemnaho.” Yet a comparison of the respective laws of the two countries is by no means superfluous. For a remark is here to be made, which applies also to many other parts of the present controversy, namely, that the Government of the United States can have no right to require more of that of Great Britain than it could itself have rendered had the position of the two countries been reversed, and Great Britain had been the belligerent and the United States the neutral power. For, in the absence of convention, equality and reciprocity lie at the very root of international obligations, and no nation has a right to demand of another more than under the like circumstances it would have been able itself to render.

The statement I have quoted above from the United States argument, that “the British government has stood obstinately on confessedly defective legislation of neutrality,” refers, I presume, to the communications which passed during the war between the government of Great Britain and that of the United States on the subject of an amendment of the British foreign-enlistment act. With respect to these communications, the facts, shortly stated, are as follows: In 1861, and again 1863–’64, Mr. in Adams suggested (in the first instance, with a view to check the British colonial trade in articles contraband of war) that it might be of advantage if the British legislature would pass an act similar to the temporary act passed by the United States in 1838, which had reference only to expeditions or exports of arms (not carried by sea) between the United States and any foreign territory conterminous with the United States. The precedent of this legislation was actually followed by Canada in 1864, when events made it requisite. No other request [Page 277] for an alteration of this British law was at any time made on the part of the United States. Negotiations for amendment of the foreign-enlistment act during the civil war.

On the 19th of December, 1862, Earl Russell wrote thus to Mr. Adams:

I have the honor to inform you that Her Majesty’s government, after consultation with the law-officers of the Crown, are of opinion 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 to confer at any time 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.1

In reply to this overture, (which was received with, equal courtesy and caution by the Government of the United States,) Mr. Adams was instructed not to make any suggestions whatever, but to state (according to Earl Russell’s report of the conversation) “that his Government were 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,” or (according to Mr. Adams’s own report) that the Government of the United States considered their own law as “of very sufficient vigor.”2 Earl Russell thereupon said that the cabinet, under the advice of the lord chancellor, (Lord Westbury,) had come to the same conclusion with reference to the law of Great Britain, “so that no further proceedings need be taken at present on the subject.” Earl Russell’s overture was not founded on any opinion of the insufficiency of the British law for the performance of the international obligations of Great Britain, but simply on the advice of the law-officers that certain amendments might be possible which would increase the power of the executive government to deal with cases within the scope of that law. There could be no possibility, however, of carrying such amendments through Parliament unless similar amendments had been simultaneously made in the law of the United States, and the reply of the United States, throwing upon Great Britain the whole responsibility of making propositions in the matter, gave no assurance that those propositions, if made, would lead to any useful result. If anything had been needed to confirm this impression, it would be found in Mr. Seward’s answer, when informed of what had passed. Writing to Mr. Adams on the 2d of March, 1863, he says:

It remains for this Government 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.3

Not content with instituting a comparison between the neutrality law of Great Britain and that of the United States, the American case has gone on to compare both with the municipal law of other states; which comparison it seeks, by some strange manipulation, to turn in favor of the United States, though, as we have seen, the laws of the two countries were, at the time in question, substantially the same. Comparison with foreign laws.

[Page 278]

Having gone carefully through the laws of the leading maritime nations, I find none in which the equipping or arming of vessels for the use of a belligerent was, prior to the breaking out of the American civil war, prohibited, except under circumstances which would make it a violation of neutrality according to international law. After the breaking out of the war, in one or two countries, as in France and Brazil, the law in this respect was put on the same footing as the law of Great Britain and America prior to the dispute. In some, as in Italy, it has been altered since. In these cases the altered law is referred to in the argument of the United States as though it had existed at the time of the war.

In the laws of those states which had hitherto taken but little part in maritime affairs, no law on the subject of equipping or arming ships was perhaps to be expected. I only observe, therefore, as it were in passing, that Austria had no law relative to this subject. Law of Austria.

In answer to an inquiry made on the part of tier Majesty’s government, the Austrian minister for foreign affairs thus responds:

Apart from the principles which lie at the foundation of this declaration, (the declaration of Paris of 1856, there exists, however, no law in Austria, nor any other order generally binding, which could be made to apply to violations of neutrality by Austrian subjects.

The imperial government have endeavored to supply this want in cases of war between other States, by promulgating in legal forms special regulations for the preservation of neutrality applicable only to the war in question. Thus, in the year 1854, in consequence of the war then existing, the ministerial ordonnance of May 25, 1854, was promulgated, of which copy is inclosed herewith.

In such special declarations the generally acknowledged principles of international law, as well as the known views of the belligerent powers on certain points, have been taken into consideration, in order, as much as possible, to obviate any complaints of infringement of neutrality.

There does not exist, however, a law of this kind applicable to all future occasions, and more particularly there are no general laws in Austria prohibiting the construction, equipment, or manning of ships (in Austrain harbors) which are destined for belligerent powers, or are suspected of being so.1

There is nothing, therefore, to prevent the equipping or arming of ships for a belligerent by the laws of Austria.

In like manner it appears, from the note furnished to Her Majesty’s representative at Berlin, that no law exists in Prussia prohibiting the building or sale of ships.1 Law of Prussia.

The Swiss law on the subject of neutrality has been introduced in the United States argument in terms of laudation; but as in the nature of things it can have nothing to do with maritime neutrality, I presume it has only been brought forward out of compliment to our Swiss colleague, and I need say nothing further on the subject. Law of Switzerland.

I pass on to maritime nations. And first, as to France. It is certain that there is no prohibition in the French codes against the building or equipping of ships for a belligerent. The only provision relative to a breach of neutrality by a French subject is to be found in the eighty-fourth and eighty-fifth articles of the code pénal, which are in these terms: Law of France.

  • Art. 84. Quiconque aura, par des actions hostiles non-approuvées par le gouvernement, expose l’état à une déclaration de guerre, sera puni du bannissement; et, si la guerre s’en est suivie, de la déportation.
  • Art. 85. Quiconque aura-par des actes non approuvés par le gouvernement, exposé des Français à éprouver des représailles sera puni du bannissement.

2 Ibid., p. 65.

[Page 279]

On these articles M. Treitt, the learned counsel to the British embassy, makes the following observations:

Vous voudrez bien remarquer la généralité de ces expressions, quiconque, actions hostiles: le législateur n’as pas voulu définir ce qu’il faillait entendre par actions hostiles; il en a laissé l’appréciation souveraine aux juges.

II ne s’agit point dans les articles 84 et 85 du code pénal des machinations et manœuvres au profit d’une puissance étraugère, et ayant pour objet de provoquer des hostilitiés. Ces machinations pratiqués dans une intention et un but criminels rentrent dans les différentes espèces de trahison, lesquelles sont punies par les articles 76 à 83 du même code. Les articles 84 et 85 s’appliquent aux simples cas d’imprudence, de témérité, de négligence; c’est moins l’intention que le fait matériel qui est puni. La loi ne voit que le résultat; ainsi: “La France a-t-elle été exposée à une déclaration de guerre, la guerre a-t-elleété declare? Les Français ont-ils été exposés à de représailles?” Ces seules questions résolues alfirmativement entraineront l’application d’une des peines si sévères prononcées par la loi, et en outre le paiement de dommages-intérêts qui peuvent toujour être réclamés.

II faut done trois conditions pourqu’il y ait lieu à l’application des articles 84 et 85 du code pénal:

Que l’action soit hostile.
Que l’action n’ait pas été approuvée par le gouvernement.
Que la France a été exposée à une déclaration de guerre ou des Français exposés à des représailles.

Je précise ces trois circonstances parceque c’est le pouvoir judiciaire seul qui est appelé à les résoudre et à décider de la culpabilité.

Si les juges décident que telle action n’est point une action hostile, et par conséquent non-violatrice de la neutralité, le gouvernement devra respecter cette décision et pourra l’opposer au belligérant qui se plaindrait.

Si devant les juges l’accusé excipait d’une approbation, soit tacite, soit expresse par le gouvernement, l’action incriminée ne pourrait plus être punie.

Entin, si l’action hostile n’avait pas pour conséquence des représailles ou une éventualité de guerre, elle cesse d’être criminelle.1

Writing to Mr. Fane, then British minister at Paris, M. de Moustier, the minister for foregn affairs, says:

A proprement parler, il n’y a pas de disposition dans la législation francaise qui marque d’une manière précise les limites de la neutralité à observer entre deux puissances étrangères qui sont en état de guerre, les questions de cette nature étant d’un caraetère mixte, et trouvant leur solution dans les principes généraux du droit international.2

It is clear, therefore, that the French law went no further than to provide for the punishment of any infraction of international law which has the effect of exposing France to a declaration of war or to reprisals. Now, as we have seen, the sale even of armed ships is not an offense against neutrality and could not produce the consequences referred to in the articles of the code. It is true the government has the power of preventing the arming of vessels in its own hands, if it thinks proper to use it, as the exportation of arms, except with the permission of the government, is prohibited under heavy penalties—not, indeed, with the motive of preventing breaches of neutrality, but from motives of policy of a very different character. If, indeed, the construction of an armed vessel formed part of an enterprise having for its immediate object hostile operations against a belligerent power, then, as I have already pointed out, the whole would amount to a violation of neutrality.

But an imperial decree of the 10th June, 1861, passed with a view to the war which had then broken out, contained in its 3d article the following provision:

Il est interdit à tout Francais de prendre commission de l’une des deux parties pour armer des vaisseaux en guerre, ou d’accepter des lettres de marque pour faire la course maritime, ou de concourir d’une manière quelconque á l’équipement ou à l’armement d’un navire de guerre ou corsaire de l’une des deux parties belligérantes.3

[Page 280]

Thus, the law of France, in respect of the equipping and arming of ships of war, was placed on the same footing as that of Great Britain and America.

Belgium, which, as it is known, has adopted the French codes, has likewise the eighty-fourth and eighty-fifth articles of the Code pénal; but with the exception of severe laws against privateering, or the reception of privateers, the prohibitive and preventive power of the law depends on the articles in question. Law of Belgium.

The Netherlands, in like manner, having also adopted the French code, have the eighty-fourth and eighty-fifth articles; but no special provision as to equipping or arming of vessels in the way of trade existed prior to the year 1866, as appears from the express statement of M. van Zuylen de Nyevelt, the Netherlands minister for foreign affairs, in a letter to Mr. Ward, found in the appendix to the British case.1 Law of the Netherlands.

It is true that M. de Zuylen makes the following observation:

Quant aux moyens coactifs dont le gouvernement pourrait disposer pour empêcher des violations de sa neutralité, les articles 84 et 85 du code pénal peuvent aussi dans quelques cas servir à ce but. Ceux, par exemple, qui tacheraient d’équiper ou de vendre des vaisseaux de guerre dans nos ports pour le compte des belligérants pourraient être poursuivies en vertu de ces articles; les navires alors seraient saisis comme pièce de conviction et par là même leur sortie serait empêchée.

But it is to be remarked that the foregoing observation as to the possible application of the eighty-fourth and eighty-fifth sections of the penal code to the equipping or sale of ships is given only as a matter of opinion; no instance appears to have occurred in which the equipping or sale of a vessel of war has been held to be an offense within these articles. It must obviously depend on whether what was done amounted to a violation of international law affording a just cause of war.

The regulations issued by the Dutch government in 1866 do not touch the case of the equipment or sale of ships, but only the admission of belligerent vessels into Dutch ports. It may be remarked, in passing, that it is expressly provided by article 4 of the regulations that “ships of war may remain an unlimited time in Dutch harbours and estuaries, and may also provide themselves with an unlimited supply of coal.”1

Spain has two provisions corresponding to the articles of the French code, viz, article 148 of the codigo penal, and article 258 of a statute of 1822:2 Law of Spain.

  • Art. 148. Whosoever shall, without having been permitted to do so by competent authority, have provoked or given motive to a declaration of war against Spain on the part of another power, or shall have exposed Spanish subjects to suffer vexations or reprisals against their persons or properties, shall be punished with imprisonment; and if such person be a public functionary, he shall be punished with temporary reclusion.
  • Art. 258. Whosoever shall, without the knowledge, authority, or permission of the government, have committed hostilities against any allied or neutral power, or shall have exposed the State to suffer for that cause a declaration of war, or if such hostilities shall have been the ground for reprisals against Spaniards, he shall be condemned to give public satisfaction for such offense, and to reclusion or imprisonment for a term of from two to six years, and shall pay a fine equal to one-quarter of the amount of damages he shall have occasioned, without prejudice to any further punishment which he may be liable to incur for the violence committed. If said hostilities shall have brought on an immediate declaration of war, or if such declaration shall have preceded the time of the trials, the offender shall be punished with transportation.

But there is no law which touches the equipping or arming of ships of war for a belligerent. The decree relating to neutrality issued on the [Page 281] occasion of the American civil war is set out in the British Appendix.1 It contains no prohibition relating to the equipping or arming of ships.

It is stated, indeed, in the United States argument2 that the codigo penal, in article 151, forbids the expediting of “cruisers.” Is it possible that the writers are ignorant that the term “destinare buques al corso” does not refer to cruisers but to privateers?

Portugal has a corresponding provision in the one hundred and forty-eighth article, the Empire of Brazil in the eighty-third article, of the penal code of the respective countries. In the Brazilian code the offense consists in “committing, without the order or the authorization of the government, hostile acts against the subjects of another nation, so as to endanger peace or provoke reprisals.” Law of Portugal and Brazil.

In the report presented to His Majesty the Emperor of Brazil on these laws by D. Silva Ferrão, set out in the later United States documents,3 there is the following very pertinent observation:

Thus, it remains understood that if the fact in itself were not such as to give just reason for war, according to international right, it could never be reputed a crime even were it not authorized by the government, and were it eventually followed by war. Such a fact is not then a reason but a pretext for war.

In this elaborate report, in which the effect of the foregoing law is fully discussed, I find no reference whatever to the equipment or arming of ships, as being within it.

The government of Brazil, like that of France, upon the breaking out of the civil war, made special provision by law for the enforcing of neutrality. By a circular of the 1st of August, 1861, the presidents of the different provinces were instructed as follows:1

The Confederate States have no recognized existence; but, having constituted a distinct government de facto, the imperial government cannot consider their naval armaments as acts of piracy, nor refuse them, with the necessary restrictions, the character of belligerents, which they have assumed.

In conformity with this, Brazilian subjects are to abstain from all participation and aid in favor of one of the belligerents, and they must not take part in any acts which can be considered as hostile to one of the two parties, and contrary to the obligations of the neutrality.

The exportation of warlike articles from the ports of the empire for the new Confederate States is absolutely prohibited, whether it is intended to be done under the Brazilian flag or that of another nation.

The same trade in contraband of war must be forbidden to Brazilian ships, although they may be destined for the ports subject to the Government of the North American Union.

No ship with the flag of one of the belligerents, and which may be employed in this war, or intended for it, can be provisioned, equipped, or armed in the ports of the empire; the furnishing of victuals and naval provisions indispensable for the continuation of the voyage not being included in this prohibition.

No ship of war or privateer shall be allowed to enter and remain with prizes in our ports or bays more than twenty-four hours, except in case of forced arrival, and they shall in no way be allowed to dispose of the said prizes, or of objects coming from them.

Thus, going far beyond other nations, Brazil prohibited not only the sale of ships, but all trade in articles contraband of war even in its own ports.

Serious disputes having arisen in the course of the ensuing year between the Governments of the United States and Brazil on the subject of confederate cruisers received in ports of the empire, the Government, in order to prevent as far as possible the occasion of such troublesome remonstrances, published the still more stringent regulations contained [Page 282] in the circular of the 23d of June, 1863, set out in the seventh volume of the appendix of the United States, regulations much more rigorous than those which have been adopted by any other nation.1 But, as these regulations relate entirely to the reception of belligerent vessels in Brazilian ports, it is unnecessary to dwell upon them here.

Italy has in the one hundred and seventy-fourth and one hundred and seventy fifth articles of the penal code, provisions corresponding to those of the French code:2 Law of Italy.

  • Art. 174. If any person whosoever shall, by acts not authorized by the government of the King, have exposed the state to a declaration of war, he shall be punished with banishment; if the war has actually occurred, he shall be punished with temporary penal servitude.
  • Art. 175. If any person whosoever shall, by acts not approved of by the government of the King, have exposed the subjects of the kingdom to reprisals, he shall be punished with banishment even for a term of ten years or with imprisonment, without prejudice to any further penalty to which he may be liable on account of the acts he has committed. If the offender be a public functionary, he shall be punished with banishment.

So stood the law at the time of the breaking out of the civil war between the Northern and Southern States of America. In the course of it the King of Italy, in an ordinance of the 6th of April, 1864, but, so far as I have been able to discover, then for the first time, adopted the regulations established three years before by the Emperor of the French. By article IV, “no Italian subject shall take commission from either belligerent power to arm ships for war, or accept letters of marque to cruise, or assist in any way in fitting out, arming, or preparing for war a vessel or privateer of the said belligerents.”3

The naval code, which was published in 1866, in the chapter relating to the neutrality of the state toward foreign powers, (chap. vii,) has the following provisions:3

In case of war between powers toward which the state remains neutral, privateers or vessels of war with prizes shall not be received into the harbors or roadsteads, except in cases of stress of weather.

They will have to leave as soon as the danger has ceased.

No ship of war or privateer belonging to a belligerent will be allowed to remain longer than twenty-four hours in a port, harbor, or roadstead of the state, or in the adjacent waters, even when alone, except in case of necessity, arising from bad weather, of shipwreck, or of an absence of the means necessary to carry on the navigation with safety.

In no case will they be permitted during their stay in the port, harbor, or roadstead of the state to sell, exchange, or barter, or even give away any of the prizes (taken in war.)

The ships of war of a friendly power, even when belligerent, are permitted to touch or even to remain in any harbor, port, or roadstead of the state on condition that the object of their mission be exclusively a scientific one.

In no case can a belligerent ship avail itself of an Italian port for the purposes of war, or of obtaining arms and munitions. It shall not be able under the pretense of repairs to execute any alterations or other works designed to augment its warlike force.

Nothing shall be furnished to vessels of war or to belligerent privateers beyond articles of food and commodities, and the actual means of repair necessary to the sustenance of their crews and the safety of their navigation.

In the case in which vessels of war, whether privateers or merchantmen of the two belligerent nations, are both together in a port, harbor, or roadstead of the state, there shall be an interval of at least twenty-four hours between the successive departures of the vessels of one belligerent and those of the vessels of the other.

This interval can be increased according to the circumstances brought before the maritime authorities of the place.

The capture of prizes as well as any other act of hostility between two belligerent ships within the territorial waters or the adjacent waters of the islands of the state will constitute a violation of territory.

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In all these countries, at the time to which our attention has to be directed, the question whether, there had been a breach of the municipal law by a subject, turned on whether there had been a breach of neutrality, such as to expose the nation to war or reprisals. The equipping or arming of vessels for sale in the way of commerce does not come into question at all. It is, therefore, manifest that the municipal law, both of Great Britain and the United States, was far more stringent, though the punishment under the foreign law in case of a breach of the law was more severe, by reason of the greater gravity of the result, when a nation becomes exposed to war, or possibly actually involved in it.

I next turn to the law of the northern nations on the subject of neutrality.

The law of Demark relating to ships, with reference to neutrality, is fully set out in the third volume of the British Appendix.1 Law of Denmark.

Denmark appears to be one of the very few countries that have gone the length of prohibiting to the subject the carriage of articles contraband of war. But though unusually strict in that respect, and minute as to its regulations in many others, the law contains no prohibition of the equipping or arming of ships of war for the purpose of sale.

The Swedish ordonnance of April 8, 1854, while it expressly prohibits, by the eighth section, the arming or equipping of vessels for the purpose of privateering, is wholly without any prohibition against doing so with reference to ships armed or equipped for a belligerent state.2 Law of Sweden.

The only article in the Russian code relating to neutrality is the two hundred and fifty-ninth, which is as follows:3 Law of Russia.

If any Russian subject in time of peace shall by open force attack the inhabitants of a neighboring state or those of any other foreign country, and shall thereby subject his own country to the danger of a rupture with a friendly power, or even to an attack by such foreign subjects on the territory of Russia, for such a crime against international law, the offender and all those who participate voluntarily in his enterprise, with a knowledge of its objects and illegality, shall be sentenced to lose all their civil rights, and be condemned to hard labor in a fortress for a term of eight to ten years.

With the exception of this article, says M. de Westmann, in answer to an official inquiry from the British government,3 “La législation russe ne renferme pas de dispositions ayant pour but d’empêcher sur le territoire de la Bussie l’accomplissement d’actes dont les puissances belligérantes pourraient se plaindre comme d’une violation du principe de neutralité.”

There being thus no law in Russia relating to ships of war, and, as I have shown, none such in Prussia, I was surprised, after reference to the efficient regulations of the Dutch government, followed afterward by an assertion that by those regulations the construction of cruisers was prohibited, (which it is not,) to see it stated that “similar laws were to be found in Russia and in Prussia,” as to the latter of which it is added, (in a friendly spirit no doubt,) that it “once had occasion to apply its laws to the acts of British agents.”

But while the codes of so many maritime nations are silent as to the equipping or arming of ships of war in the way of trade, the codes of several—for example, Belgium, Denmark, Sweden—prohibit the fitting out of privateers. Here again the argument of the United States falls into the same strange mistake as before. It represents [Page 284] these governments as preventing not only the armament, but also the construction of cruisers.1 I can hardly suppose the writer ignorant of the meaning of the term corsaire, the term used in the laws in question, and which never has but one meaning, that of privateer, or in French phrase that of a “vaisseau armé en course par des particuliers, mais avec l’autorisation du gouvernement.”2 Neither of these countries has any law against the construction of cruisers. Such a statement, therefore, ought not to have been made. Laws as to privateers.

The argument of the United States winds up the comparison of the British law with that of other countries, with the following remarkable observations:3

The institutions of Italy, Brazil, Switzerland, France, Spain, Portugal, the Netherlands, and all other governments of Europe, indeed, except Great Britain, expressly assume, as to the institutions of the United States, that volunteer and unauthorized military and naval expeditions, undertaken in a neutral country, are to be restrained, because tending to involve such country in war with the country aggrieved. Infringements of the law are punished mainly for that reason, including the protection of the national sovereignty.

Hence, in all those countries, except Great Britain, the punitive law is a secondary fact; the primary fact being the preventive action of the government.

The United States perfectly understood this, the true relation of things, and while they indicted persons, and arrested ships, they did not, when occasion required action, rely on such merely punitive, or at most auxiliary, means, but called into play the armed forces of land and sea to support the Executive in summary acts of prevention by force for the maintenance not only of the sovereignty but of the neutrality of the Government.

Neither Lord Russell, in his correspondence with Mr. Adams, nor the framers of the British case, appear to have had any clear conception of these higher relations of the subject, although distinctly and explicitly stated in the best works of international law of Great Britain herself.

Great Britain alone pretends that punitive law is the measure of neutral duties; all other governments, including the United States, prevent peril to the national peace through means of prerogative force, lodged, by implied or express constitutional law, in the hands of the Eexcutive.

A stranger misrepresentation could scarcely have been penned. The assertion that the institutions of Great Britain do not assume that volunteer and unauthorized military and naval expeditions, undertaken in a neutral country, are to be restrained, is without the shadow of a foundation. It is equally untrue and unjust to say that Great Britain pretends that punitive law is the measure of neutral duties. Great Britain pretends nothing of the kind. The best answer to these unwarranted assertions is the fact, that the Alabama was attempted to be seized; that the Alexandra was seized; as were the Pampero and the Birkenhead rams, and the Florida at Nassau; by virtue of the preventive power alone; and that, if in any of those cases resistance had been offered, or force required, force would, as a matter of course, have been resorted to immediately to enforce the law.

But while the United States thus impugn the efficacy of the British law, and dwell upon the executive, as contradistinguished from legal, power possessed by their own, and, as they allege, by foreign governments—of which, by the way, they offer no proof whatever—at another time, with startling inconsistency, they assert that the government of Great Britain possesses this very executive power, and make the omission to put it in force the subject of vehement complaint.

The imagination of the writer must have been singularly lively, while [Page 285] his conscience must have slept, who could venture to put on paper the following passages:1

No independent state exists, either in Europe or America, encumbered with constitutional incapacity in this respect.

Violations of neutrality are issues of war and peace. Whatever power in a state declares war, or makes peace, has jurisdiction of the issues of peace and war, including of course all violations of neutrality.

In point of fact, such authority is not a quality of despotic government only: it belongs equally to the most constitutional government, as appears, for instance, in the political institutions of constitutional republics like Switzerland and the United States, and in constitutional monarchies, like Italy and Brazil.

The selection by the counsel of the United States of the countries of the four other members of the tribunal was, I presume, accidental. But let us go on:

The counsel of the United States submit these propositions as undeniable and elementary truths.

Yet the case and counter-case of the British government assume and persistently argue that the sole instrument possessed by the British government to enforce the performance of neutral obligations, at the time of the occurrences in question, was a particular act of the British Parliament.

Every government in Europe or America, except Great Britain, asserts and exercises authority to prevent its liege subjects (and à fortiori commorant aliens) from doing acts which tend to involve it in a war with any other government.

But the British government maintains that the sovereign state of Great Britain and Ireland, the imperial mistress of the Indies, the proudest in fame, the richest in resources, and (including her transmarine possessions) the most populous of the great states of Europe, does not possess constitutional power to prevent mercenary lawbreakers among her own subjects, or bands of desperate foreign rebels, commorant on her soil, from dragging her into acts of flagrant violation of neutrality, and thus affording, or tending to afford, just cause of war to other foreign states!

And such is the defense of Great Britain in answer to the reclamations of the United States.

It would be difficult to find any other example of a great state defending itself against charges of wrong by setting up the plea of its constitutional incompetency and incapacity to discharge the most common-place duties of a sovereign state.

Great Britain is not in that condition of constitutional disability which her ministers pretend.

We find, on the most cursory observation of the constitution of Great Britain, that the declaration of war, the conclusion of peace, the conduct of foreign affairs, that all these things are in Great Britain elements of the prerogative of the Crown.

We cannot believe and do not concede that in all these greater prerogative powers there is not included the lesser one of preventing unauthorized private persons from engaging in private war against a friendly foreign state, and thus committing Great Britain to causes of public war on the part of such foreign state.

If the exercise of such power by the Crown involves derogation of the rights of private persons which ministers fear to commit, they should obtain a proper act of Parliament, either for antecedent general authorization or for subsequent protection, all which is within the scope of the theoretic omnipotence of Parliament.

The British ministers do not scruple to suspend the privileges of the writ of habeas corpus, whether with or without previous parliamentary authorization, and whether in the United Kingdom, or in the colonies, on occasion of petty acts of rebellion or revolt, that is, the case of domestic war: a fortiori they should and may arrest and prevent subjects or commorant foreigners engaged in the commission of acts of foreign war to the prejudice of another government.

Is it possible to deny or to doubt that British ministers might as well do this as the ministers of Switzerland, Italy, Brazil, and the United States in like circumstances?

Again Switzerland, Italy, Brazil, and the United States—

Has the Queen of the United Kingdom of Great Britain and Ireland less executive power than the President of the United States? And if she have less, could not the deficient power be granted to her by act of Parliament, just as readily as similar executive power, in this relation, has been granted to the President of the United States by their Congress?

But there is no such deficiency of power in the British ministers. Their own conduct in pertinent cases proves conclusively that they have the power, and can exercise [Page 286] it, when they choose, without affording occasion of any serious doubt or denial of the constitutionality of their acts.

Be it remembered that the excuse of the British government, for omitting to detain the Alabama and other confederate cruisers, was the alleged want of power to act outside of the foreign-enlistment act.

And yet, subsequently to the escape of the Alabama from the port of Liverpool, on occasion of the construction in the ports of Great Britain of certain other vessels for the confederates, commonly spoken of as the Laird rams, the British government seized them upon its own responsibility in virtue of the prerogative power of the Crown, and so prevented their departure to make war against the United States.

Sitting on this tribunal as in some sense the representative of Great Britain, I cannot allow these statements to go forth to the world without giving them the most positive and unqualified contradiction. They are wholly uncalled for, as being unnecessary to determine the question whether, in particular instances, Great Britain had been wanting in diligence. They are not only unjust, but in the highest degree ungenerous, (I use the mildest expression I can find,) on an occasion when Great Britain is holding out the hand of friendship and conciliation to America, and though, perhaps, at a heavy sacrifice, is seeking to bury all sense of past grievance by submitting the claims of the United States to peaceful and friendly arbitration. But it is not only that these observations are ungenerous and unjust. There is in this extraordinary series of propositions the most singular confusion of ideas, misrepresentation of facts, and ignorance, both of law and history, which were perhaps ever crowded into the same space, and for my part I cannot help expressing my sense, not only of the gross injustice done to my country, but also of the affront offered to this tribunal by such an attempt to practice on our supposed credulity or ignorance.

It is not true that “the case and counter case of the British government assume and persistently argue that the sole instrument possessed by the British government to enforce the performance of neutral obligations, at the time of the occurrences in question, was a particular act of the British Parliament.”

It is not true that the British government has ever “maintained that Great Britain did not possess constitutional power to prevent mercenary subjects or foreign rebels from dragging her into acts of flagrant violation of neutrality.”

It is not true that “a great state” is here “defending itself against charges of wrong by setting up the plea of its constitutional incompetency and incapacity to discharge the most common-place duties of a sovereign state.”

The transparent fallacy which runs through the whole of this series of declamatory assertions consists in confounding infractions of the municipal law with infractions of neutrality properly so called. Though, by convention between the two governments, the equipping of a ship without arming may have acquired, ex post facto, for the purpose of the present arbitration, the character of a violation of neutrality, no agreement can change the substantive reality of things belonging to the past. Now, at the time the occurrences took place on which the present claims arise, to equip a ship in the way of trade, though intended for the service of a belligerent, was not, as I have already shown, and as Mr. Adams himself, in all fairness, fully admits an offense against international law, and therefore was not a violation of neutrality. While, therefore, in a case of actual violation of neutrality, as by sending forth an armed ship, or a ship immediately about to be armed, for the purpose of immediate warfare, the executive power might, ex proprio vigore, interfere, and if necessary by force, to prevent such a proceeding, the seizure of a vessel unarmed, and not immediately [Page 287] about to go forth, and in respect of which, therefore, no breach of neutrality had taken place, could only be done by virtue of the municipal law as constituted by the act of Parliament. But if a seizure was to be made under the act, it was necessary that proof should be forthcoming to justify and uphold it. Therefore it was true that, as regarded the equipping of ships, the powers of the executive were limited to cases in which proof of a breach of the act was forthcoming. Therefore it was that, in the case of the Florida, the government, thinking there was not sufficient evidence of belligerent purpose, abstained from seizing, and in that of the Alabama delayed the seizure for a time. Therefore it was that, in the later cases of the Alexandra and the rams, the government, being advised that the evidence was sufficient, proceeded to seize. Hence, in discussing the question whether it was at that period, and in the then admitted state of international law, the duty of the government to seize the vessels in question, it is necessary to refer to the foreign-enlistment act to ascertain what were the powers of the government. The distinction is a very obvious one, and one which persons must be, I should think, willfully blind not to see.

The assertion, coming from the quarter from which it proceeds—the government of a great republic, where all executive power, I should have imagined, would be clearly defined by law and exercised in subordination to it—that the British government should have proceeded, independently of and, if necessary, in defiance of the law, to seize ships and arrest subjects as well as foreigners engaged, as it is termed, in acts of foreign war to the prejudice of another government, surprises me, I must say, not a little; but when, as the ground of such an assertion, I am told that “British ministers do not scruple to suspend the privileges of the writ of habeas corpus, whether with or without previous parliamentary authorization, whether in the United Kingdom or in the colonies, on occasion of petty acts of rebellion or revolt; that is, the case of domestic war,” I find myself lost in amazement, and seek in vain to discover what can possibly be meant by so strange a statement. War, whether it be domestic or foreign, is of course war; and, in regard to those who are actually engaged in war, the law of war necessarily supersedes the civil law and civil rights, and would per se, suspend the privileges of the habeas-corpus act. But if it is meant that, even in time of war, the executive could, as regards persons not taking part in the war, or not coming within the operation of martial law, suspend the habeas-corpus act without an act of Parliament, the assertion is equally unfounded and surprising, whether looked at in an historical or in a legal point of view.

But a discovery has been made by those who drew up the United States argument which, I must say, appears to me, as an English lawyer, surpassing strange. It is, that that which could not have been done toward seizing vessels under the foreign enlistment act for want of evidence necessary to support a seizure under that act might have been done with a high hand, by virtue of the prerogative of the Crown; in support of which strange doctrine the following instances are given, in which it is alleged that what was done was done by virtue of the prerogative. Such are:

The Queen’s proclamation of neutrality of May 13, 1861.

The regulations issued by the government of Her Majesty in regard to the reception of cruisers and their prizes in ports of the empire, June 1, 1861, June 2, 1865.

The executive orders to detain the Alabama at Queenstown and Nassau, August 2, 1862.

The executive orders to detain the Florida at Nassau, August 2, 1862.

The executive orders to detain the rams at Liverpool, October 7, 1863.

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The debate and vote in Parliament justifying the detention of the rams by the government “on their own responsibility,” February 23, 1862.

The executive order that “for the future no ship of war belonging to either of the belligerent powers of North America shall be allowed to enter or to remain or to be in any of Her Majesty’s ports for the purpose of being dismantled or sold,” September 8, 1864.

The final executive orders to retain the Shenandoah in port, “by force if necessary,” and to “forcibly seize her upon the high seas,” September and October, 1865.1

In addition to which the final decision of the government with regard to the Tuscaloosa is referred to, as also the opinion of the law officers, advising the seizure of the Alabama at Liverpool, and the rejection, at the instance of the law officers, of the clause proposed to be inserted in the neutrality act of 1870, for prohibiting the entry of vessels, equipped in contravention of the act, into British ports.

While I quite see how likely statements of this sort are to produce an effect on the minds of persons not familiar with the constitutional law of Great Britain, I am at a loss to understand how counsel, familiar with English law, can take upon themselves to make them.

The limits of the royal prerogative are ascertained and defined; they certainly do not include a power to interfere with the liberty, property, or industrial pursuits of the subject, except where such power is expressly conferred by law. In the instances given, with the exception of the Queen’s proclamation, as to the effect of which I have already spoken, and the regulations as to the admission of belligerent vessels to British ports, and the accommodation there to be afforded to them, which are undoubtedly matter of royal prerogative, and the order in respect of the Shenandoah, which was, as will hereafter be seen, a most exceptional case, every instance enumerated was, though in one sense an act of the executive, yet an act done by virtue of power conferred by the foreign-enlistment act, and not by virtue of the prerogative. As an English judge and lawyer, I affirm that, short of their going out as a hostile expedition, in which case force might undoubtedly be used, these vessels could not have been seized under the exercise of prerogative power.

Throughout the statements of the United States a comparison is drawn between the conduct of the United States and that of Great Britain in reference to the maintenance of neutrality. When the British government retorts with instances of American default in this respect, the answer comes that it is Great Britain, not the United States, that is now on its trial. And this is perfectly true; but when the plaintiff seeks to prejudice the defendant in the eye of the judge and of the world, and at the same time to secure favor to himself by holding up his own conduct as righteous and immaculate, whereby to make that of the defendant appear more black, it is but fair that his pretensions should be submitted to the criticism to which he justly exposes himself. Comparison between Great Britain and United States as to observance of neutrality.

The argument of the United States asks at the hands of this tribunal for a rigorous enforcement of the obligations of neutrality against Great Britain, on the ground that, while the latter has been unmindful of its duties as a neutral, the United States have maintained a consistent and unvarying course in the most exemplary fulfilment of those duties. I select one from many passages in which a comparison between the two nations in this respect is invidiously made:

Quails ab incepto talis ad finem. With consistency unwavering, and at whatever hazard of domestic or foreign inconvenience, even if it were friendly powers like France and Great Britain with which we were thus brought into contention, the United [Page 289] States have steadily adhered to principles of international neutrality; and we may well, therefore, demand the observance of those principles, or reparation for their non-observance on the part of Great Britain.1

It becomes, therefore, perfectly legitimate to take—as is done in the British counter-case—a retrospect of the history of American neutrality so vauntingly extolled in the papers before us. It cannot be fair or just that a country in whose ports privateering against the commerce of friendly nations has been openly carried on upon the largest scale, and from whose shores armed expeditions and raids have, in so many instances, gone forth, should seek to enlist the favor of this tribunal in order to swell the damages against Great Britain, by holding itself up as a model of neutral perfection. It is not so much for this purpose, however, that I advert to the history of the past, as it is for that of showing that there is no foundation for the assumed superiority of American laws or institutions in respect of the fulfilment of neutral obligations. The use of a review of American history in this respect will readily be seen.

America undoubtedly has the credit of being the first nation that, by positive legislation, sought to restrain its subjects within the strict limits of neutrality. But those who make this boast as against Great Britain should also remember that it was through the acts of American citizens that such legislation first became necessary. The large and just mind of the greatest of American statesmen saw at once the reproach and the danger arising to his country from her ports being used for the building and equipping of privateers by American citizens, and for sending them out, manned with American crews, commissioned by the French government, to make war on British vessels, while the United States and Great Britain were at peace. For, as I have already observed, this was the mischief against which the legislation of 1794 was directed. Legislation of 1794.

At that time no complaint had arisen of ships of war being built for a belligerent. The complaint, again and again made by the British minister, was of “the practice,” as Mr. Jefferson calls it, “of commissioning, equipping, and manning vessels in American ports, to cruise on any of the belligerent parties.”2 The Government of General Washington was perfectly sincere in its desire to prevent American ports from being used for this purpose; and, had there always been Washingtons at the head of affairs, the well-founded complaints of Spain and Portugal, in 1816 and 1817, might never have arisen. I say “well-founded complaints,” for the few vessels built or equipped in Great Britain during the late civil war bear but a small proportion to the organized and systematic privateering which was carried on from American ports at the period I am referring to.

I first take the case of Spain, as it appears in the correspondence set out in the third volume of the British Appendix. Complaints of Spain.

On the 2d of January, 1817, Don Luis de Onis, minister of Spain to the United States, thus addresses Mr. Monroe, then Secretary of State:

Washington, January 2, 1817.

Sir: The mischiefs resulting from the toleration of the armament of privateers in the ports of this Union, and of bringing into them, with impunity, the plunder made by these privateers on the Spanish trade, for the purpose of distributing it among those merchants who have no scruple in engaging in these piracies, have risen to such a height, that I should be wanting in my duty if I omitted to call your attention again to this very important subject.

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It is notorious that, although the speculative system of fitting out privateers, and putting them under a foreign flag, one disavowed by all nations, for the purpose of destroying the Spanish commerce, has been more or less pursued in all ports of the Union, it is more especially in those of New Orleans and Baltimore, where the greatest violations of the respect due to a friendly nation, and, if I may say so, of that due to themselves, have been committed; whole squadrons of pirates having been fitted out from thence, in violation of the solemn treaty existing between the two nations, and bringing back to them the fruits of their piracies, without being yet checked in these courses, either by the reclamations have made, those of His Majesty’s consuls, or the decisive and judicious orders issued by the President for that purpose.

After setting forth depredations done by three American privateers, he continues:

The consul at New Orleans informs me that the pirate Mitchell, with the vessels under his command, fitted out by different merchants at that port, of whom a Mr. Dupuy is supposed to be the principal, has lately taken several Spanish prizes to Galveston, and that from the proceeds of their sales he has remitted to the said deputies $105,000, which he has deposited in the Bank of Louisiana, after deducting the shares of the captain and crew, amounting, as is supposed, altogether to $200,000. The same consul adds that two of the prizes, one from Campeachy, and the other from Guatemala, were burned, and their crews landed by that savage monster, near Boquilla de Piedras, that they might be, as they actually were, put to death by his great friend, Villapinto, a noted rebel ringleader, who, being pursued by the King’s troops, had retreated to the seashore to make his escape. Of ninety men composing these crews, only nine were saved.

The consul at Norfolk informs me of the arrival there of a privateer schooner from Buenos Ayres, one of several fitted out at Baltimore, and wholly owned there; that from what he has been able to ascertain, among other vessels she plundered a Spanish ship, laden with a cargo of cochineal, indigo, and specie, to the amount of more than $200,000, and proceeded to Baltimore to divide the spoil among the concerned. The said consul, in the discharge of his duty and exercise of his rights, addressed an application to the collector of the customs, copy of which is annexed, and also of the answer of the collector, by which you will perceive that he declines this just reclamation. I could cite innumerable other cases, as well attested as those I have just stated, but I omit them, as their detail would fatigue you, without tending to demonstrate more effectually that they proceed from the non-observance by the officers of this Government of the President’s proclamation, and of the treaty of limits and navigation between the two governments.1

On the 16th of January Don Luis writes again:

I have just received information from the King’s consul at New Orleans of the capture, within sight of the Balize of that port, and at little more than musket-shot from the land, of the Spanish schooner Hipolita, Captain Don Buenaventura March, by the pirate Jupiter, under the Margarita flag. To enable you fully to judge of the atrociousness of this capture, manifestly in violation of the territory of the United States, I have the honor to inclose the declaration of the captain of the said schooner, made before His Majesty’s consul at the aforesaid port, by which it appears he was at anchor in the Pass of the Mississippi, and with pratique from the Balize on board, when he was boarded by the aforesaid pirate, and so inhumanly treated by him as to be left weltering in his blood upon the deck.

It would be superfluous to affect your sensibility by a detail of the multiplied injuries and outrages incessantly sustained by His Majesty’s subjects in these ports; they have already been admitted by the President in his message to Congress, recommending the adoption of such measures as in their wisdom may appear best calculated to repress them, thereby offering to the King, my master, a pledge that His Excellency admits the necessity of indemnifying them as far as possible. It is, however, with great regret that I have to remark on the delay in carrying such urgent measures into execution, and that the injuries complained of have not been prevented by a due observance of the laws of nations, and of the existing treaty, which, by the Constitution, has the force of law in all the courts, in consequence of its ratification by the President and the Senate.2

On the 10th of February Don Luis complains of five more privateers, belonging to ports of the States, as having taken prizes, and being engaged in cruising against Spanish ships.2

On the 26th of March he writes:

I have just been informed that there have entered at Norfolk two pirates, under the [Page 291] flag of Buenos Ayres, the principal of which is called the Independencia del Sud, armed with 16 guns and 150 men; her captain is the well-known pirate called Commodore Chaytor. The second is the schooner Romp, which, to enter into that port, has changed her name to that of Atrevida; she has a crew of 70 men, and appeared to be commanded by a person called Grinnolds. Both vessels were built and fitted out at Baltimore, belong to citizens of that place, and others in this republic, and their crews and captains are of the same. Their entrance into Norfolk has been public, to revictual, and return to their cruise against the subjects of the King, my master; but their principal object is to place in safety the fruits of their piracies, which must be of great importance, if we attend to the information from Havana, which states that they have robbed a single Spanish vessel, coming from Vera Cruz, of $90,000; and to the fact that, on the 21st of the present month, they had deposited $60,000 in the Bank of Norfolk, had landed a number of packages of cochineal, and had declared that they had taken to the amount of $290,000. I am informed that the person called Commodore Chaytor was about to set out for Baltimore, probably to settle accounts, and divide his robberies with the persons interested in the outfit. It is a circumstance worthy of remark, that these two pirates saluted the fort at Norfolk, and that it returned the salute upon the same terms as would have been done with a vessel of war of my sovereign, or of any other nation acknowledged by all independent powers.1

At the same time, another vessel, the Orb, is made the subject of equally strong complaint:

The pirate Orb, fitted out at Baltimore, under the name of the Congress, and flag of Buenos Ayres, commanded by Joseph Almeida, a Portuguese, and a citizen of this republic, has had the audacity to return, and enter the said port, there to deposit a part of his robberies. The piratical character of this vessel is as fully acknowledged, as it is proved that she was armed and manned with people of this country, and of others in the above-mentioned port, and that she had made different prizes in the neighborhood of Cadiz and other ports; since there now is in the port of New York the Spanish polacre, the Leona, captured by her, whose cargo, consisting of $200,000, is concealed, where it is not known; and in the same port of Baltimore there are deposited the proceeds of the Spanish brig Sereno and her cargo, captured by the same vessel. No evidence can, in my judgment, be offered which gives greater certainty to facts so notorious. If by chance anything could be added thereto, it would be the acknowledgment of their atrocities. Nevertheless, I have the mortification to say that neither this notoriety nor the reclamations of His Majesty’s consul at that port have as yet been sufficient to produce those steps which are required by humanity to secure the person of this notorious pirate, to take the declarations of the crew, and to prevent their enjoying their plunder to the prejudice of the lawful owners.2

One cannot help being struck with the similarity of the complaints of the Spaniard with those of which we have lately heard so much. The ships are “pirates;” the facts are “notorious;” “no further evidence can be necessary.”

In like manner we have Mr. Rush answering as though it had been from Downing street:

I have had the honor to receive your two notes, dated the 26th of this month, stating that you have been informed that two armed vessels which have been committing unauthorized depredations upon the commerce of Spain have recently arrived at Norfolk, and that a third, liable to the same charge, has arrived at Baltimore, thus bringing themselves within the reach of those laws against which, in the above and in other ways, it is alleged they have offended.

Conformably to the constant desire of this Government to vindicate the authority of its laws and the faith of its treaties, I have lost no time in writing to the proper officers, both at Norfolk and Baltimore, in order that full inquiry may be made into the allegations contained in your notes, and adequate redress and punishment enforced, should it appear that the laws have been infringed by any of the acts complained of.

I use the present occasion to acknowledge also the receipt of your note of the 14th of this month, which you did me the honor to address to me, communicating information that had reached you of other and like infractions of our laws within the port of Baltimore; in relation to which I have to state that letters were also written to the proper officers in that city, with a view to promote every fit measure of investigation and redress. Should it prove necessary I will have the honor to address you more fully at another time upon the subjects embraced in these several notes. In the mean time I venture to assure myself, that in the readiness with which they have thus far been attended to, you will perceive a spirit of just conciliation on the part of this government, as well as a prompt sensibility to the rights of your sovereign.2

[Page 292]

Don Luis replies as Mr. Adams or Mr. Dudley might have done:

By your note of yesterday I am apprised that the President, on being informed, by the notes to which you have replied, of the audacity with which the pirates armed in this country introduce into it the fruits of their robberies, has been pleased to give suitable orders to the authorities at Norfolk and Baltimore, that having ascertained the facts which I have brought to his knowledge, they should duly proceed according to law against the violators of the laws of this republic. The district attorney for the United States at Baltimore has replied to the King’s consul there, that he has no evidence upon which he can proceed against Captain Almeida; but if a witness should offer, who will depose to the facts referred to, he will proceed to order an embargo to be laid on his vessel. I am perfectly aware that good order, the personal security of individuals, and the prevention of any violence being committed upon them, require that suits should be instituted according to the rules of court; but when a crime is notorious to all, and is doubted by none, when the tranquillity and security of the State, the honor of the nation, and the respect that independent powers owe to each other, are interested in putting a stop to crimes so enormous as those I have had the honor to denounce to you, it appears to me that the magistrates are authorized to collect a summary body of information, to inquire whether the public opinion is doubtful, and if there be ground to institute a suit. The collector of the customs cannot be ignorant that the three vessels, which I have named to you, were built and fitted out at Baltimore; that they were cleared at that custom-house as Americans; that their crews were, at their departure, composed of citizens of this Union, as were their captains; and that the effects which they have landed can only come from Spanish countries. What stronger testimony, if more is wanted, than their own declaration, can be desired to proceed against these pirates?

The ship’s papers, the declarations of the crews, the log-book, are all testimony which can throw light upon the truth or falsehood of the crime alleged, and make it unnecessary to trouble them until it be ascertained that there is ground for proceeding judicially against them.1

Next comes a complaint of the capture of a Spanish brig by the pirate Almeida, commanding the Orb or Congress, with depositions of sailors of the captured vessel.2

These letters, like those of Mr. Adams, are accompanied by others from the local consuls, with copies of correspondence between those functionaries and the collectors of the ports. Thus Don Antonio Villalobos having called on Mr. Mallory, collector of Norfolk, to seize two noted privateers, the Independencia del Sud and the Atrevida, saying that these vessels had been “improving their equipment and considerably augmenting their crew,” Mr. Mallory writes, as Mr. Edwards might have done:

In reply I conceive it proper only to remark, that these vessels have not been unnoticed by me, and that, in my conduct toward them, I shall endeavor, as I have done, to observe that course which my official duties appear to me to have prescribed. In pursuing which, that I may have the aid of every light to guide me which facts can afford, and as the allegations thus made by you, in an official form, must be presumed to be bottomed on positive facts, which have come to your knowledge, you will have the goodness, I trust, to furnish me, with as little delay as possible, with the evidence of their existence in your possession.3

The Spanish Dudley replies:

With regard to the evidence you require I will not hesitate to say that, as the facts I have stated are matter of public notoriety, known to everybody, and I had no reason to suppose that you were ignorant of them, I did not deem it incumbent on me to add any proof to the simple narration of them; and I was confident that, by going on to point out to you the stipulations and laws which are infringed in consequence of those facts, you will think yourself authorized to interfere in the manner requested.

I will assert, sir, as a known fact, that the brig now called Independencia del Sud is the same vessel which was formerly known under the name of the Mammoth privateer, belonging to Baltimore, armed and equipped in that port, from which she sailed under the command of the same James Chaytor, who still commands her; that the very same James Chaytor was necessarily then, and cannot have ceased since to be, a citizen of the United States, is settled and has a family in Baltimore, whence his wife came down a few days ago in the packet Walter Gray, and is now in this town on a visit to her husband; that he has enlisted men in this port, many of whom are not so obscure as [Page 293] not to be generally known. I will mention, as an example, Mr. Young, of Portsmouth, who is now acting as first lieutenant on board the said brig. I will assert as a fact that the Atrevida is the very schooner known before under the name of the Romp, the same that underwent a trial for piracy before the Federal court in this State; that her present commander, Captain Grinnolds, is a native of one of the neighboring towns, and very well known in this place; and finally, that this vessel has been at one of the wharves altering her copper, which I call an improvement in her equipment.

If these public facts, falling within the knowledge of every individual, require more proof than the public notoriety of them, I must request to be informed as to the nature of that proof, and also whether you are not warranted to act upon just grounds of suspicion without that positive evidence which is only necessary before a court of justice.1

The collector did not look upon the facts as sufficient to warrant any action on his part.

The correspondence goes on in much the same strain. On the 19th of September, Don Luis writes to Mr. J. Q. Adams:

A complaint having been laid before His Catholic Majesty’s government by a part of the crew of the Spanish polacca Santa Maria, captured on her passage from Havana to Cadiz by the pirate called the Patriota Mexicano, commanded by José Guillermo Estefanos, manned with citizens of these States, and covered by their flag, under which he chased and brought to the said polacca, until, having ascertained her capture, he hoisted the insurgent flag, I have received the commands of the King my master to request of the President, through your medium, the most decisive measures for putting an end to the abuses practiced in the ports of this Union, by arming privateers to cruise against the Spanish trade, thus prostituting the flag of the United States by these predatory acts, and trampling under foot, with an unparalleled audacity, national rights and the existing treaty between Spain and these States.

I therefore now renew those urgent reclamations which, on former occasions, I have submitted to the President, through your department, on this important point; and I trust that the numerous instances of these abuses and horrible depredations will induce his excellency to adopt energetic measures to restrain these excesses, which so deeply compromit the neutrality of the United States in the eyes of all nations, and are wholly repugnant to the friendship and good understanding happily subsisting between them and His Catholic Majesty.

In a letter of the 2d of November, he writes:

It is very disagreeable to me to have to repeat to you, sir, what, unfortunately, I have been several times under the necessity of sumbitting to the President, through the medium of your predecessors, namely, that the act of Congress of the 3d of March, 1817, has in no wise lessened the abuses by which the laws are evaded, and which render entirely illusory the laudable purposes for which they were enacted. From the greater part of the ports of these States there frequently sail a considerable number of vessels with the premeditated intention of attacking the Spanish commerce, which carry their armament concealed in the hold. It rarely happens that they can be arrested, inasmuch as the collectors of the customs say that they have not at their disposition the naval force necessary to effect it; on the other hand, armed vessels, under the flag of the insurgents, enter into the ports of the Union, and not only supply themselves with all necessaries, but also considerably increase the means they already have of destroying the trade of Spain, as has recently been the case at New York, whereby (the so-called) privateers of His Majesty’s revolted provinces, which are in reality nothing more than pirates, manned by the scum of all countries, enjoy greater privileges than the vessels of independent powers.2

The same state of things continues in 1818. On the 9th of June, Don Luis de Onis informs Mr. Adams:

At my passage through Baltimore, on my way to Philadelphia, it was represented to me by His Catholic Majesty’s consul for the State of Maryland that there were in that port four pirates, or privateers, if you please so to call them, namely, the Independencia del Sud, Captain Grinnold; the Puerredon, alias Mangore, Captain Barnes; the Republicano, Captain Chase; and the schooner Alerta, Captain Chaytor. These pirates, denominated privateers, or vessels of war, of the pretended government of Buenos Ayres, have entered the port of Baltimore for the purpose of dividing the spoil resulting from their depredations on Spanish commerce, and of refitting and arming to renew these excesses on the high seas. It is a matter of universal notoriety at Baltimore that three of the above-named vessels were fitted out there, and the fourth is a schooner captured by them from Spanish subjects; it is no less so that their commanders and the greater [Page 294] part of the crews are American citizens, and that there is scarcely a single individual belonging to Buenos Ayres to be found among them. * * *

I am aware, sir, that you will tell me that the courts are open to the recognizance of claims of this nature, and ready to apply the law to such cases as occur and are supported by suitable testimony; but I am under the necessity of declaring to you that it is in vain to seek such testimony, however clear it maybe to everybody. I have demonstrated, in the most pointed manner, to His Majesty’s consul the propriety of directing his attention to points of so much importance; but he has proved to me that a great portion of the commercial people of Baltimore being interested in the cases which produce my present reclamations, no one is willing to come forward and offer testimony against what is termed the general interest; and thus the wise measures of government are eluded, justice is paralyzed, and the suits procrastinated and deferred from court to court, with a view to deprive His Majesty’s subjects of that justice which they have an undoubted right to seek in the tribunals on all their claims.1

Having stated that the vessels, in addition to the object of “conveying to the parties interested at Baltimore the proceeds of their spoliations on the Spanish commerce, and, among others, that of the Philippine Company’s ship Triton, to the amount of $1,500,000, captured by the pirate Independencia del Sud, and carried to Buenos Ayres to be sold there, have a project in fitting out anew and of attacking some possessions of the King, my master, on this continent, to which they may more easily send their prizes; that these same privateers have brought in two Spanish prizes, which are at this moment in the port of Baltimore, one of them a vessel belonging to the royal navy,” he continues:

I, therefore, demand, in the name of the King, my master, the restoration of those prizes, as having been made by American citizens, and vessels fitted out in this country, in violation of the existing treaty between the two powers, and that the sailing of the said privateers be stopped, and they compelled to give security for the result of an expedition, of which, without knowing positively that they intend to execute it, I have the strongest grounds for presuming they mean to do.2

The correspondence closes with a letter of Don Luis to Mr. Adams of the 16th of November, 1818, in which he thus writes:

Whatever may be the forecast, wisdom, and justice conspicuous in the laws of the United States, it is universally notorious that a system of pillage and aggression has been organized in several parts of the Union against the vessels and property of the Spanish nation; and it is equally so that all the legal suits hitherto instituted by His Catholic Majesty’s consuls in the courts of their respective districts for its prevention, or the recovery of the property, when brought into this country, have been, and still are, completely unavailing. The artifices and evasions by means of which the letter of the law has on these occasions been constantly eluded, are sufficiently known, and even the combination of interests in persons who are well known, among whom are some holding public offices. With a view to afford you and the President more complete demonstration of the abuses, aggressions, and piracies alluded to, I inclose you correct lists, extracted from authentic documents deposited in the archives of this legation, exhibiting the number of privateers or pirates fitted out in the United States against Spain, and of the prizes brought by them into the ports of the Union, as well as of those sent to other ports, together with the result of the claims made by the Spanish consuls in the courts of this country. Among them you will find the case of two armed ships, the Horazio and Curiazo, built at New York, and detained by His Majesty’s consul there on the ground of their having on board thirty pieces of cannon concealed, with their carriages, and a crew of 160 men. On which occasion it was pretended that it could not be proved that these guns were not an article of commerce, and they finally put to sea without them, the extraordinary number of officers and crew passing for passengers. The number of privateers or pirates fitted out and protected in the ports of this republic, as well as of the Spanish prizes made by them, far exceeds that contained in the within list, but I only lay before your Government those of which I have certain and satisfactory proofs. The right of Spain to an adequate indemnity for all the spoliations committed by these privateers or pirates on the Crown and subjects of His Catholic Majesty is undeniable; but I now submit it to your Government only to point out the extreme necessity of putting an end to these continued acts of hostility and depredation, and of cutting short these enormous and flagrant abuses and evils, by the adoption of such effectual precautions and remedies as will put it out of the power of cupidity or ingenuity to defeat or elude them.3

[Page 295]

The letter is accompanied by a list of thirty privateers belonging to the ports of New Orleans, Charleston, Philadelphia, Baltimore, and New York, with a formidable list of prizes made by them.

During this time similar complaints had been constantly addressed to the United States Government, on behalf of that of Portugal, by the minister of the latter power, the Chevalier Correa de Serra. Portugal being at that time involved in war with the Artigas government, privateers were in like manner fitted out and manned by American citizens against the commerce of Portugal. Complaints of Portugal.

On the 8th of March, 1818, the Portugese minister writes to Mr. Adams that he is ordered to lay before the eyes of the United States Government the case of three Portugese ships, (of which he gives the details,) “captured by privateers fitted in the United States, manned by American crews, and commanded by American captains, though under insurgent colors.” He incloses an extract from the documents proving these facts, and offers to place the documents themselves at the disposal of Mr. Adams.1

Mr. Adams, setting, as it were, an example to future British foreign secretaries, answers:

The Government of the United States having used all the means in its power to prevent the fitting out and arming of vessels in their ports to cruise against any nation with whom they are at peace, and having faithfully carried into execution the laws enacted to preserve inviolate the neutral and pacific obligations of this Union, cannot consider itself bound to indemnify individual foreigners for losses by captures, over which the United States have neither control nor jurisdiction. For such events no nation can in principle, nor does in practice, hold itself responsible. A decisive reason for this, if there were no other, is the inability to provide a tribunal before which the facts can be proved.

The documents to which you refer must, of course, be ex-parte statements, which in Portugal or in Brazil, as well as in this country, could only serve as a foundation for actions in damages, or for the prosecution and trial of the persons supposed to have committed the depredations and outrages alleged in them. Should the parties come within the jurisdiction of the United States, there are courts of admiralty competent to ascertain the facts upon litigation between them, to punish the outrages which may he duly proved, and to restore the property to its rightful owners, should it also be brought within our jurisdiction and found upon judicial inquiry to have been taken in the manner represented by your letter. By the universal laws of nations the obligations of the American Government extend no further.2

Again, on the 15th of October, the Chevalier de Serra writes:

Washington, October 15, 1818.

Sir: This very moment I perceive the intelligence that a ship is fitting in the Patuxent to cruise against the Portuguese commerce, and the ship so fitting is no other than the Portuguese fine brig Soam Sexto, taken some weeks before by the Baltimorean privateer Fortuna, sent into Beaufort, North Carolina, and the goods shipped for New York and Baltimore where they are under reclamation. Captain Taylor left Baltimore on Sunday to take charge of her, and the night before the last a great deal of stores left Baltimore for this ship.

You know perfectly to what extent the supreme Executive can exert his power to prevent such a breach of all moral and international law; and I dare not doubt that it will be exerted, persuaded as I am of the honorable feelings of this Government.

I am, &c.,


P. S.—There exist1 now in Baltimore many persons who are able to identify the ship.3

The reply comes—that the vessel shall be seized? No.

Washington, October 23, 1818.

Sir: I have had the honor of receiving, and have laid before the President of the United States, your letter of the 15th instant. I am directed by him to inform you [Page 296] that, if you will furnish a list of the names of the persons chargeable with a violation of the laws of the United States, in fitting out and arming a vessel within the United States for the purpose of cruising against the subjects of your sovereign, and of the witnesses by whose testimony the charge can be substantiated, directions will be given to the attorney of the United States for the district of Maryland to institute suits against the persons complained of, in the proper court competent to their trial.

I pray you, &c.,


Yet there can be no doubt that, during this time, the United States Government were honestly sincere in their desire to put down the scandal occasioned by this wholesale system of privateering. Several vessels were seized, of which some were actually condemned, others released only on giving security; but the practice continued, vessels being enabled to elude all the vigilance and activity of the officials. As late as the 23d of November, 1819, the Chevalier de Serra writes in a disconsolate strain, representing the evil as increasing rather than diminishing:

Philadelphia, November 23, 1819.

. Sir: I have the honor of submitting the following facts and considerations:

During more than two years I have been obliged by my duty to oppose the systematic and organized depredations daily committed on the property of Portuguese subjects by people living in the United States and with ships fitted in ports of the Union, to the ruin of the commerce of Portugal. I do justice to, and am grateful for, the proceedings of the Executive, in order to put a stop to these depredations, but the evil is rather increasing. I can present to you, if required, a list of fifty Portuguese ships, almost all richly laden, some of them East Indiamen, which have been taken by these people during the period of full peace. This is not the whole loss we have sustained, this list comprehending only those captures of which I have received official complaints. The victims have been many more, besides violations of territory by landing and plundering ashore with shocking circumstances.

One city alone on this coast has armed twenty-six ships which prey on our vitals, and a week ago three armed ships of this nature were in that port waiting for a favorable occasion of sailing for a cruise. Certainly, the people who commit these excesses are not the United States, but nevertheless they live in the United States and employ against us the resources which this situation allows them. It is impossible to view them otherwise than a wide-extended and powerful tribe of infidels, worse still than those of North Africa. The North Africans make prizes with leave of their government according to their laws and after a declaration of war; but these worse infidels of whom I speak, make prizes from nations friendly to the United States against the will of the Government of the United States, and in spite of the laws of the United States. They are more powerful than the African infidels, because the whole coast of Barbary does not possess such a strength of privateers. They are numerous and widely scattered, not only at sea for action, but ashore likewise to keep their ground against the obvious and plain sense of your laws, since most generally, wherever they have been called to the law, they have found abettors who have helped them to invade the laws by formalities.

I shall not tire you with the numerous instances of these facts, but it may be easily conceived how I am heartily sick of receiving frequent communications of Portuguese-property stolen, of delinquents inconceivably acquitted, letters from Portuguese merchants deeply injured in their fortunes, and seeing me (as often has been the case) oppressed by prayers for bread from Portuguese sailors thrown penniless on the shores after their ships had been captured.

The Executive having honorably exerted the powers with which your Constitution invests him, and the evil he wished to stop being found too refractory, it would be mere and fruitless importunity if I continued with individual complaints except by positive orders. This Government is the only proper judge of what constitutional dispositions or arrangements may be established for the enforcement of the laws, and he alone has the means of obtaining them, which are constitutionally shut to any foreign minister; I trust in the wisdom and justice of this Government that he will find the proper means of putting an end to this monstrous infidel conspiracy, so heterogeneous to the very nature of the United States.

Before such convenient means are established, the efforts of a Portuguese minister on this subject (the only one of importance at present between the two nations) are of little profit to the interests of his sovereign. Relying confidently on the successful efforts of the Government to bring forth such a desirable order of things, I choose this [Page 297] moment to pay a visit to Brazil, where I am authorized by His Majesty to go. My age and my private affairs do not allow much delay in making use of this permission, and I intend to profit by the first proper occasion that may offer. The arrangements for my departure will require my personal exertions, and it will not be consequently in my power to make an early or long residence in Washington this winter. As soon as I shall be able I will present myself there to pay my due obeisance to the President of the United States, and my respects to you.

Accept, &c.,


The United States Government took the very proper step of getting an act passed prohibiting the entrance of privateers into certain ports of the United States; but this does not appear to have had the effect of stopping the evil; privateering appears, if we may judge by the continued complaints, to have gone on as before.

On the 8th of June, 1820, the Chevalier de Serra calls attention to a ship, taken by one of the privateers, having been sold by judicial authority “in Baltimore, under the hammer, to Captain Chase, a notorious privateersman, standing under an indictment for piracy.”

He adds:

It is to be immediately fitted as a privateer (and a formidable one it will prove, by its size and strength, which are those of a good frigate) to cruise against the Portuguese Indiamen, and the command of it will be given, as it is assured, to the notorious Captain Taylor.

I have not the least doubt that the supreme Executive of this nation has both the power and the will of putting a stop to this hostile armament, particularly when, as in this case, he has timely information which will be successively put under his eyes, at the very stage of this inimical attempt on the Portuguese commerce.2

Again, on the 16th of July:

Wilmington, July 16, 1820.

Sir: I am ordered by my sovereign to lay before this Government the names and value of nineteen Portuguese ships and their cargoes, taken by private armed ships, fitted in the ports of the Union by citizens of these States. The values have been ascertained by the proper courts of justice, and revised with all care and attention by the royal board of commerce. In proportion as the value of the other ships stolen is in the same manner ascertained, their names, and the amount of losses, will be laid before this Government.3

The value of the nineteen ships is stated at $616,158.

In this letter the chevalier proposes the appointment of commissioners to “confer and agree upon what reason and justice demand.” The proposal was declined.

The reply was:

The appointment of commissioners to confer and agree with the ministers of Her Most Faithful Majesty upon the subject to which your letter refers, would not be consistent with the Constitution of the United States nor with any practice usual among civilized nations. The judicial power of the United States is, by their Constitution, vested in their Supreme Court, and in tribunals subordinate to the same. The judges of these tribunals are amenable to their country by impeachment, and if any Portuguese subject has suffered wrong by any act of any citizen of the United States within their jurisdiction, it is before these tribunals that the remedy is to be sought and obtained. For any acts of citizens of the United States committed out of their jurisdiction and beyond their control, the Government of the United States is not responsible.4

The proposal was renewed in 1822, but again declined. The Government had done all it could do. “Every attention, compatible with the rights of citizens of the United States and with the laws of nations, had been paid by the Government to the complaints of M. Correa of captures made by privateers fitted out within the United States and partly manned [Page 298] by their citizens.” “The laws for securing the faithful performance of the duties of neutrality had been revised and enforced; decrees of restitution had been pronounced by the judicial tribunals in all cases of Portuguese captured vessels brought within the jurisdiction of the United States; and all the measures within the competency of the Executive had been taken by that department of the Government for repressing the fitting out of privateers from United States ports, and the enlistment of citizens in them.”

Mr. Adams adds, in a letter to the United States minister at Lisbon: “These measures, however, do not appear to have been altogether satisfactory to the Portuguese government, doubtless because they are not sufficiently understood by them.”1 The Portuguese minister thought that the short and simple process would have been to seize the ships, by virtue of the executive power; but the Mr. Adams of that day thought of “the rights of American citizens and the law of nations.”

The pleadings of the United States say little or nothing in answer to the facts relating to Portugal. As to those relating to Spain, they say in a somewhat off-hand way, “What then? if we did injury to Spain we repaired it.”2 The British Counter Case answers that the reparation consisted in setting off, in a subsequent treaty between the two nations, some unascertained claims against the serious claims for actual losses sustained by the Spanish commerce through the acts of American privateers.3 I agree with the United States that Spain having consented to be satisfied with this reparation, nothing more is to be said on that head. Nor do I think that matters which happened half a century ago can with any fairness be brought forward to the prejudice of the United States in answer to the present claim, not even though provocation might have been given by the assertion of American superiority so ostentatiously obtruded in the pleadings of the United States. But these instances of infractions of maritime neutrality on so large a scale are important for a very different purpose; they show the difficulty of repressing offenses of this sort; they show that the asserted superiority of the American law is an empty boast; and they entirely bear out my view as to the alleged power of the President to make up for any deficiency in the ordinary law as administered by the courts. In the long series of complaints made by the representatives of Spain and Portugal as to the thirty privateers, of the issuing of which from the ports of the United States Don Luis de Onis thus incessantly complains, or as to the twenty-six which the Chevalier de Serra mournfully enumerates as capturing Portuguese vessels, no instance, so far as I am aware, occurs in which, when the Government officials alleged that the evidence was insufficient, the President intervened, by virtue of the discretionary power said to be vested in him to arrest a vessel.

The temporary act passed by the American Congress in 1838, on the occasion of the Canadian insurrection, has been more than once referred to in the course of the present controversy.4 The circumstances under which that act was passed are stated in the proclamation of President Van Buren, of the 5th of January, 1838, in which he said that information had “just been received that, notwithstanding the proclamation of the governors of the States of New York and Vermont, exhorting their citizens to refrain from any unlawful acts within the territory of the United States, and notwithstanding the presence [Page 299] of the civil officers of the United States, * * * arms and munitions of war and other supplies have been procured by the (Canadian) insurgents in the United States; that a military force, consisting in part, at least, of citizens of the United States, had been actually organized, had congregated at Navy Island, and were still in arms, under the command of a citizen of the United States, and that they were constantly receiving accessions and aid.” American act of 1838.

As Congress sits from January to March, the necessary law which the circumstances called for might have been passed at once, but it was delayed till March 10, 1838, and does not appear to have been approved by the President until the 20th of April; even then, it seems either to have been inefficacious or feebly enforced, as on the 21st of November, the President issued another proclamation:

Whereas there is too much reason to believe that citizens of the United States, in disregard of the solemn warning heretofore given to them by the proclamation Issued by the Executive of the General Government, and by some of the governors of the States, have combined to disturb the peace of a neighboring and friendly nation; and whereas information has been given to me, derived from official and other sources, that many citizens in different parts of the United States are associated or associating for the same purpose; and whereas disturbances have actually broken out anew in different parts of the two Canadas; and whereas a hostile invasion has been made by citizens of the United States, in conjunction with Canadians and others, who, after forcibly seizing upon the property of their peaceful neighbors, for the purpose of effecting their unlawful designs, are now in arms against the authorities of Canada, in perfect disregard of their own obligations as American citizens, and of the obligations of the Government of their country to foreign nations.

It may here be remarked, in passing, that, while open assistance was thus afforded from the United States to the Canadian insurgents, in 1838, during the whole period of the civil war, the confederates never once succeeded in directing any hostile operations of importance from Canada against the exposed American frontier; and that in October, 1864, when a few adventurers made the attack on the bank at St. Albans, (a town near the Vermont boundary,) prompt measures were taken to prevent any such attempt being renewed from the Canadian side, and an act was passed by the Canadian Parliament when it met in February, 1865, quite as stringent in its provisions as the act of Congress of 1838.

Lopez, a Spanish adventurer, had formed a plan in 1819 for an attack on Cuba, with the object of annexing it to the United States. The idea of Cuban annexation was then in great favor with an important political party, who hoped to secure the entrance of a slave-holding State into the Union, and thus counterbalance the growing power of the Northern or free States. Lopez accordingly met with much popular support. Expedition of Lopez against Cuba.

On the 11th August, 1819, the President of the United States issued a proclamation stating that “there was reason to believe that an armed expedition was about to be fitted out in the United States, with an intention to invade the island of Cuba or some of the provinces of Mexico,” and that “the best information which the Executive had been able to obtain, pointed to the island of Cuba as the object of this expedition;” and calling upon “every officer of this Government, civil or military, to use all efforts in his power to arrest, for trial and punishment, every such offender against the laws providing for the performance of our sacred obligations to friendly powers.”

On the 7th May, 1850, Lopez left New Orleans in a steamer with about five hundred men, accompanied by two other vessels, and on the 17th landed at Cardenas, a small town on the northwest side of the island, and occupied the town; but troops arriving shortly afterward [Page 300] from Havana, be was compelled to re-embark, and escaped to the United States.1

It appears, from the appendix to the American Counter Case,2 that on the 25th of May orders were given for the arrest of Lopez; but the appendix is silent as to the result, which was that no delay being granted by the district judge to procure evidence against him, he was discharged amid the cheers of a large crowd.

The Spanish authorities liberated forty-two of Lopez’s band, whom they had taken prisoners, and they were taken back to the United States in the United States ship Albany. A further attempt seems to have been made to bring Lopez and his followers to justice, as on the 21st of July the grand jury at New Orleans found a true bill against him and fifteen others for violating the act of 1818; but the American Government failed in making out their case, and finally abandoned the prosecution.3

On the 25th of April, 1851, the President issued another proclamation, stating that “there was reason to believe that a military expedition was about to be fitted out in the United States, with intention to invade the island of Cuba,” and warning all persons of the penalties they would incur by joining in it. The President concluded by “calling upon every officer of this Government, civil and military, to use all efforts in his power, to arrest for trial and punishment every such offender against the laws of the country.”4

Nevertheless, in the following August, Lopez started on a fresh expedition, of which the following details are taken from the President’s message to Congress of December 2, 1851:

Lopez left New Orleans for Cuba on the 3d of August, in the steamer Pampero with four hundred men, “with evident intentions to make war upon the authorities of the island.” The steamer left stealthily, and without a clearance, and, after touching at Key West, proceeded to the coast of Cuba. Lopez and his baud were soon overpowered by the Spanish troops, and Lopez himself was publicly executed at Havana.

The President adds:

What gives a peculiar criminality to this invasion of Cuba is, that under the lead of Spanish subjects, and with the aid of citizens of the United States, it had its origin, with many, in motives of cupidity. Money was advanced by individuals, probably in considerable amounts, to purchase Cuban bonds, as they have been called, issued by Lopez, sold, doubtless, at a very large discount, and for the payment of which the public lands and public property of Cuba, of whatever kind, and the fiscal resources of the people and government of that island, from whatever source to be derived, were pledged, as well as the good faith of the government expected to be established. All these means of payment, it is evident, were only to be obtained by a process of bloodshed, war, and revolution. None will deny that those who set on foot military expeditions against foreign states by means like these are far more culpable than the ignorant and the necessitous whom they induce to go forth as the ostensible parties in the proceeding. Those originators of the invasion of Cuba seem to have determined, with coolness and system, upon an undertaking which should disagree their country, violate its laws, and put to hazard the lives of ill-informed and deluded men. You will consider whether further legislation be necessary to prevent the perpetration of such offenses in future.5

No such further legislation was, however, carried out; though it was not long before the need for it was again put to the test.

This time the scene of operations was on the Pacific coast, and the [Page 301] leader chosen to conduct it was the well-known Walker; the plan being to gain possession of the Mexican possessions in Lower California. Walker’s expedition against Mexico and Central America.

The attempt was made in October, 1853, by an expedition from San Francisco. The invaders seized the town of La Paz, killed seven of its defenders, and wounded others, and committed various excesses. They were re-enforced by another expedition, which sailed in the Anita from San Francisco, in December, but they were eventually driven out of the country.

This expedition seems to have given rise to a new name, that of “filibusters,” which has since been used to designate those who engage in outrages of this description, having their origin in America.

Filibustering became a sort of profession; and, under the name of “transit” and “emigration” companies, schemes were next openly planned for attacking Central America.

Walker sailed for San Francisco on the 4th of May, 1855, arrived at Realejo on the 15th of June, and assumed the title of president of Nicaragua, in which capacity he was recognized by the United States representative. Having been surrounded at Rivas by the native forces in May, 1857, through the mediation of the commander of the United States ship of war Saint Mary’s, he was allowed to surrender unmolested, and to be conveyed away on board that vessel with the remnant of his followers.

On returning to the United States he organized a fresh expedition, this time at New Orleans. The attention of the authorities was called to it, and a circular was issued on the 18th of September, 1857, which states that “there is reason to believe that lawless persons are now engaged within the limits of the United States, in setting on foot and preparing the means for military expeditions, to be carried on against the territories of Mexico, Nicaragua, and Costa Rica,” after which it proceeds to call upon the district attorneys and marshals “to use all due diligence, and to avail” themselves “of all legitimate means at” their “command” to enforce the provisions of the act of 1818.

In October, Lord Napier, Her Majesty’s minister at Washington, had warned the American Secretary of State that two thousand men had been enrolled, arms purchased, £250,000 subscribed, and that shipping-was being hired.

On the 10th of November, Walker was arrested and was held to bail in $2,000; but on the very next day he embarked with three hundred unarmed followers from New Orleans for Mobile Bay, where he was joined by fresh recruits in another vessel, the Fashion, in which he sailed for Nicaragua. Some of his band occupied Fort Castillo. He was himself, with the others, detained by the United States Commodore Paulding in the San Juan River and taken to Aspinwall, whence he returned to the United States.1

The counsel of the United States have taken credit for their Government for this proceeding on the part of the commodore. They say, “when wrong-doers manifested obstinate persistence of wrong, the military and naval officers of character and discretion, like General Scott, Admiral Paulding, and General Meade, were employed to apply to such persons the only method of prevention applicable to the case, namely, force, to maintain the domestic order and foreign peace of the Government.”

As a matter of fact, however, the proceedings of the commodore were at the time justly censured as having been in excess of his authority.

[Page 302]

The President, in his message to Congress of the 7th of January, 1858,1 uses this language:

In capturing General Walker and his command after they had lauded on the soil of Nicaragua, Commodore Paulding has, in my opinion, committed a grave error. * * * The error of this gallant officer consists in exceeding his instructions and landing his sailors and marines in Nicaragua, whether with or without her consent, for the purpose of making war upon any military force whatever which he might find in the country, no matter from whence they came. * * * Under these circumstances, when Marshal Rynders presented himself at the State Department on the 29th ultimo with General Walker in custody, the Secretary informed him “that the Executive Department of the Government did not recognize General Walker as a prisoner; that it had no directions to give concerning him, and that it is only through the action of the judiciary that he could be lawfully held in custody to answer any charges that might be brought against him.”

The protest of the Nicaraguan and Costa Rican governments will be found in the correspondence presented to Parliament respecting Central America, together with a description by Lord Napier of the grievous injury inflicted by the filibusters upon those countries. General Cass replied, on behalf of the United States Government—

That unlawful warlike enterprises have been carried on from the United States, composed of persons from different countries, against the territory of Nicaragua, is not to be denied. But during the whole progress of these illegal efforts the Government of this country has faithfully performed the duty imposed upon it by the laws, as well through public proclamations against such enterprises as by giving the necessary directions to the proper officers to prevent their organization and departure, as by invoking the action of the judicial tribunals, and also by the employment of its naval force.

He, at the same time, “denied that a fresh invasion was preparing.” This was on the 25th of July. In October President Buchanan found it necessary to issue a proclamation, containing the following passages, which show that General Cass’ information was far from correct, or that the Government officials, from whose reports he had gained it, must have been singularly blind to what was taking place:

Whereas information has reached me, from sources which I cannot disregard, that certain persons, in violation of the neutrality laws of the United States, are making a third attempt to set on foot a military expedition within their territory against Nicaragua, a foreign state, with which they are at peace. In order to raise money for equipping and maintaining this expedition, persons connected therewith, as I have reason to believe, have issued and sold bonds and other contracts pledging the public lands of Nicaragua and the transit route through its territory as a security for their redemption and fulfillment.

The hostile design of this expedition is rendered manifest by the fact that these bonds and contracts can be of no possible value to their holders unless the present government of Nicaragua shall be overthrown by force.

The leaders of former illegal expeditions of the same character have openly expressed their intention to renew hostilities against Nicaragua. One of them, who has already been twice expelled from Nicaragua, has invited, through the public newspapers, American citizens to emigrate to that republic, and has designated Mobile as the place of rendezvous and departure, and San Juan del Norte as the port to which they are bound. This person, who has announced his allegiance to the United States, and claims to be president of Nicaragua, has given notice to the collector of the port of Mobile that two or three hundred of these emigrants will be prepared to embark from that port about the middle of November.

Two months afterward, in December, 1858, Walker’s filibusters actually embarked at Mobile in the sailing-schooner Susan, without a clearance, on the pretense of being bound on a coasting voyage. An unsuccessful attempt was made by the revenue-cutter to stop them, but was resisted, and the Susan was joined unmolested by the Fashion and the Washington with military stores.

The expedition afterward broke down from the Susan being wrecked. Walker and his band then proceeded, in March, 1859, to California, whence they were said to have intended to make a descent on Punta [Page 303] Arenas; but this attempt was not carried into execution, and Walker returned to Louisiana.

In November, 1859, he, for the third time, eluded the Mobile authorities, and set sail once more from that port in his old vessel the Fashion. The Fashion put back from want of stores, and some of the persons concerned in the expedition were arrested; but there is no report of their having been punished. He started again in June, 1860, in the John A. Taylor; was met off Ruatan by another vessel with arms, and effected a landing on the Central American coast. His career was brought to a close by his being shot at Truxillo in September, 1860.1

The British Counter Case gives a short account of the various Irish American societies which preceded the Fenian brotherhood in the United States. Fenian raids.

This “American institution,” as the Fenians called it, declared itself to be “virtually at war” with England, at a meeting held at Cincinnati in January, 1865. Fenian bonds were issued, and soon afterward the following extraordinary spectacle was presented:

The head-center, as he was previously called, of the brotherhood was styled president of the Irish Republic; the executive council entitled themselves “senators” with a president; a house was hired at a rental of $1,200; secretaries of the treasury, of war, &c., were appointed; and the Irish Republic was declared to be founded at New York.2

Menaces of invading Canada were held out at numerous public meetings, and were made good by a Fenian raid, on the 1st of June, 1866, from Buffalo against Fort Colborne, in Canada. This was speedily repulsed and sixty-five prisoners were taken, while the remainder of the Fenians recrossed the river into the United States, where they were arrested to the number of three hundred and seventy-five by the American authorities, and their arms were taken from them. The subsequent events are thus narrated in the British Counter Case, and the statement has not been contradicted:

The stores of arms at Buffalo, Ogdensburgh, and Saint Albans were also seized by the United States district marshals. On the 5th of June, the arrest of the other Fenian leaders was ordered; and on the 6th the President issued a proclamation, stating that it had become known to him that certain evil-disposed persons had begun to set on foot, and had provided and prepared, and were still engaged in providing and preparing means for a military expedition and enterprise, which expedition and enterprise was to be carried on from the territory and jurisdiction of the United States against British territory; and authorizing the United States military forces and militia to be employed “to arrest and prevent the setting on foot and carrying on the expedition and enterprise aforesaid.”

On the same day on which this proclamation was signed, the Fenian prisoners at Buffalo were released on their own recognizances; and, on the 7th, O’Neill and two other principal leaders were also released on bail.

Another band of Fenians made a demonstration near Saint Albans, but retreated immediately on the appearance of a Canadian regiment.

Several arrests were made at Saint Albans and elsewhere; and Roberts, the president of the Fenian senate, and chief instigator of the raid, was taken into custody at New York. His examination commenced on the 11th; on the 12th he was released on parole; and the district attorney eventually abandoned the prosecution from want of evidence, with the intention of preferring an indictment before the grand jury.

On the 23d July the House of Representatives of the United States passed the following resolutions:

Resolved, That the House of Representatives respectfully request the President of the United States to urge upon the Canadian authorities, and also the British government, the release of the Fenian prisoners recently captured in Canada.

Resolved, That this House respectfully request the President to cause the prosecutions, [Page 304] instituted in the United States courts against the Fenians to be discontinued, if compatible with the public interests.”

In pursuance of the second of these resolutions, the Attorney-General instructed the district attorney at Buffalo to abandon the Fenian prosecutions there, and they were abandoned accordingly.

The prosecution was also withdrawn in the cases of Sweeney, Spear, McMahon, and the other leaders of the Vermont-frontier demonstration, who had been arrested, but released on bonds of $5,000 after a day’s detention; and the intended indictment of Roberts was dropped as a matter of course.

In October the Government decided to return some of the arms which had been taken from the Fenians.1

A bond was on this occasion taken from the editor of the “Buffalo Fenian Volunteer” and another Fenian sympathizer, that the arms should not be used in violation of the neutrality laws.

The remainder of the arms taken at Buffalo and Ogdensburgh were returned in the following year.

During 1867 the Fenians were occupied in promoting disturbances and outrages in England and Ireland.

In 1868 they obtained from the United States governor the return of thirteen hundred muskets seized at Saint Albans. In November, 1868, the Fenian leader O’Neill marched in review through Philadelphia, with three regiments in Fenian uniform, numbering, as reported, three thousand men.

Nothing, however, happened till 1870, when the second Fenian raid upon Canada took place from Saint Albans and Malone. Repulsed at both places the Fenians sought refuge, as usual, across the frontier.

Several of the leaders were arrested and a quantity of arms taken possession of by the United States authorities. Altogether thirteen tons of arms are said to have been seized at the two raids, and conveyed to United States arsenals; besides these a field-piece and numbers of rifles were abandoned on the scenes of action. On the 12th of July the trials of the Malone raiders took place; two were condemned to two years’ imprisonment and a fine of $10, and one to one year’s imprisonment and a similar fine. On the 29th of July the Saint Albans raiders were tried: O’Neill was sentenced to two years’ imprisonment and a fine of $10; another of the leaders to nine months’ imprisonment and a fine of $5; and another to six months’ imprisonment and a fine of $1. The proceedings against two others were postponed. On the 12th of October, O’Neill and his companions received an unconditional pardon from the President.

On the day on which the pardon was granted the President published a proclamation, warning evil-disposed persons that the law forbidding hostile expeditions against friendly states would for the future be rigorously enforced:

Whereas divers evil-disposed persons have, at sundry times, within the territory or jurisdiction of the United States begun, or set on foot, or provided, or prepared the means for military expeditions, or enterprises to be carried on thence, against the territories or dominions of powers with whom the United States are at peace, by organizing bodies, pretending to have powers of government over portions of the territories, or dominions, of powers with whom the United States are at peace, or by being, or assuming to be, members of such bodies; by levying or collecting money for the purpose, or for the alleged purpose, of using the same in carrying on military enterprises against such territories or dominions; by enlisting or organizing armed forces to be used against such powers, and by fitting out, equipping, and arming vessels to transport such organized armed forces to be employed in hostilities against such powers.

And whereas it is alleged, and there is reason to apprehend, that such evil-disposed persons have also, at sundry times, within the territory and jurisdiction of the United States, violated the law thereof by accepting and exercising commissions to serve by land or by sea against powers with whom the United States are at peace, by enlisting [Page 305] themselves or other persons to carry on war against such powers; by fitting out and arming vessels with intent that the same shall be employed to cruise or commit hostilities against such powers, or by delivering commissions within the territory or jurisdiction of the United States for such vessels, to the intent that they might be employed as aforesaid, &c.

On the 5th of October last, less than a year after his release, and after this proclamation, O’Neill led a third raid against Canada on the Pembina frontier, but was arrested by the United States troops, and this time met with entire immunity, being discharged on the ground that there was no evidence of his having committed any overt act within the United States territory.1

As stated in the British Counter Case, the proclamation of October, 1870, referred not only to the Fenians, but to expeditions in aid of the existing Cuban insurrection, some of which are mentioned.

The correspondence between the Spanish minister at Washington and the United States Government on the subject of these expeditions against Cuba is, in parts, so applicable to the present question, that I cannot refrain from quoting some passages. Expeditions in aid of the Cuban insurrection.

Mr. Lopez Roberts writes thus to Mr. Fish on the 18th of September, 1869:3

Certain malcontent Cubans have established themselves in the United States, especially in New York, and these are endeavoring, by every means in their power, not to conquer their independence by their own efforts, but to gain at present the sympathies of the American people, in order afterward to seek the aid of this Government for their cause. The history of what has taken place in the last few months is the clearest proof of this. In a state of peace, it has been seen with astonishment that associations were publicly organized in many ports belonging to a friendly nation, said associations being composed of the agents of the insurgents, with no other object than that of directing their attacks against Spain. Enlistments of men have also taken place during whole weeks, as if the object were to form expeditions authorized by law, and consequently with the consent of the authorities. These emissaries have carried their spirit of speculation so far as to take advantage of the good faith of emigrants from Europe, sending them to fight in Cuba, under command of the so-called General Jordan, and other officers, who fought on the side of the South in the civil war. Hostile demonstrations have likewise been suffered to take place against a nation which, in 1861, had not even allowed (in order not to wound the susceptibility of the United States) the title of belligerents to be given to an insurgent population numbering 6,000,000 or 7,000,000 of whites, who occupied a third of the territory of the republic, and were in possession of such resources that they were only conquered by prodigies of valor, military talent, and heroic perseverance; and, after having seen the departure of various filibustering expeditions in broad daylight, and unmolested, from New York and other Federal ports, the minister of Spain finally found himself obliged, by the incomprehensible apathy of the authorities, to take the initiative in order to prevent these repeated infractions of the neutrality laws.

To this Mr. Fish replies as follows, on the 13th October, 1869:3

This Government allows freedom of speech and of action to all, citizens or strangers, restricted only to the observance of the rights of others and of the public peace. The Constitution of the United States secures to the people the right peacefully to assemble, and also to keep and bear arms; it secures them in their persons against unreasonable search and seizure, and provides that no warrant shall issue but upon probable cause, supported by oath or affirmation, and that no person shall be deprived of life, liberty, or property without due process of law.

If certain malcontent Cubans (subjects of Spain) have misconstrued and abused the privileges thus accorded by a liberal Government, the undersigned need not remind Mr. Roberts what the occurrences, daily reported from across the ocean, are showing, that governments cannot always restrain their malcontent subjects or residents. Laws will be broken at times; and happy is that form of government that can control [Page 306] the tendency of evil minds, and restrain, by its peaceful agencies, the violence of evil passions.

The undersigned is forced to admit with regret, that an unlawful expedition did succeed in escaping from the United States and landing on the shores of Cuba. It escaped from the United States without having attracted any notice or suspicion on the part of the Government, or its officers or agents, and, as the undersigned believes, without any suspicion on the part of the agents of the Spanish government. Previous to its departure, Mr. Roberts had been frequently informed that this Government would act upon any information or suggestion which it could obtain through its own agents, or that might be furnished by the Spanish authorities or their agents.

2 Papers relating to Cuban affairs, presented to the House of Representatives, February 21, 1870, p. 131.

On the 17th of December, 1870, Mr. Roberts writes to Mr. Fish to complain of the conduct of the United States authorities in permitting the departure from New York of the Hornet, a notorious vessel, which, as would appear from the British Counter Case,1 has since succeeded in landing an expedition in Cuba. This vessel, formerly a dispatch-boat in the United States Navy, was sold, in June, 1869, by the Navy Department to a certain Señor Macias. She was seized on her departure from Philadelphia, but released, and proceeded to Halifax, where she was again detained by the British authorities, but discharged, as no arms were found on board. Leaving Halifax she sailed along the United States coast, taking on board, at different points, cannon, small-arms, ammunition, and men, and put into Wilmington. Here she was again seized, and a prosecution was instituted against some of the officers and crew. These proceedings seem to have terminated ineffectively, and the vessel was eventually released, upon bonds being given that she would not be used in violation of the neutrality laws. From Wilmington she proceeded to New York, where she was once more seized, and again released.

Mr. Roberts incloses in his note a letter addressed by the Spanish consul at New York to the United States district attorney, in which, after recapitulating the above facts, the consul goes on:

I have now information on which I rely with perfect confidence, that this steamer, in the hands of said Macias and his agents, is being fitted out at this port, to at once sail, to take on board at sea a military expedition from Nassau of some two hundred men and military officers, which will leave there in a vessel, and another military expedition from Key West of some one hundred men, under command of one Cabaleiro; after all of which, and taking on board at sea arms provided, one Cisueros (who with General Jordan was joint commander of the Perit expedition from this city) will take charge of and conduct her to the coast of Cuba.

I respectfully submit that the ownership and history of this steamer, together with the outfit on board, and her preparations, easily ascertainable by this Government, if prompt movement be made, are sufficient to call for the exercise of the ample preventive power of this Government against her departure. Trusting that, in a proper way, I have complied with the disposition of this Government that I lay complaints of this character before, I hereby leave in your hands the responsibility of permitting this formidable instrument to proceed on her illegal expedition to the great injury of my Government.3

What is the reply of the district attorney? Does he take the suspicions of the consul as facts until disproved, and proceed at once to detain the vessel? Not so. He answers:

You accompany your letter with no proof or evidence that would authorize me to seize the Hornet for the alleged intended breeches of our neutrality laws, or to take any steps beyond those I have already taken. I have caused the most rigid scrutiny to be exercised, to see that the Hornet has taken on board nothing of a nature to indicate the hostile intentions you mention. I am advised that her intention is to clear and sail in ballast for Nassau. What her intentions may be on reaching that port are things that remain unproven, and in nowise indicated except by the intimations of your favor. I cannot legally act on mere surmise, but if furnished with proper evidence I shall not hesitate to take any steps necessary to prevent violations of our laws.2

[Page 307]

The violation of the laws was not prevented. Mr. Roberts complains that “that same day the steamer Hornet put to sea from the port of New York, without the judicial authorities of the Federal Government having taken such measures to prevent her departure as should have been dictated to them by the circumstances and criminal antecedents of the aforesaid vessel.”

To this complaint of reliance upon the law for preventive measures, instead of having recourse to prerogative force, Mr. Fish thus replies:

The undersigned has the honor, in reply to this portion of the first note of Mr. Lopez Roberts, to say that it appears from this correspondence that the Hornet, having been seized on the complaint of the Spanish consul only two months before the date of the correspondence, and a hearing in which the Spanish consul took part having resulted in the discharge of the vessel, no subsequent proof, or anything in the nature of legal evidence other than a repetition of that which had already been passed upon by the court, and been decided to be insufficient for the detention of the vessel, had been forwarded by the consul, or by any other Spanish official; that, nevertheless, the district attorney offered to again take steps to detain the Hornet, if proof were furnished which would warrant him in so doing, which proof was not furnished.

The undersigned takes the liberty to call the attention of Mr. Lopez Roberts to the fact that a district attorney of the United States is an officer whose duties are regulated by law, and who, in the absence of executive warrant, has no right to detain the vessels of American citizens without legal process, founded not upon surmises or upon the antecedent character of a vessel, or upon the belief or conviction of a consul, but upon proof submitted according to the forms required by law.

Mr. Fish, therefore, though he had promised to refer the matter to the Department of Justice, is of opinion that “the district attorney complied with his duty, and would not have been justified in taking steps for the seizure of the vessel on the unsupported representations of the consul, after the failure of that officer to furnish the requisite proof to authorize her continued detention.”1

After these details it can admit of no doubt that the history of the United States has been marked not only by systematic privateering against nations with whom the United States were at peace, but also by a series of hostile expeditions carried out in the most determined manner by American citizens against the territories of neighboring and friendly nations.

The counsel of the United States appear to have been aware of the anomalous position in which their Government is placed by the contrast between the manifest failure on its own part to repress these undertakings, and the strictness with which it now attempts to enforce against Great Britain the duty of diligence to repress far less flagrant breaches of neutrality directed against itself. A number of documents have accordingly been appended to the United States counter-case showing (though in an imperfect and fragmentary manner) the various instructions and proclamations which have been issued by the President and Government officials of the United States for the prevention of these, enterprises. These documents, however, omit to mention the results, some of which I have thought it necessary to state. Nevertheless, they tend strongly to confirm the statements of fact contained in the appendix to the report of the neutrality commissioners and those made in the counter-case of the British government, and which have not been contradicted.

The story of all these expeditions as told in a great part in the porclamations of the different Presidents, is pretty much the same.2 Some scheme of annexation, or other form of invasion is started, public meetings [Page 308] of sympathizers are held, a reckless soldier of fortune is selected for chief, funds are raised by bonds issued on the security of the public lands of the country which it is proposed to conquer, arms are collected, recruits advertised for under some transparent verbal concealment of the object, and at last a certain number of men are got together and embark, or otherwise set forth. If the country against which the attack is directed is feeble or unprepared, scenes of outrage and bloodshed follow, until the marauders are driven to the coast, where they find refuge on board American vessels, (in some cases it has been on board ships of war,) and return to the protection of the United States to prepare for a fresh attack. If the country is able vigorously to repel them, as in the case of the Fenian raids, they content themselves with a demonstration on the frontier, seek at once asylum, are disarmed, and the ringleaders are perhaps tried. Those who are convicted are almost certain of an immediate pardon. After an interval the arms are restored, and unless the scheme has become so discredited by failure as to be incapable of revival, preparations are forthwith recommenced for another attempt, and everything goes on as before.

In the cases particularly mentioned in the British counter case, viz, the expeditions of Lopez, Walker, and the Fenian raids, it will be observed that it cannot be said that the Government of the United States had not full information of the projected enterprises, and ample time for giving such instructions as might seem to be requisite for their prevention. Indeed, it is maintained in the argument of the United States counsel (p. 90) that “the President of the United States acted in advance to enforce not diligence only, but active vigilance in all subordinate officers of the Government.”

How successfully that vigilance and diligence was eluded may be gathered from the facts which have just been stated.

In the face of such facts the following comparison between the United States and Great Britain as to the observance of neutral obligations, to the disparagement of the latter, seems, to say the least of it, somewhat surprising:

As to the deportment of the Executive in the course of these occurrences, we confidently appeal to the mass of official acts and correspondence contained in the documents annexed to the American counter-case, to prove that the American Government not only did everything which law required, but did everything which was humanly possible, by preventive vigilance, as well as by punitive prosecution, to discharge the neutral obligations of the United States.

Did the American Government, at any time, or on any occasion, either willfully or with culpable negligence, fail to discharge those obligations? We deny it; although, in the midst of almost continual warfare, both in Europe and America, it is possible that violations of law may have occurred, in spite of all preventive efforts of that Government.1

* * * * * * *

During all this long period, the United States steadily labored to prevent equipment of vessels in their ports to the prejudice of Spain. The successive Presidents of the United States were positive in instruction to all subordinate officers, and vigilant in observation, to enforce the execution of the laws of neutrality, international as well as municipal. Prosecutions were instituted by the courts; vessels unlawfully captured were restored, by judicial or administrative order; and the principles of neutrality were proclaimed and maintained in every act, whether of the courts or of the Executive.1

* * * * * * *

While England professes as her view of public law, that constitutional governments must of necessity allow themselves to drift continually into war by reason of having no other means to keep peace except an act of Parliament, and that confessedly insufficient, the United States, on the other hand, have as constantly maintained, and do now [Page 309] maintain, that it is the duty of all governments, including especially constitutional governments, to discharge their neutral duties in obedience to rules of right, independent of and superior to all possible acts of Parliament. In consonance with which doctrine it is that every President of the United States, from President Washington to President Grant inclusive, has never failed to apply due diligence, voluntarily, sponte sua, in the vigilant discharge of his Own official duty, not in mere complaisance to foreign suggestion, by himself or by other officers of the Government, to prevent all unlawful enterprises of recruitment or equipment in the United States.1

Laws, no doubt, have been passed, and proclamations in abundance issued. But, in spite of all this, privateering, armed incursions into countries at peace with the United States, hostile raids, and filibustering expeditions have gone on as before. The practical result is that the counsel of the United States cannot be permitted to prejudice the British nation and government before the tribunal and the world by an imaginary representation of the neutrality of the United States; and some allowance should be made for Great Britain if, on a far more humble scale, something of the same sort should have happened on her shores, seeing that with a law said to be perfect, and with the loftiest sense of neutral obligations, the Government of the United States have not found it altogether possible to prevent their citizens from occasioning trouble to neighboring nations, whether at war or at peace, and giving to other governments much cause of complaint and remonstrance against their own.

The observation which thus legitimately arises is not got rid of by an attack on the past maritime policy of Great Britain, or by a reference to “the numerous piratical enterprises fitted out in former times against the possessions of Spain in America, and the honor accorded to the chiefs of those expeditions, such as Drake and Hawkins.”

However offensive this telling sentence may have been intended to be, though an Englishman, I readily forgive it for the sake of the charming simplicity which has made its authors forgetful of the fact that, at the time when Drake and Hawkins went forth on the enterprises they term “piratical,” the ancestors of their countrymen and their own still formed a part of the British nation. May not some of the old blood which warmed the hearts and animated the courage of those bold adventurers still flow in the veins of their transatlantic descendants, who have made the name of “filibuster” detract somewhat from our idea of the perfect character of American neutrality?

Having compared the law of the two nations in the matter of neutrality, I should, in the natural order of things, have now proceeded to the facts connected with the different vessels, were it not for the unexpected course pursued by the representatives of the United States in seeking to prejudge the question to which the inquiry before this tribunal is directed, namely, whether the British government was wanting in due diligence in respect of the equipment of certain specified ships, by imputing to the British nation an intentional disregard of its duties as a neutral, and to the British government not only a want of diligence in the discharge of its duty for the protection of the United States against violations of neutrality, but a willful negligence, arising out of an undue partiality and desire to favor the confederates. Cmplaints of unfriendliness.

For this purpose the representatives of the United States before this tribunal have gone into the whole history of the time; and, not content with disparaging the institutions of Great Britain and reviling her law, have sought to cast obloquy on her government, on statesmen [Page 310] whom the British people have been in the habit of looking up to, and, indeed, on the British nation itself.

We are told of “the early and long-continued unfriendliness of the British government;” that “Her Majesty’s government was actuated by a conscious unfriendly purpose toward the United States.” Again and again we are told of the unfriendliness and insincere neutrality of the British cabinet. “The cabinet were actuated by an insincere neutrality to hasten the issue of the Queen’s proclamation.” “The feeling of personal unfriendliness toward the United States continued during a long portion or the whole of the time of the commission or omission of the acts complained of.” Finally, we are told that “the facts established show an unfriendly feeling which might naturally lead to, and would account for, a want of diligence bordering upon willful negligence.”

Earl Russell is made the object of unworthy and unjustifiable attack. He is represented as having “evinced a consistent course of partiality toward the insurgents.” “When information as to the Florida was conveyed to Her Majesty’s principal secretary of state for foreign affairs, he interposed no objection to her sailing from Liverpool.” Surely the writer must have known he was doing grievous injustice in making such a statement. The Florida sailed from Liverpool on the 25th of March. As will appear when we come to the facts connected with that vessel, Earl Russell had heard nothing about her for a month before. Again, “when the overwhelming proof of the complicity of the Alabama was laid before him, he delayed to act until it was too late.” He who penned this must have known that the delay was not Lord Russell’s, and that, but for an unlucky delay, accidentally occurring elsewhere, so far as the action of his lordship in that affair was concerned, the Alabama would have been stopped.

Of the cabinet which has been thus assailed, three distinguished members are no more. But he who, at the difficult time in question, presided over the foreign relations of Great Britain, still lives among us in the fullness of years and honor. There have, of course, been many who, in the strife of party politics, have been opposed to Earl Russell; there have been others who have differed from him in particular incidents of his political conduct; but never did it occur to political enemy—personal enemy he never could have had—to question for a moment the lofty sense of honor, the high and unimpeachable integrity, the truthfulness, the straightforwardness, which have characterized the whole of his long and illustrious career. When the history of Great Britain during the nineteenth century shall be written, not only will there be none among the statesmen who have adorned it whose name will be associated with greater works in the onward path of political progress than that of Earl Russell, but there will be none to whom, personally, an admiring posterity will look back with greater veneration and respect. That this distinguished man should feel deeply aggrieved by the unworthy attack thus made on the government of which he was a leading member, and on himself personally, it is easy to understand; but there are attacks which recoil upon those who make them, and of this nature are aspersions on the honesty and sincerity of Earl Russell.

Speaking of the officials in the colonies, the case of the United States asks the tribunal to bear in mind what it calls “these constant demonstrations of partiality for the insurgents.” “They show,” it is said, “a persistent absence of real neutrality, which should throw suspicion [Page 311] upon the acts of the British officials as to the vessels, and should incline the tribunal to closely scrutinize their acts.”

The British nation comes in, of course, for a share of the abuse thus freely bestowed. British neutrality is described sometimes as “partial and insincere,” sometimes as “habitually insincere.” “Great Britain framed its rules, construed its laws and its instructions, and governed its conduct in the interest of the insurgents.”

I have called this an “unexpected” course; for, assuredly, neither the British government nor the British people were prepared to expect that, after Great Britain had not only expressed, openly and before the world, her “regret” that vessels should have left her shores which afterward did damage to American commerce, but had voluntarily consented to make good that damage, if it could be shown that any want of sufficient care on the part of the British authorities had rendered the equipment and evasion of those vessels possible—on an occasion when, in the peaceful and amicable settlement of any claim the United States might have against Great Britain, the remembrance of past grievances or past resentments was to be forever buried, and the many ties which should bind these two great nations together drawn closer for the time to come—advantage should be taken to revive with acrimonious bitterness every angry recollection of the past, and, as it would seem, to pour forth the pent-up venom of national and personal hate. Deploring the course which has thus been taken as one calculated to mar the work of peace on which we are engaged, I comfort myself with the conviction that a great nation, like the people of the United States, seeing in the present attitude of Great Britain a cordial and sincere desire of reconciliation and enduring friendship, animated itself by a kindred spirit, will not approve of the hostile and insulting tone thus offensively and unnecessarily adopted toward Great Britain, her statesmen, and her institutions, throughout the whole course of the case and argument presented on behalf of the United States.

In support of the alleged unfriendly feeling which the United States ascribe to the British government, as the foundation of the charge of partiality toward the insurgent States, where the government should have been neutral, they refer, in the first place, to certain speeches made on different occasions by leading members of the ministry. Alleged evidence of unfriendly feeling.

There can be no doubt that these speeches not only expressed the sentiments of the speakers, but may be taken to have been the exponents of the sentiments generally entertained at the time. But it is a mistake to suppose that those sentiments involved any unfriendliness toward the United States. In truth, why should any such unfriendliness have existed? The cherished sentiments of the British people on the subject of slavery had strongly tended to alienate them from the South, and the recent public discussion of the subject of slavery, on which the South felt so sensitively, had produced feelings of by no means a friendly character on the part of the latter toward Great Britain. The North might, therefore, not unnaturally calculate on the sympathy of Great Britain, if not on its active support, in a conflict with the South. How was it that what might thus have been expected à priori, was not realized to the extent of such expectation, and that where active sympathy, or even actual support, might have been looked for, impartial neutrality took its place? The causes are not difficult to find. In the first place, it appeared to many that right and justice were on the side of the seceding States. To such persons it seemed that when eleven great provinces, with a population of several millions, forming fully one-fourth of the [Page 312] Union, impelled by the conviction that the political views of the majority of the Federal States were, if not antagonistic to, at all events inconsistent with, their interests, desired to separate themselves from the Union, to which they were bound only by the tie of a voluntary confederation, an attempt to coerce them by the sword into a forced continuance in it, when it must henceforth be hateful to them, was to make the issue one of might rather than of right. Others there were, men of calm judgment and reflection, who, while they deplored a disruption of the great American Union, yet thought that a reunion effected by the subjugation of the South was not to be desired in the true interest either of the victors or the vanquished; that before such a result could be brought about, a prolonged and fearful contest must have taken place, in which the best blood of the South would have been shed, its resources exhausted, its prosperity destroyed for years, its spirit humiliated and broken, making its restoration to the Union of little value, except so far as the pride of the Federal States might be concerned; that, consequently, the Union having thus been torn asunder, it would be better for both parties that each should be left to work out its own destiny, and develop its own resources, in the vast regions to which its dominions might extend. Many, too, there were who deplored this contest the more because they believed that, despite the superior force and resources of the North, the subjugation of the South was impossible, and that the prolongation of the contest could only lead to useless sacrifices on either side. This view proved erroneous in the result, but it was not the less honestly entertained. A strong impression, too, could not fail to be produced on the public mind by the energy, determination, and courage displayed by the South, and the generous ardor with which its population risked life and fortune in the desperate struggle for national independence, so resolutely maintained to the last against infinitely superior force. Whatever the cause in which they are exhibited, devotion and courage will ever command respect; and they did so in this instance. Men could not see, in the united people of these vast provinces thus risking all in the cause of nationality and independence, the common case of rebels, disturbing peace and order on account of imaginary-grievances, or actuated by the desire of overthrowing a government in order to rise upon its ruins. They gave credit to the statesmen and warriors of the South; their cause might be right or wrong; for the higher motives ennoble political action, and all the opprobrious terms which might be heaped upon the cause in which he fell could not persuade the world that the earth beneath which Stonewall Jackson rests does not cover the remains of a patriot and a hero.

Public feeling in Great Britain, however, never went beyond this: that both parties having appealed to arms, they should be dealt with on terms of perfect equality, and that whatever was conceded to the one should not be withheld from the other—to use a common expression, that they should be left to fight it out fairly, without Great Britain throwing her weight into either scale, as the Northern States seemed to think she should have done in their favor, not perhaps by actual assistance in war, but by withholding from the confederates the character of belligerents, and by treating their ships of war as pirates and denying them access in British ports. For the United States appear to have been unable to understand the position assumed by the British government in making any concession whatever in favor of the insurgent States. It appeared to them like an act of perfidy toward a friend. Had not political and commercial relations bound Great Britain and the United [Page 313] States closely together for many years? How then could Great Britain take any step which should give any advantage to an enemy of the United States? Two things were lost sight of in this reasoning: First, that the insurgent States, with whom the United States were now waging war, had formed part of that Union with which Great Britain had had the intimate relations referred to—the second port in the Empire, through which the cotton trade was carried on, having had all its relations with the South; secondly, that Great Britain had the interests of her own commerce to look after, which were seriously compromised in the warfare as carried on by the United States. The blockade of the Southern ports, established by the North with a view to the speedier subjugation of the South, deemed by the North of such paramount importance as to render all consideration for the interest of Great Britain unnecessary, was about to paralyze the industry of Lancashire and bring famine and disaster on thousands. Great Britain accepted the position and acknowledged the blockade. Was she not, in other respects, to look after her own interests? It was natural enough that, in the first heat and passionate excitement, the North should take the view it did of the conduct of Great Britain. I cannot but think the time has come when it might take a calmer and a juster view. It will do so hereafter, in spite of those who still seek to rekindle the flame of discord, the “ignes,” which in their hands maybe truly said to be “suppositos cineri doloso.”

The charge of partiality and of willful negligence having been thus brought requires to be disposed of. For, though partiality does not necessarily lead to want of diligence, yet it is apt to do so, and in a case of doubt would turn the scale. Where a sinister motive exists, culpa, which might otherwise be excused, becomes indeed dolo proxima and inexcusable. Besides, sitting on this tribunal, as I have already said, as in some sense the representative of Great Britain, while I may say, with perfect truth, “pudet hæc opprobria nobis dici potuisse,” I should not have fulfilled my duty if I did not see whether their refutation cannot be found in the facts before us.

Independently of having permitted the equipment of ships, three main heads of complaint are placed on record against the government of Great Britain: 1. That it acknowledged the Confederate States as belligerent, and, as a consequence, refusing to treat their ships of war as pirates, admitted them to British ports on the same footing with the war-ships of the United States. 2. That it did nothing to prevent the agents of the Confederate States from procuring ships and supplies of arms and munitions of war from England. 3. That it did nothing to stop the blockade-running carried on through the British port of the Bahamas and Bermuda. Complaints of unfriendly conduct.

The contention of the United States that Great Britain was not warranted in acknowledging the Confederate States as belligerents might find its answer in the unanimous concurrence of the great maritime powers in following her example. But, independently of this, the course thus pursued may, without difficulty, be shown not only to have been strictly warranted by international law, but also to have been the only one which could with propriety have been adopted. Acknowledgment of belligerency.

First, let us see how stood the facts at the time of the recognition of the Confederate States as belligerents by the Queen’s government.

Between the November of 1860 and April of 1861 seven Southern States of the Union—South Carolina, Florida, Mississippi, Alabama, Georgia, Louisiana, and Texas—had not only renounced their allegiance to the Federal Government and declared themselves independent, but [Page 314] had formed themselves into a confederation, under the title of the “Confederate States;” had adopted a federal constitution with all the necessary elements of government; and had appointed a president. They were in exclusive possession of the territory of these States, to the total and absolute exclusion of the former Federal Government. They had taken measures to raise an army, and had voted upward of $2,000,000 for the creation of a navy. In April, 1861, hostilities had actually commenced. By the 13th of April Fort Sumter had fallen. The arsenal at Harper’s Ferry was seized a few days later. On the 15th the President of the United States called out the militia to the number of 75,000 men.1 On the 17th the president of the Confederate States issued a proclamation inviting applications for letters of marque and reprisal, to be granted under the seal of the Confederate States, against ships and property of the United States and their citizens.2

On the 19th of April President Lincoln issued a further proclamation, declaring the ports of the seven States blockaded;3 and on the 27th issued a like proclamation with regard to the ports of North Carolina and Virginia, which, in the mean time, had joined the confederation.

Here, then, were nine States, with a population of more than five millions of people, exclusive of the negro population, (in other words, one-fourth of the United States, shortly afterward to be joined by two other States,) which had established a de facto government, which government had possession of the entire territory within the limits of those States, and exercised all the powers and functions of government, with an organized army prepared to wage war with the rest of the States for the establishment of national independence, and which had actually commenced hostilities by the capture of forts occupied by Federal forces. No one could deny that this was in fact war, and war about to be conducted on a great scale—a war to which the original Government, the authority of which was thus contested in arms, could not deny the character of war, with all the incidents which attach to it.

On the 4th of May, 1861, (nine days before the date of Her Majesty’s proclamation of neutrality,) Mr. Seward himself wrote to Mr. Dayton, at Paris:

The insurgents have instituted revolution with open, flagrant, deadly war, to compel the United States to acquiesce in the dismemberment of the Union. The United States have accepted this civil war as an inevitable necessity.4

From the beginning the operations of the war were carried on as in a war between nations, according to the usages of war among civilized states. No attempt was made to treat insurgent prisoners as traitors or rebels.

Under such circumstances, it is impossible to deny that a neutral state had a right to accord to the insurgent government the character of a belligerent. Whether it would be morally justified in doing so must depend on the circumstances in which it found itself placed relatively to the parties to the contest. All publicists are agreed that where an integral portion of a nation separates itself from the parent state and establishes, de facto, a government of its own, excluding the former government from all power and control, and thereupon a civil war ensues, a neutral nation is fully justified in recognizing the government de facto as a belligerent, though it has not as yet acknowledged it as a nation; and from the time of the acknowledgment of its belligerent status the government de facto acquires, in relation to the neutral, all [Page 315] the rights which attach to the status of a belligerent of an established nationality.

“When,” says Vattel, “a party is formed in a state which no longer obeys the sovereign, and is of strength sufficient to make head against him, or when, in a republic, the nation is divided into two opposite factions, and both sides take arms, this is called a civil war.”1 Vattel.


When the ties of political association are broken, or at least suspended, between the sovereign and his people, they may be considered as two distinct powers; and since each is independent of all foreign authority, no one has the right to judge between them. Each of them may be right. It follows, in virtue of the voluntary law of nations, then, that the two parties may act as having equal right.2

Martens says:

Foreign nations cannot refuse to consider as lawful enemies those who are empowered by their actual government, whatever that may be. This is not recognition of its legitimacy.

Hautefeuille says on this subject: Hautefeuille.

En effet, les peuples étrangers ne peuvent intervenir entre les belligérants; la qualité de sujets révoltés, que l’une des deux donne à l’autre, doit être écartée par eux; ils ne sont, et ne peuvent être, juges de la justice on de l’injustice de la guerre. Les nations qui désirent rester neutres doivent accepter la possession de fait; si elles veulent être respectées par les deux parties, elles doivent les reconnaître et les respecter également tous les deux. Le prince étranger que refuserait de remplir les devoirs de la neutralité envers les iusurgés ne saurait exiger d’eux d’être regardé comme neutre; il serait à leurs yeux l’allié de leur ennemi, et ils le traiteraient comme tel avec justice. D’un autre côté le souverain qui combat pour ramener sous son obéissance ses sujets revoltés ne saurait s’offenser que les neutres remplissent leurs devoirs envers ses ennemis, puisqu’il ne peut exiger qu’ils deviennent ses alliés, et que, s’ils refusaient de remplir ces devoirs, ils seraient effectivement ses alliés, les ennemis de ses adversaires.3

Professor Bluntschli, though writing adversely to Great Britain on the Alabama question, yet, as to the status of the confederates as belligerents, has the following passages:4 Professor Bluntschli.

Du reste, le parti révolté qui opère avec des corps d’armée militairement organisés, et qui entreprend de faire triompher par la guerre son programme politique, agit, alors qu’il ne forme point un état tout au moins comme s’il en constituait un, au lieu et place d’un état, (an Staates statt.) Il affirme la justice de sa cause et la légitimité de sa mission avec une bonne foi égale à celle qui se presume de droit chez tout état belligérant. (Pages 455, 456.)


Pendant la guerre on admet, dans l’interêt de l’humanité, que les deux partis agissen de bonne foi pour la défense de leurs prétendus droits. (Page 458.)

And at pages 461, 462:

Si l’on tient compte de toutes ces considérations, on arrive à la conclusion suivante: C’est que, à considérer d’un point de vue impartial, tel qu’il s’offrait et s’imposait aux états européens, en présence de la situation que créaient les faits, la lutte engagée entre l’Union et la confédération—c’est-à-dire, entre le nord et le sud—il était absolumeut mpossible de ne pas admettre que les États-Unis fussent alors engagés dans une grandot guerre civile, où les deux parties avaient le caractère de puissances politiqueinent et militairement organisées, se faisant l’une à l’autre la guerre, suivant le mode que le droit des gens reconnaît comme régulier, at animées d’une égale confiance dans leur bon droit. Les uns pouvaient éprouver plus de sympathie pour l’Union, qui avait pour eux toute la supériorité d’un état reconnu et d’une autorité constitutionelle, d’autres pouvaient faire des vœux pour le succès de la confédération, qui n’était pas encore reconnue comme état féderal nouveau, mais qui espérait de se conquérir une existence propre. Tout le monde était d’accord qu’il y avail guerre et que dans cette guerre il y avait deux parties belligérantes.

[Page 316]

The principles by which a neutral state should be governed as to the circumstances under which, or the period at which, to acknowledge the belligerent status of insurgents, have been nowhere more fully and ably, or more fairly, stated than by Mr. Dana, in his edition of Wheaton, in a note to section 23:

The occasion for the accordance of belligerent rights arises when a civil conflict exists within a foreign state. The reason which requires and can alone justify this step by the government of another country is that its own rights and interests are so far affected as to require a definition of its own relations to the parties. Where a parent government is seeking to subdue an insurrection by municipal force, and the insurgents claim a political nationality and belligerent rights which the parent government does not concede, a recognition by a foreign state of full belligerent rights, if not justified by necessity, is a gratuitous demonstration of moral support to the rebellion, and of censure upon the parent government. But the situation of a foreign state with reference to the contests, and the condition of affairs between the contending parties, may be such as to justify this act. It is important, therefore, to determine what state of affairs, and what relations of the foreign state, justify the recognition.

It is certain that the state of things between the parent state and insurgents must amount, in fact, to a war, in the sense of international law—that is, powers and rights of war must be in actual exercise; otherwise the recognition is falsified, for the recognition is of a fact. The tests to determine the question are various, and far more decisive where there is maritime war and commercial relations with foreigners. Among the tests, are the existence of a de facto political organization of the insurgents sufficient in character, population, and resources to constitute it, if left to itself, a state among the nations, reasonably capable of discharging the duties of a state; the actual employment of military forces on each side, acting in accordance with the rules and customs of war, such as the use of flags of truce, cartels, exchange of prisoners, and the treatment of captured insurgents by the parent state as prisoners of war; and, at sea, employment by the insurgents of commissioned cruisers, and the exercise by the parent government of the rights of blockade of insurgent ports against neutral commerce, and of stopping and searching neutral vessels at sea. If all these elements exist, the condition of things is undoubtedly war; and it may be war before they are all ripened into activity.

As to the relation of the foreign state to the contest, if it is solely on land, and the foreign state is not contiguous, it is difficult to imagine a call for the recognition. If, for instance, the United States should formally recognize belligerent rights in an insurgent community at the center of Europe, with no seaports, it would require a hardly supposable necessity to make it else than a mere demonstration of moral support. But a case may arise where a foreign state must decide whether to hold the parent state respon-(Mr. Canning to Lord Granville on the Greek war, June 22, 1826.) If the foreign state sible for acts done by the insurgents, orto deal with the insurgents as a de facto government recognizes belligerency in the insurgents, it releases the parent state from responsibility for whatever may be done by the insurgents, or not done by the parent state where the insurgent power extends. (Mr. Adams to Mr. Seward, June 11, 1861, Dip. Corr. 105.) In a contest wholly upon laud, a contiguous state may be obliged to make the decision whether or not to regard it as a war; but, in practice, this has not been done by a general and prospective declaration, but by actual treatment of cases as they arise. Where the insurgents and the parent state are maritime, and the foreign nation has extensive commercial relations and trade at the ports of both, and the foreign nation and either or both of the contending parties have considerable naval force, and the domestic contest must extend itself over the sea, then the relations of the foreign state to this contest are far different.

In such a state of things the liability to political complications, and the questions of right and duty to be decided at once, usually away from home, by private citizens or naval officers, seem to require an authoritative and general decision as to the status of the three parties involved. If the contest is a war, all foreign citizens and officers, whether executive or judicial, are to follow one line of conduct. If it is not a war, they are to follow a totally different line. If it is a war, the commissioned cruisers of both sides may stop, search, and capture the foreign merchant-vessel; and that vessel must make no resistance and must submit to adjudication by a prize-court. If it is not a war, the cruisers of neither party can stop or search the foreign merchant-vessel; and that vessel may resist all attempts in that direction, and the ships-of-war of the foreign state may attack and capture any cruiser persisting in the attempt. If it is war, foreign nations must await the adjudication of prize tribunals. If it is not war, no such tribunal can be opened. If it is war, the parent state may institute a blockade jure gentium of the insurgent ports, which foreigners must respect; but if it is not a war, foreign nations having large commercial intercourse with the country will not respect a closing of insurgent ports by paper decrees only. If it is a war, the insurgent cruisers are to be treated by foreign citizens and officials, at sea and in port, as lawful belligerents. [Page 317] If it is not a war, those cruisers are pirates, and may be treated as such. If it is a war, the rules and risks respecting carrying contraband, or dispatches, or military persons, come into play. If it is not a war, they do not. Within foreign jurisdiction, if it is a war, acts of the insurgents in the way of preparation and equipments for hostility may be breaches of neutrality laws; while, if it is not a war, they do not come into that category, but under the category of piracy or of crimes by municipal law.

Now, all citizens of a foreign state, and all its executive officers and judicial magistrates, look to the political department of their government to prescribe the rule of their conduct in all their possible relations with the parties to the contest. This rule is prescribed in the best and most intelligible manner for all possible contingencies by the simple declaration that the contest is, or is not, to be treated as war. If the state of things requires the decision, it must be made by the political department of the government. It is not fit that cases should be left to be decided as they may arise, by private citizens, or naval or judicial officers, at home or abroad, by sea or land. It is, therefore, the custom of nations for the political department of a foreign state to make the decision. It owes it to its own citizens, to the contending parties, and to the peace of the world, to make that decision seasonably. If it issues a formal declaration of belligerent rights prematurely, or in a contest with which it has no complexity, it is a gratuitous and unfriendly act. If the parent government complains of it, the complaint must be made upon one of these grounds. To decide whether the recognition was uncalled for and premature requires something more than a consideration of proximate facts, and the overt and formal acts of the contending parties. The foreign state is bound and entitled to consider the preceding history of the parties; the magnitude and completeness of the political and military organizations and preparations on each side; the probable extent of the conflict by sea and land; the probable extent and rapidity of its development; and, above all, the probability that its own merchant-vessels, naval officers, and consuls may be precipitated into sudden and difficult complications abroad. The best that can be said is, that the foreign state may protect itself by a seasonable decision; either upon a test case that arises, or by a general prospective decision; while, on the other hand, if it makes the recognition prematurely, it is liable to the suspicion of an unfriendly purpose to the parent state. The recognition of belligerent rights is not solely to the advantage of the insurgents. They gain the great advantage of a recognized status, and the opportunity to employ commissioned cruisers at sea, and to exert all the powers known to maritime warfare, with the sanction of foreign nations. They can obtain abroad loans, military and naval materials, and enlist men, as against everything but neutrality-laws; their flag and commissions are acknowledged, their revenue-laws are respected, and they acquire a quasi political recognition. On the other hand, the parent government is relieved from responsibility for acts done in the insurgent territory; its blockade of its own ports is respected; and it acquires a right to exert, against neutral commerce, all the powers of a party to a maritime war.

Mr. Dana, though writing after the present dispute, and with reference to it, pronounces no opinion upon it, hut the principles he has thus laid down enable us to judge of the matter without difficulty.

This question was the subject of a solemn decision in the case already cited of the Santissima Trinidad. One of the points there raised being that the government of Buenos Ayres, under whose commission the vessel had taken prizes, was invalid, the independence of that State not having been recognized by the Government of the United States, Mr. Justice Story thus disposes of the objection: The Santissima Trinidad.

There is another objection urged against the admission of this vessel to the privileges and immunities of a public ship, which may as well be disposed of in connection with the question already considered. It is, that Buenos Ayres has not yet been acknowledged as a sovereign independent government by the executive or legislature of the United States, and therefore it is not entitled to have her ships of war recognized by our courts as national ships. We have, in former cases, had occasion to express our opinion on this point. The Government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed a determination to remain neutral between the parties, and to allow to each the same rights of asylum and hospitality and intercourse. Each party is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. We cannot interfere to the prejudice of either belligerent without making ourselves a party to the contest and departing from the posture of neutrality. All captures made by each must be considered as having the same validity, and all the immunities which may be claimed by public ships in our ports, under the law of nations, must be considered as equally the right of each; and, as such, [Page 318] must be recognized by our courts of justice until Congress shall prescribe a different rule. This is the doctrine heretofore asserted by this court, and we see no reason to depart from it.1

An attempt has indeed been made to show that the judgment in the foregoing case has been overruled or shaken by the succeeding judgment in the case of the Gran Para, in which it is alleged that, notwithstanding the commission of a belligerent power, a vessel was held to be subject to the jurisdiction of a court of the United States. I have already shown that, in that case, in which the validity of a capture made by a privateer fitted but in the United States was questioned by reason of the illegal character of the capturing vessel, the latter was not a ship-of-war commissioned by a belligerent government, but simply an American vessel commissioned as a privateer; nor, indeed, sailing as a privateer under the commission of a recognized belligerent. She still remained, therefore, the private property of an American citizen, unprotected by any commission whatever, and a capture made by her could not be held to be good prize.

In the recent case of the British bark, the Hiawatha, and of the Mexican schooner Brillante, which were captured by ships of the United States for endeavoring to run the blockade, and which had been condemned as prize, an appeal having been brought, and an objection having been taken that the Confederate States could not properly be held to be belligerents, and that consequently the President had no right to establish a blockade, Mr. Justice Grier, in delivering the judgment of the majority of the Court, lays down the following important propositions:

Insurrection against a government may or may not culminate in an organized rebellion; but a civil war always begins by insurrection against the lawful authority of the government. A civil war is never solemnly declared; it becomes such by its accidents—the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign state, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason.

The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and miseries produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars.

It is not the less a civil war with belligerent parties in hostile array, because it may be called an “insurrection” by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or state be acknowledged, in order to constitute it a party belligerent in a war according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties. In the case of the Santissima Trinidad, (7 Wheaton, 337,) this court say: “The Government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed her determination to remain neutral between the parties. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war.”

The law of nations is also called the law of nature; it is founded on the common consent as well as the common sense of the world. It contains no such anomalous doctrine as that which this court are now for the first time desired to pronounce, to wit, that insurgents who have risen in rebellion against their sovereign, expelled her courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies because they are traitors; and a war levied on the government by traitors, in order to dismember and destroy it, is not a war because it is an “insurrection.”

[Page 319]

Chief Justice Taney, Mr. Justice Nelson, Mr. Justice Catron, and Mr. Justice Clifford differed, indeed, from the majority of the court, on the question as to whether the blockade was, in its inception, lawful, founding their opinion upon the fact that though by the Constitution of the United States the President could, in case of invasion or insurrection, call out the national forces, Congress alone could declare war, and that, Congress not having declared war till the 13th of July, 1861, the President had no power to declare a blockade, and consequently that the seizure of these vessels was illegal. But there was no difference of opinion on the question of belligerent status so soon as civil war is declared.

The practice of nations has been entirely in accordance with these principles. All the maritime nations—the others were not concerned in the matter—concurred in according to the confederate government the status and rights of a belligerent power.

But though it would seem impossible to contest that, at some time during the continuance of the civil war, the recognition of the belligerent status of the confederate government must have taken place, it is asserted that the recognition by the British government was premature. I will endeavor to take a calm and dispassionate view of the position of the parties, and of this much-agitated question. Whether acknowledgment premature.

Looking to the state of things which had thus come into existence, Her Majesty’s government could not but see that it would soon become not only right, but also necessary to the protection of British interests, to concede to the insurgent states the character of belligerents. As soon as it was known in Great Britain that the war was to be extended to naval operations, the interests of British commerce and British subjects required that the belligerent status of both parties to the great struggle, which was evidently about to ensue, should be clearly ascertained and defined. It was plain that a state of things was about to present itself, such as Mr. Dana refers to, as justifying the recognition of belligerency. Much reliance is placed in the Case of the United States, page 51, for the purpose of establishing the desire of the British government to recognize the insurgents as belligerents at an unduly early period, that as early as the 1st of May, Earl Russell wrote the letter of that date to the lords of the admiralty.

The letter is as follows:

The intelligence which reached this country by the last mail from the United States gives reason to suppose that a civil war between the Northern and Southern States of the Confederacy was imminent, if indeed it might not be considered to have already begun.

Simultaneously with the arrival of this news, a telegram, purporting to have been conveyed to Halifax from the United States, was received, which announced that the President of the southern confedercy had taken steps for issuing letters of marque against the vessels of the Northern States.

If such is really the case, it is obvious that much inconvenience may be occasioned to the numerous British vessels engaged in trade on the coast of the United States and in the Gulf of Mexico, and that timely provision should be made for their protection against undue molestation by reason of the maritime operations of the hostile parties; and Her Majesty has accordingly commanded me to signify to your lordships her pleasure that adequate re-inforcements should forthwith be sent to Her Majesty’s squadron on the North American and West Indian station, so that the admiral in command may be able duly to provide for the protection of British shipping in any emergency that may occur.

I need scarcely observe to your lordships that it might be right to apprise the admiral that, much as Her Majesty regrets the prospect of civil war breaking out in a country in the happiness and peace of which Her Majesty takes the deepest interest, it is Her Majesty’s pleasure that nothing should be done by her naval forces which should indicate any partiality or preference for either party in the contest that may ensue.1

[Page 320]

When I say that the foregoing letter is relied on, I must correct myself. It is relied on only in a mutilated form. The third paragraph of the letter, which gives the key to its purpose, and supplies the motive of the writer, is, I regret to say, omitted—its place being supplied by asterisks—while the other paragraphs are given at length.1 When the letter is before us in its entirety, we see plainly that the purpose Earl Russell had in view was, not to give any advantage to the insurgents, but to secure protection to British shipping in case the invitation of the confederate president should have the effect of letting loose a swarm of privateers in the American waters.

There can, however, be no doubt that, prior to the issuing of the Queen’s proclamation of neutrality, Her Majesty’s ministers, having become acquainted with the relative position of the two parties, and seeing plainly that this was no ordinary revolt, and that insurrection had assumed the form of organized government and of organized warfare, and looking to the dimensions the contest was about to take, had come to the conclusion that it would be impossible to withhold from the insurgent government the character and rights of belligerents.

At the time the letter last cited was written, nothing was known beyond the fact that the confederate government were preparing to issue letters of marque; but on the ensuing day, the 2d, came the news that President Lincoln had proclaimed a blockade of all the Southern ports, though the terms of the proclamation were not yet known. Hereupon the government, in anticipation of any emergency that might arise, adopted the constitutional course of consulting the law-officers of the Crown.

“Her Majesty’s government heard the other day,” said Lord John Russell in the House of Commons on the 2d of May—

That the confederated States have issued letters of marque, and to-day we have heard that it is intended there shall be a blockade of all the ports of the Southern States. As to the general provisions of the law of nations on these questions, some of the points are so new as well as so important that they have been referred to the law-officers of the Crown for their opinion, in order to guide the government in its instructions both to the English minister in America and the commander-in-chief of the naval squadron. Her Majesty’s government has felt that it was its duty to use every possible means to avoid taking any part in the lamentable contest now raging in the American States. Nothing but the imperative duty of protecting British interests, in case they should be attacked, justifies the government in at all interfering. We have not been involved in any way in that contest, by any act or giving any advice in the matter, and, for God’s sake, let us, if possible, keep out of it.2

On the 6th of May Lord John Russell stated in the House of Commons that the law-officers and the government had come to the conclusion that, according to principles which seemed to them to be just, the Southern Confederacy must be treated as a belligerent.3

A dispatch to Lord Lyons of the same day, in which Earl Russell develops his views on the subject, is worthy of a wise and considerate statesman:

My Lord: Her Majesty’s government are disappointed in not having received from you, by the mail which has just arrived, any report of the state of affairs and of the prospects of the several parties, with reference to the issue of the struggle which appears, unfortunately, to have commenced between them; but the interruption of the communication between Washington and New York sufficiently explains the non-arrival of your dispatches.

The accounts, however, which Her Majesty’s consuls at different ports were enabled to forward by the packet, coincide in showing that, whatever may be the final result of [Page 321] what cannot now be designated otherwise than as the civil war which has broken out between the several States of the late Union, for the present, at least, those States have separated into distinct confederacies, and, as such, are carrying on war against each other.

The question for neutral nations to consider is, what is the character of the war; and whether it should be regarded as a war carried on between parties severally in a position to wage war, and to claim the rights and to perform the obligations attaching to belligerents.

Her Majesty’s government consider that that question can only be answered in the affirmative. If the government of the northern portion of the late Union possesses the advantages inherent in long-established governments, the government of the southern portion has, nevertheless, duly constituted itself, and carries on, in a regular form, the administration of the civil government of the States of which it is composed.

Her Majesty’s government, therefore, without assuming to pronounce upon the merits of the question on which the respective parties are at issue, can do no less than accept the facts presented to them. They deeply deplore the disruption of a confederacy with which they have at all times sought to cultivate the most friendly relations; they view with the greatest apprehension and concern the misery and desolation in which that disruption threatens to involve the provinces now arrayed in arms against each other; but they feel that they cannot question the right of the Southern States to claim to be recognized as a belligerent, and, as such, invested with all the rights and prerogatives of a belligerent.1

Whether the determination to acknowledge the Confederate States as belligerents was come to a few days too soon or not, is a matter on which there may possibly be a difference of opinion. But that, on this account, British statesmen, acting under an anxious sense of duty, in furtherance of what they believed to be a just and necessary policy, should be publicly accused of having been influenced by the sinister design of promoting the interests of the one party at the expense of the other, while pretending simply to fulfill the duties incidental to their position toward both parties, is a painful thing. The world must judge between the accusers and the accused.

Whether the resolution was come to too soon or not, it was not acted upon till the events which rapidly supervened could leave no doubt on the minds of Her Majesty’s ministers as to issuing the proclamation of neutrality. On the 10th of May, a dispatch was received from Lord Lyons, containing a copy of the proclamation of President Davis as to issuing letters of marque, and a copy of that of President Lincoln, declaring that southern privateers should be treated as pirates, and announcing the blockade of the southern ports.2

The British government contends, and, as it seems to me, most justly, that when, by declaring the southern ports blockaded, the President openly acknowledged the existence of a civil war, and thereby recognized the Confederate States as belligerents in the face of the world, he thereby rendered it not only the right but the duty of the British government to treat them as such.

That it became the right of Her Majesty’s government so to treat them can admit of no possible doubt; no jurist, I am satisfied, will assert the contrary. The pretension that the Federal Government could treat the contest as a war, so as to declare a blockade, and thereby exclude neutral nations from access to the blockaded ports for the purpose of trade, while neutral governments, on the other hand, were not entitled to treat the war as one going on between two belligerent powers, is a proposition which is, I say it with all respect for Mr. Adams, really preposterous.

Applying the principles laid down by the editor of Wheaton, in the note which I have quoted at length, as well as by the other eminent jurists to whom I have referred, can any one doubt that Her Majesty’s government were fully justified in recognizing the belligerent character [Page 322] of the Confederate States? When the war between the two parties to the contest became extended to the ocean, the interests of maritime nations, and more especially of Great Britain, with its extensive commerce with the ports of both Southern and Northern States, became at once seriously involved. Between Great Britain and the southern ports there was the constant intercourse of an active and extensive commerce. The British ship-owners and merchants had a right to look to the government for protection to ships and cargoes, if interfered with, in time of peace, in any way not warranted by international law. It was the duty of Her Majesty’s ships of war stationed on the neighboring naval stations, or detached from them, to afford that protection. So long as the war was not acknowledged by Her Majesty as a legitimate war, any interference by either belligerent with a British ship might have proved the occasion of some serious collision.

With the recognition by Her Majesty of the war, all her subjects would know that the blockade must be treated as a lawful one, and that any trade attempted to be carried on with the blockaded ports would be at the peril of the parties attempting it.

Unless the blockaded ports were treated as the ports of a belligerent, there could be no lawful blockade. The blockade of its own ports by a state, to the exclusion of those who have a right to trade with its subjects, is a thing unknown and unheard of. The subjects of Great Britain had, by existing treaties, the right of trading with those of the United States. If the citizens of the Southern States were still to be looked upon as citizens of the United States, British merchant-ships had a right of free access to the southern ports notwithstanding the blockade. Nor could the British government deprive them of this right, or refuse them its protection if forcibly interfered with.

The effect of a blockade in the disturbance of contracts previously made makes it of the utmost importance to the commercial world to have the earliest notice of the fact, and of the recognition of it by the government; the more so as it has been considered that official notice of a blockade to a government is sufficient notice to its subjects.

All these important considerations appear to me to show, beyond the possibility of dispute, that it becomes the duty of a neutral government, when it is made aware of the fact of a blockade, to give notice of it to its subjects at the very earliest moment.

The alternative of refusing to acknowledge the war as a war between two belligerent powers, was therefore to refuse to acknowledge the blockade. Would the United States have preferred that Great Britain should adopt this alternative?

By establishing the blockade, therefore, the Government of the United States made it, as I have said, not only the right but the duty of Her Majesty’s government to acknowledge the belligerency of the confederates, and thus to give to the war, so far as British subjects were concerned, the incidents which attach to war, as respects the relative rights and obligations of belligerents and neutrals.

The policy of the government was explained and justified by Lord Russell in a letter to Mr. Adams, of the 4th May, 1865:

Let me remind you that when the civil war in America broke out so suddenly, so violently, and so extensively, that event, in the preparation of which Great Britain had no share, caused nothing but detriment and injury to Her Majesty’s subjects; Great Britain had previously carried on a large commerce with the Southern States of the Union, and had procured there the staple which furnished materials for the industry of millions of her people.

Had there been no war, the existing treaties with the United States would have secured the continuance of a commerce mutually advantageous and desirable. But [Page 323] what was the first act of the President of the United States? He proclaimed on the 19th of April, 1861, the blockade of the ports of seven States of the Union. But he could lawfully interrupt the trade of neutrals to the Southern States upon one ground only, namely, that the Southern States were carrying on war against the Government of the United States; in other words, that they were belligerents.

Her Majesty’s government, on hearing of these events, had only two courses to pursue, namely, that of acknowledging the blockade, and proclaiming the neutrality of Her Majesty, or that of refusing to acknowledge the blockade, and insisting upon the the rights of Her Majesty’s subjects to trade with the ports of the South. Her Majesty’s government pursued the former course as at once the most just and the most friendly to the United States.

It is obvious, indeed, that the course of treating the vessels of the Southern States as piratical vessels, and their crews as pirates, would have been to renounce the character of neutrals, and to take part in the war; nay, it would have been doing more than the United States themselves, who have never treated the prisoners they have made either by land or sea as rebels and pirates, but as prisoners of war, to be detained until regularly exchanged.

So much as to the step, which you say your Government can never regard “as otherwise than precipitate,” of acknowledging the Southern States as belligerents. It was, on the contrary, your own Government which, in assuming the belligerent right of blockade, recognized the Southern States as belligerents. Had they not been belligerents, the armed ships of the United States would have had no right to stop a single British ship upon the high seas.1

But it is said that the recognition was premature, because, when it was made, the official announcement of the blockade had not yet been received. What if this had been so? The blockade existed in fact; it was known to the British government; and it was important to Her Majesty’s subjects that it should be made known to them at the earliest possible moment. But this assumption, rashly made in the case of the United States, turns out to be incorrect. The facts stood thus: The proclamation of the President with regard to the ports of the seven States was issued on the 19th of April. It was followed by a similar proclamation of the 27th, as to the ports of North Carolina and Virginia. The blockade was effectually established on the 30th. The issuing of the proclamations was communicated to Lord Lyons, the minister of Great Britain at Washington, on the 29th. On the 1st of May, Mr. Seward, the Secretary of State of the United States, writes to him as follows:

The so-called Confederate States have waged an insurrectionary war against this Government. They are buying and even seizing vessels in several places for the purpose of furnishing themselves with a naval force, and they are issuing letters of marque to privateers to be employed in preying on the commerce of this country. You are aware that the President has proclaimed a blockade of the ports included within the insurgent States. All these circumstances are known to the world.2

On the 3d of May the proclamation of the blockade, which had appeared in the Boston newspapers, was published in the London newspapers. It turned out afterward that there were inaccuracies in the version thus given by the Boston newspapers; but the substance of the thing remained the same; there was no doubt that the blockade had been declared.

On the 5th of May, the government received a letter of the 23d of April from their consul at New York, transmitting a copy, correct in all essential particulars, of the proclamation of the blockade, as also a complete copy of that of President Davis, inviting applications for letters of marque.3 On the 10th of May, complete copies of both proclamations were received from the British minister at Washington.4

In the mean time, a copy of the President’s proclamation of the 19th [Page 324] of April having been forwarded by Mr. Secretary Seward to Mr. Dallas, the United States minister in England, it was officially communicated by Mr. Dallas to Lord Russell on the 11th of May.1 Her Majesty’s proclamation of neutrality was not issued till the 14th of May. Thus it was not till three days after the official communication last referred to, and nine days after a copy had been received from the British consul at New York, that Her Majesty’s proclamation of neutrality was issued.

But it is said that the expected arrival of Mr. Adams should have been awaited. What difference could it have made? No explanations afforded by that gentleman could have altered the facts—facts which made it the duty of the government to advise Her Majesty to recognize the validity of the blockade, and, in order so to do, to recognize also the belligerent status of the de-facto confederate government.

But the not waiting for Mr. Adams is put forward as a breach of faith on the part of Earl Russell, his lordship having, it is said, pledged himself to Mr. Dallas, the predecessor of Mr. Adams, to await the arrival of the latter. Here again we have an entire misconception. No such pledge was given, or intended to be given. What passed between Lord Russell and Mr. Dallas appears from a letter of the latter to Mr. Seward of the 2d of May:

The solicitude felt by Lord John Russell as to the effect of certain measures represented as likely to be adopted by the President, induced him to request me to call at his private residence yesterday. I did so. He told me that the three representatives of the Southern Confederacy were here; that he had not seen them, but was not unwilling to do so, unofficially; that there existed an understanding between the government and that of France, which would lead both to take the same course as to recognition, whatever that course might be; and he then referred to the rumor of a meditated blockade of southern ports and their discontinuance as ports of entry—topics on which I had heard nothing, and could therefore say nothing. But as I informed him that Mr. Adams had apprised me of his intention to be on his way hither, in the steamship Niagara, which left Boston on the 1st May, and that he would probably arrive in less than two week, by the 12th or 15th instant, his lordship acquiesced in the expediency of disregarding mere rumor, and waiting the full knowledge to be brought by my successor.2

It is plain that the motive for waiting the arrival of Mr. Adams was to obtain positive knowledge in the place of “mere rumor”—that is, “rumor of a meditated blockade;” not that there was any intention of discussing with Mr. Adams the question of the proclamation of neutrality, if the rumor proved correct. When authentic information came in the copies of the President’s proclamation officially furnished to the foreign office, full knowledge took the place of rumor, and the latter became converted into certainty. All motive for delay then ceased and the time for action had arrived.

Yet this has been magnified into a breach of faith, and that by per-by the sons who had this letter before them.

The example of Great Britain in acknowledging the Confederate States as belligerents was followed by the Emperor of the French in a proclamation of the 10th of June; by the King of the Netherlands on the 16th; by the Queen of Spain on the 17th; Emperor of Brazil on the 1st of August. Recognition of belfligerency.

The Government of the United States, however, refused to concede to other nations the right of acknowledging the belligerent status of the seceding States. In these they saw only what Mr. Seward termed “a discontented domestic faction.” Writing to Mr. Dayton on the 30th of May, 1861, Mr. Seward says: Course pursued by oreign powers.

The United States cannot for a moment allow the French government to rest under [Page 325] the delusive belief that they will be content to have the Confederate States recognized as a belligerent power by states with which this nation is in amity. No concert of action among foreign spates so recognizing the insurgents can reconcile the United States to such a proceeding, whatever may be the consequences of resistance.1

In a dispatch from Mr. Seward to Mr. Dayton, of the 17th of June, 1861, the former writes:

The United States, rightly jealous, as we think, of their sovereignty, cannot suffer themselves to debate an abridgment of that sovereignty with France or with any other nation. Much less can it consent that France shall announce to it a conclusion of her own against that sovereignty, which conclusion France has adopted without any previous conference with the United States on the subject. This Government insists that the United States are one whole undivided nation, especially so far as foreign nations are concerned, and that France is, by the law of nations and by treaties, not a neutral power between two imaginary parties here, but a friend of the United States.

* * * * * * *

It is erroneous, so far as foreign nations are concerned, to suppose that any war exists in the United States. Certainly there cannot be two belligerent powers where there is no war. There is here, as there has always been, one political power, namely, the United States of America, competent to make war and peace, and conduct commerce and alliances with all foreign nations. There is none other either in fact or recognized by foreign nations. There is, indeed, an armed sedition seeking to overthrow the Government, and the Government is employing military and naval forces to repress it. But these facts do not constitute a war presenting two belligerent powers, and modifying the national character, rights, and responsibilities, or the characters, rights, and responsibilities of foreign nations. It is true that insurrection may ripen into revolution, and that revolution thus ripened may extinguish a previously existing state, or divide it into one or more independent states, and that if such states continue their strife after such division, then there exists a state of war affecting the characters, rights, and duties of all the parties concerned. But this only happens when the revolution has thus run its successful course.

The French government says, in the instruction which has been tendered to us, that certain facts which it assumes confer upon the insurgents of this country, in the eyes of foreign powers, all the appearances of a government de facto; wherefore, whatever may be its regrets, the French government must consider the two contending parties as employing the forces at their disposal in conformity with the laws of war.

This statement assumes not only that the law of nations entitles any insurrectionary faction, when it establishes a de-facto government, to be treated as belligerent, but also that the fact of the attainment of this status is to be determined by the appearance of it in the eyes of foreign nations. If we should concede both of these positions, we should still insist that the existence of a de-facto government, entitled to belligerent rights, is not established in the present case.2

In a dispatch of June 19 he writes:

What is now seen in this country is the occurrence, by no means peculiar, but frequent in all countries, more frequent even in Great Britain than here, of an armed insurrection engaged in attempting to overthrow the regularly constituted and established government. There is, of course, the employment of force by the Government to suppress the insurrection, as every other government necessarily employs force in such cases. But these incidents by no means constitute a state of war impairing the sovereignty of the Government, creating belligerent sections, and entitling foreign states to intervene or to act as neutrals between them, or in any other way to cast off their lawful obligations to the nation thus for the moment disturbed.3

Writing to Mr. Adams on the 21st of July, he says:

The United States and Great Britain have assumed incompatible, and thus far irreconcilable, positions on the subject of the existing insurrection.

The United States claim and insist that the integrity of the Republic is unbroken, and that their Government is supreme, so far as foreign nations are concerned, as well for war as for peace, over all the States, all sections, and all citizens, the loyal not more than the disloyal, the patriots and the insurgents alike. Consequently, they insist that the British government shall in no way intervene in the insurrection, or hold commercial or other intercourse with the insurgents in derogation of the Federal authority.4

The position assumed by the United States Government was plainly untenable, being neither more nor less than this—that when a body of [Page 326] states secede from a former government and form one of their own, the original government is to be the sole judge as to when the status of belligerency can be conceded—a proposition wholly at variance with all received principles of international law.

How Lord Russell viewed the matter appears from a dispatch to Lord Lyons, of June 21:

I have to state to your lordship that I have every reason to be satisfied with the language and conduct of Mr. Adams since he has arrived in this country.

The only complaint which he has urged here is, that the Queen’s proclamation announcing her neutrality was hasty and premature.

I said, in the first place, that our position was of necessity one of neutrality; that we could not take part either for the North against the South, or for the South against the North.

To this he willingly assented, and said that the United States expected no assistance from us to enable their Government to finish the war.

I rejoined that if such was the case, as I supposed, it would not have been right either toward our admirals and naval commanders, nor toward our merchants and mercantile marine, to leave them without positive and public orders; that the exercise of belligerent rights of search and capture by a band of adventurers clustered in some small island in the Greek Archipelago or in the Atlantic would subject them to the penalties of piracy; but we could not treat 5,000,000 of men, who had declared their independence, like a band of marauders or filibusters. If we had done so, we should have done more than the United States themselves. Their troops had taken prisoners many of the adherents of the confederacy, but I could not perceive from the newspapers that in any case they had brought these prisoners to trial for high treason, or shot them as rebels. Had we hung the captain of an armed vessel of the southern confederacy as a pirate, we should have done that which a sense of humanity had prohibited on the part of the Government itself.

The question soon assumed a practical form. When the Government of the Confederate States had armed certain vessels, and had placed them under the command of officers duly commissioned by it, and those vessels put into ports of the neutral powers, the Government of the United States protested loudly against their being received as vessels of war, on the ground that the insurgent States still formed an integral portion of the Union; that they were to be looked upon as rebels; and that commissions from a government, the independence of which had not been acknowledged, could not give to its ships the character of ships of war. They insisted, therefore, on these vessels being looked upon as pirates, to which all entry into the ports of other nations, and all assistance of every kind, should be denied. The Federal Government even went further, and threatened to hold neutral governments responsible for any assistance or supplies afforded to confederate ships. But the neutral governments were unanimous in refusing to accede to these demands, and persisted in conceding to the confederate ships the same privileges as were afforded to those of the United States. Question as to Confederate vessels

The question first arose with the government of the Netherlands, on the occasion of a visit of the confederate vessel, the Sumter, to the Butch island of Curaçoa, in August, 1861, and of her being allowed to replenish her stock of coal and obtain supplies there. The fact having come to the knowledge of Mr. Seward, he forthwith instructed Mr. Pike, the United States minister at the Hague, to bring the matter immediately to the notice of the Government: Discussion with government of the Netherlands.

You are instructed to bring this matter immediately to the notice of the government of the Netherlands. The subject of damages for so great a violation of the rights of the United States will be considered when we shall have properly verified the facts of the case. In the mean time you will ask the government of the Netherlands for any explanation of the transaction it may be able or see fit to give. You will further say that the United States, if the case thus stated shall prove to be correct, will expect, in [Page 327] view of the treaties existing between the two countries, and the principles of the law of nations, as well as upon the ground of assurances recently received from the government of the Netherlands, that it will disown the action of its authorities at Curaçoa, and will adopt efficient means to prevent a recurrence of such proceedings hereafter.1

Mr. Pike accordingly protests against the idea “that aid and countenance could be afforded by a friendly power to the Sumter, though she did assume the character of a ship of war of the insurgents. I claimed,” he says—

That were she afforded shelter and supplies on this ground by the authorities at Curaçoa, and should the Dutch government approve the act, it would be, substantially, a recognition of the Southern Confederacy, and that, in my judgment, such an act would be regarded by the United States as an unfriendly and even hostile act, which might lead to the gravest consequences. I held that nothing more need be asked by the so-styled Confederate States, as a practical measure of recognition, than that a ship like the Sumter, claiming to be a national vessel of those States, should be permitted to enter the neighboring ports of foreign nations, and there obtain the necessary means to enable her to depredate upon the commerce of the United States. That such a course on the part of any power, aggravated by the fact that she was unable to obtain such supplies at home, so far from being neutral conduct, was really to afford the most efficient aid to the men who were in rebellion against their own government, and plundering and destroying the vessels and property of their fellow-citizens on the high seas. I protested against such a doctrine as tending necessarily to the termination of all friendly relations between our Government and any government that would tolerate such practices, whether that government were France, or England, or Spain, or Holland. I remarked that it was not for me to judge of the purposes of European powers in regard to the existing state of things in the United States; but if there were to be exhibited a disposition anywhere to take advantage of our present situation, I believed it would be found that such a course could not be taken with impunity now, nor without leading to alienation and bitterness in the future.2

A correspondence ensued between Mr. Pike and Baron Van Zuylen, the Netherlands minister for foreign affairs, in which the former denied the right of other nations to accord to the insurgent States the character of a belligerent power, and insisted that the vessels of the Confederate government were but “piratical craft,” or at best could only be looked upon as privateers, in which character they would be excluded, except in case of distress, from ports of the Netherlands.

M. Van Zuylen stated the views of his government in a most able paper, from which, however, owing to its length, I must confine myself to a few extracts:

It is not sufficient to dispose of the difficulty by the declaration that the Sumter is, as is stated in your dispatches, “a vessel fitted out for, and actually engaged in, piratical expeditions,” or “a privateer steamer.” Such an assertion should be clearly proved, in accordance with the rule of law, “affirmanti incumbit probatio.”

After having poised, with all the attention which comports with the weightiness of the matter, the facts and circumstances which characterize the dissensions which now are laying desolate the United States, and of which no government more desires the prompt termination than does that of the Netherlands, I think I may express the conviction that the Sumter is not a privateer, but a man-of-war, grounding myself on the following considerations:

In the first place, the declaration of the commander of the vessel, given in writing to the governor of Curaçoa, who had made known that he would not allow a privateer to come into the port, and had then demanded explanations as to the character of the vessel. This declaration purported, “the Sumter is a ship of war, duly commissioned by the government of the Confederate States.”

The Netherlands governor had to be contented with the word of the commander couched in writing. M. Ortolan, (“Diplomatic de la mer,” i, p. 217,) in speaking of the evidence of nationality of vessels of war, thus expresses himself:

“The flag and the pennant are visible indications; but we are not bound to give faith to them until they are sustained by a cannon-shot.”

The attestation of the commander maybe exigible, but other proofs must be presumed; and, whether on the high seas or elsewhere, no foreign power has the right to obtain the exhibition of them.

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Therefore the colonial council has unanimously concluded that the word of the commanding officer was sufficient.

In the second place, the vessel armed for war by private persons is called “privateer.” The character of such vessel is settled precisely, and, like her English name, (privateer,) indicates sufficiently under this circumstance that she is a private armed vessel—name which Mr. Wheaton gives them.—(“Elements of International Law,” ii, p. 19.)

Privateering is the maritime warfare which privateers are authorized to make, for their own account, against merchant-vessels of the enemy, by virtue of letters of marque, which are issued to them by the state.

The Sumter is not a private vessel; is not the private property of unconnected individuals—of private ship-owners. She, therefore, cannot be a privateer; she can only be a ship of war or ship of the state, armed for cruising. Thus the Sumter is designated, in the extract annexed from Harper’s Weekly, under the name of “rebel ship of war.”

Thirdly. It cannot be held, as you propose in your dispatch of the 9th of this month, that all vessels carrying the confederate flag are, without distinction, to be considered as privateers, because the principles of the law of nations, as well as the examples of history, require that the rights of war be accorded to those States.

The Government of the United States holds that it should consider the States of the South as rebels.

It does not pertain to the King’s government to pronounce upon the subject of a question which is entirely within the domain of the internal regulation of the United States; neither has it to inquire whether, in virtue of the Constitution which rules that republic, the States of the South can separate from the central Government, and whether they ought then, aye or no, to be reputed as rebels during the first period of the difficulties.1

After referring to historical precedents, especially the case of the United States themselves in their struggle for independence, “is there need,” he asks, “to remind you that at the outset of the war of American independence, in 1778, the English refused to recognize American privateers as lawful enemies, under pretense that the letters of marque which they bore did not emanate from the sovereign, but from revolted subjects? But Great Britain soon had to desist from this pretension, and to accord international treatment to the colonists in arms against the mother country.”

M. Van Zuylen cites also the precedent of the American privateer Paul Jones:

This vessel, considered as a pirate by England, had captured two of His Britannic Majesty’s ships in October, 1779. She took them into the Texel, and remained there more than two months, notwithstanding the representations of Mr. York, ambassador of Great Britain at the Hague, who considered the asylum accorded to such privateer (pirate as he called it in his Memoir to the States-General of 21st March, 1780) as directly contrary to treaties, and even to the ordinances of the Government of the Republic.

Mr. York demanded that the English vessels should be released.

The States-General refused the restitution of the prizes.

The United States, whose belligerent rights were not recognized by England, enjoyed at that period the same treatment in the ports of the Republic of the United Provinces as the Netherlands authorities have now accorded to the Confederate States.

If the cabinet of the Hague cannot, therefore, by force of the preceding, class all the vessels of the Confederate States armed for war in the category of privateers, much less can it treat them as pirates, (as you call them in your dispatch of the 12th of this month,) or consider the Sumter as engaged in a filibustering expedition—“engaged in a piratical expedition against the commerce of the United States,” as it reads in your communication of the 2d of September.1

The subject was resumed in the ensuing October, when the Sumter had again put into a Dutch port, namely, Paramaribo, and, in spite of the remonstrance of the United States consul, had been allowed to coal and refit. Mr. Seward immediately directs Mr. Pike to demand explanations. Mr. Pike loses no time in writing in peremptory terms:

The reappearance of the Sumter in a port of the Netherlands, after so brief an interval, seems to disclose a deliberate purpose on the part of the persons engaged in the [Page 329] rebellion against the United States Government to practice upon the presumed indifference, the expected favor, or the fancied weakness of the Dutch Government.

During a period of forty-six days, during which we have heard of this piratical vessel in the West Indies, it would appear that she had been twice entertained and supplied at Dutch ports, and spent eighteen days under their shelter.

This can be no accidental circumstance.

In the multitude of harbors with which the West India seas abound, the Sumter has had no occasion to confine her visits so entirely to the ports of one nation, especially one so scantily supplied with them as Holland. And the fact that she does so is, in my judgment, not fairly susceptible of any other interpretation than the one I have given.

I feel convinced that the government of the Netherlands will see in this repeated visit of the Sumter (this time, it appears, without any pretext) a distinct violation of its neutrality according to its own views, as laid down in your excellency’s communication to me of the 17th of September last, and a case which will call for the energetic assertion of its purpose, expressed in the paper referred to, namely, not to allow its ports to be made the base of hostile operations against the United States. For that the Sumter is clearly making such use of the Dutch ports would seem to admit of no controversy.1

In reply, Baron Van Zuylen repeats the refusal of the royal government to treat the Sumter as other than a ship of war. He observes that the commission of the officer in command of her had been duly exhibited to the governor. At the same time he informs Mr. Pike—

However, the government of the Netherlands, wishing to give a fresh proof of its desire [to avoid] all that could give the slightest subject for complaint to the United States, has just sent instructions to the colonial authorities, enjoining them not to admit, except in case of shelter from stress, (relâche forcée,) the vessels of war and privateers of the two belligerent parties, unless for twice twenty-four hours, and not to permit them, when they are steamers, to provide themselves with a quantity of coal more than sufficient for a run of twenty-four hours.2

The offensive tone of Mr. Pike’s previous letter does not pass unnoticed:

The feeling of distrust which seems to have dictated your last dispatch of the 8th of this month, and which shows itself especially in some entirely erroneous appreciations of the conduct of the government of the Netherlands, gives to the last, strong in its good faith and in its friendly intentions, just cause for astonishment, So, then, the cabinet of which I have the honor to form part, deems that it may dispense with undertaking a justification useless to all who examine impartially, and without passion, the events which have taken place.3

In the mean time, Mr. Seward had written a dispatch to Mr. Pike, of the 17th October, in which he states, in explicit terms, “for the information of the government of the Netherlands, just what the United States claim and expect in regard to the matter in debate.”

They have asked for an explanation of the case, presented by the admission of the Sumter by the Governor of Curaçoa, if one can be satisfactorily given; and if not, then for a disavowal of that officer’s proceedings, attended by a justly-deserved rebuke.

These demands have been made, not from any irritation or any sensibility of national pride, but to make it sure that henceforth any piratical vessel fitted out by or under the agency of disloyal American citizens, and cruising in pursuit of merchant-vessels of the United States, shall not be admitted into either the continental or the colonial ports of the Netherlands under any pretext whatever. If that assurance cannot be obtained in some way, we must provide for the protection of our rights in some other way. Thus the subject is one of a purely practical character; it neither requires nor admits of debate or argument on the part of the United States. If what is thus desired shall be obtained by the United States in any way, they will be satisfied; if it fails to be obtained through the disinclination of the government of the Netherlands, its proceedings in this respect will be deemed unfriendly and injurious to the United States. The United States being thus disposed to treat the subject in a practical way, they are not tenacious about the manner or form in which the due respect to their rights is manifested by the government of the Netherlands, and still less about the considerations or arguments upon which that government regulates its own conduct in the matter. They regard the whole insurrection in this country as ephemeral; indeed, [Page 330] they believe that the attempt at piracy, under the name of privateering, made by the insurgents, has already well nigh failed; While, therefore, they insist that shelter shall not be afforded to the pirates by nations in friendship with the United States, they, at the same time, are not unwilling to avoid grave debates concerning their rights that might survive the existing controversy. It remains only to say, in this connection, that the course which the United States are pursuing in their complaints to the government of the Netherlands is not peculiar to, but it is the same which has been and which will be pursued toward any other maritime power on the occurrence of similar grievances.

With these remarks I proceed to notice Baron Van Zuylen’s communication. You will reply to him that the United States unreservedly claim to determine for themselves absolutely the character of the Sumter, she being a vessel fitted out, owned, armed, sailed, and directed by American citizens who owe allegiance to the United States, and who neither have nor can, in their piratical purposes and pursuits, have or claim any political authority from any lawful source whatever.

The United States regard the vessel as piratical, and the persons by whom she is manned and navigated as pirates.

The United States, therefore, cannot admit that the Sumter is a ship of war or a privateer, and so entitled to any privileges whatever, in either of those characters, in the port of Curaçoa; nor can they debate any such subject with the government of the Netherlands.1

Mr. Pike expresses his satisfaction at the restrictions placed by the government of the Netherlands on the confederate vessels, but at the same time regrets that the same treatment should have been adopted toward the vessels of the United States; to which M. Van Zuylen replies that the United States Government having desired that measures should be taken to prevent the prolonged stay in Dutch ports of the Sumter or other vessels in the seceding States, the King’s government had admitted the justice of the claim, but that the measures taken could not reach one of the two parties exclusively; they must be general.

The new regulations led to a singular result. On the 8th of November the United States steamer Iroquois arrived off the port of Curaçoa; the governor informed Lieutenant Palmer, who was in command of the vessel, that her stay must be limited to forty-eight hours, and her supply of coal to twenty-four hours’consumption, although at the time the United States had more than 1,300 tons of coal at Curaçoa, which, by the way, shows that they had established a depot there. Lieutenant Palmer declined to enter the port on these terms, and his conduct in so doing was approved by Mr. Seward. Mr. Pike is directed to ask for explanations, with this remark from Mr. Seward:

If His Majesty’s government shall approve of the proceedings of the governor of Curaçoa, it will become an important question what measure of hospitalities will be due by us to the naval vessels and authorities of the Netherlands in similar cases.2

Thus, while the regulation was received with satisfaction by the United States Government, as a restriction on Confederate vessels, an attempt to enforce it against one of their own was looked upon as matter of grave offense. It so happened, however, that the Dutch government had, shortly before, on the suggestion of the governor of Curaçoa, revoked the order.

No sooner had this been done than the Government of the United States desired its restoration. Mr. Pike is instructed to lose no time in “calling the attention of Mr. Stratenus to the subject of the intrusion of insurgent piratical American vessels seeking shelter in the ports of the Netherlands and their colonies. If you cannot obtain a decree excluding them altogether, it is thought that the government will have no hesitation in restoring the restrictive policy which was adopted by it under the representatives of its foreign affairs by Baron Van Zuylen.”3

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Mr. Pike was at the same time instructed to call upon the King’s government to reconsider the subject of according to the Confederate States the character of belligerents, and, in the then state of affairs, to revoke the recognition.

Both proposals were declined by the King’s government. The inconsistency of the demand for the restoration of the restrictive order is pointed out by M. de Sombreff, the new minister of foreign affairs:

In this regard I permit myself to observe to you that I could not understand how your government could desire the re-establishment of measures which actually were, and would again be, applicable to both parties, and which were, at the time, the cause why the Union ship Iroquois would not enter the port of Curaçoa under the rule of said restrictive measures.

It was on that occasion that the last were modified, which was brought to your notice the 30th of December, 1861.

It follows, from advices which have since reached the government, that the new commander of the Iroquois has expressed himself well satisfied to find the precedent restrictive measures withdrawn, and thus to have the privilege of taking as much coal as he might wish. These measures are also favorable to Netherlands commerce with the United States, so that the interests of the two countries are in perfect accord.

If the instructions given before the month of December, 1861, were now returned to, the government of the Netherlands might not only be taxed, with good reason, with trifling, but would hurt its own interests, as well as those of the Union, considering that the consequence of said instructions would be, as has been remarked in the communication of Baron de Zuylen, dated October 29, 1861, that the vessels of war of the United States, also, could no longer be able to sojourn in the Netherlands East Indian ports more than twice twenty four hours, nor supply themselves with coal for a run of more than twenty-four hours.1

A similar correspondence had, in the mean time, been going on between the United States Government and that of Brazil, in consequence of the Sumter having, on the 7th of September, 1861, been allowed to enter the Brazilian port of Maranham, and to take in a supply of coal there, notwithstanding the protest of the United States consul. Mr. Webb, the United States minister at the court OF the Emperor, is instructed to “lose no time in calling the attention of the Emperor’s government to the affair.” Correspondence with Brazil.

You will ask explanations thereof, and, unless satisfactory explanations are rendered, you will then inform His Majesty’s government that the shelter and supplying of pirates, as the Sumter is sheltered and supplied, in the ports of Brazil, are deemed an unfriendly act by this Government, and will ask that such measures shall be taken in regard to the case as will make the governor of Maranham sensible of His Majesty’s displeasure, and will prevent a recurrence of such injuries to the United States hereafter.

I hardly need say that the proceeding at Maranham is an occurrence of great surprise and deep disquiet to the United States. That we have supposed that Brazil and every other state on the American continent have an interest second only to our own in the stability of the American Union, the downfall of which would, in our belief, inevitably be followed, sooner or later, by the decline and fall of every independent nation on this continent, which must in that case become once more a theater for the ambition of European powers.

Such respect for the sovereignty of the United States as one great nation owes to another is an indispensable condition of friendly relations with foreign powers in the present emergency. You will therefore take care not, for one moment, to admit into debate any question of claim on the part of the insurgents to any rights, whether as a sovereign or a belligerent.2

Mr. Webb thereupon addresses to Senhor Taques, the secretary of state for foreign affairs, a dispatch of prodigious length, but which ends with the pertinent inquiry:

Whether it is or is not the intention of the Brazilian government to permit the piratical letters of marque and privateers of the rebels of the United States to enter into the ports of Brazil, and there find succor and material aid—“provisions and coal—to continue their voyages” against the commerce of the United States?3

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Senhor Taques replied, as the Baron van Zuylen had done before him, in a most able paper, in which he reminded Mr. Webb of the numerous instances in which governments de facto had been admitted to the status of belligerents, although their sovereign character had not been acknowledged, pointing out that the recognition of belligerency carried with it the consequence that the commissioned vessels of the acknowledged belligerent could not be treated as pirates, but must receive the same treatment as those of the opponent.

The correspondence continued, and, owing to the exceeding fertility of Mr. Webb’s pen, assumes very formidable proportions. It led to the regulations which I have already mentioned; which regulations the Presidents of the provinces were ordered to enforce.

Mr. Seward reviews the correspondence with evident dissatisfaction:

We cannot admit, and we are not likely to admit, that anything has occurred to relieve Brazil, or any other power holding treaty relations with us, from fulfilling the obligations of friendship toward us, which it has heretofore voluntarily assumed; much less can we admit that any such nation has a right, by adopting a character of neutrality, to give hospitality, shelter, and supplies to pirates engaged in destroying our commerce, whether they affect to be public vessels of war, or are content to sail under cover of pretended letters of marque granted by the chief of their treasonable faction.

At the same time we are not looking out for causes of conflict with maritime powers. We state our complaints whenever grievances are committed by them, and we ask the redress due to us from friendly states. Unwilling to drag such powers into our own domestic strife, we are content with a practical respect for our flag, and we engage in no discussions with them about the unjust or unfriendly manifestations with which that practical respect is sometimes attended. Acting on this principle, we have brought to the notice of the Brazilian government the grievance committed against us by the governor of Maranham. That government, instead of giving us redress, or taking any measures to prevent a repetition of the grievance, has avowed and sanctioned it.1

In the position thus assumed, the Brazilian government stands single and alone. We cannot, with self-respect, further remonstrate nor debate. I confess that the attitude assumed by Brazil embarrasses us, because it tends to encourage our internal enemies. We trust, however, that we possess the ability to maintain and preserve our government against all enemies at home, however much aid and encouragement they may receive from abroad.

It is not needful that you state to the Brazilian government any part of the contents of this dispatch except its conclusions, which are these: 1st. We stand upon the position heretofore assumed, that the proceedings of the governor of Maranham are intolerable. 2d. We cannot further debate at Rio, nor can we change the field of the discussion from that capital to Washington. 3d. Conscious of our ability to protect all our national rights, we neither importune nor menace any foreign state which may deem it fit to do us wrong. But so fast as every such case matures we determine, with what prudence and firmness we can, the course which the emergency requires.2

Mr. Webb re-echoes:

We cannot go to war with all the world; and while circumstances compel us to acquiesce in the conduct of England, Spain, and Holland, we cannot insist upon reparation from Brazil for having adopted the same line of policy toward us.3

The Marquis d’Abrantes having succeeded Senhor Taques as minister of foreign affairs, in reference to Mr. Seward’s last dispatches writes, on the 16th of June, to Mr. Webb:

In view of the conclusions of the last of the dispatches referred to from the Government of the Union, the government of His Majesty the Emperor judges convenient to regard at an end the discussion of the subject it treats, it being flattering to observe that from it nothing has resulted in the least altering the relations of friendship and good understanding between the two countries which it so much interests both to maintain.

Hereupon Mr. Webb breaks out. After repeating verbatim the complaints set out in his letter of the 18th of March, he continues: [Page 333]

Here, as your excellency will perceive, is not only grave cause for complaint set forth, but a mode is pointed out in which the friendly relations heretofore existing between the two countries can be restored, viz, by a simple act of justice, reversing the decision which Brazil has hastily made. If Brazil cannot meet the reasonable expectation of the Government of the United States, then the Secretary of State, speaking in the name of the President and the Government, claims, at least, as a concession to the past friendly relations of the two countries, that Brazil will no longer occupy toward the United States a more unfriendly position than any other power; but, by following the example of other nations, place herself “on the same ground in relation to the United States which is occupied by other maritime powers, and thus mitigate the discontent” which it is made my duty to report to this Government.

But this is not all. In a dispatch from Washington, dated the 3d April, the undersigned is instructed to say to the government of His Imperial Majesty that the Government of the United States, standing “upon the position heretofore assumed,” declare “that the proceedings of the governor of Maranham are intolerable; and we cannot further debate at Rio, nor can we change the field of the discussion from that capital to Washington.”

And how are these complaints, remonstrances, and friendly intimations to Brazil, from the Government of the United States, received by the imperial government? Why, the undersigned is called upon to apprise his Government that Brazil has “put an end to this discussion upon the aforesaid subject,” and is happy to perceive that not “the least alteration will result from it in the relations of friendship and good understanding between the countries.”

Most assuredly these are not the results which the Government of the United States promised itself when it ordered the undersigned to place before the government of Brazil the dispatches of the 18th of March, and the very significant extract from that of the 3d of April; and while it is the duty of the undersigned to convey to his Government an answer so very different from what he anticipated, self-respect demands that he should not act as a mere automaton in the matter; and an earnest desire to restore and perpetuate the friendly relations which formerly existed between the two countries compels him to remind your excellency that so desirable a result cannot be obtained by utterly ignoring our complaints, by treating them as alike groundless and unmeaning, and by assuming that nothing has occurred to interrupt the good feelings or disturb the friendly relations between the two countries. The undersigned is grateful to a kind Providence that in what has occurred the existing friendly relations between the two governments have not been disturbed; but he is not unmindful that the good feelings upon which those friendly relations were based, and which is ever the best safeguard for their continuance, have been trifled with by the conduct of the governor of Maranham, and which conduct has been defended, sustained, and approved by your immediate predecessor, speaking in the name of the Imperial Government of Brazil.

The Government of the United States, for more than a year, has been actively engaged in putting down the greatest rebellion recorded in the history of the world. A civil war, which has called into the field more than a million of soldiers, and which imposed upon the Government of the United States the raising and equipping of an army of seven hundred thousand men, and a fleet of nearly five hundred vessels to do battle for our national existence, has called forth the energies and exhibited the resources of a mighty people; and yet, in the hour of greatest peril, our Government has not hesitated to tell the nations of the world which have done her wrong, when resistance to such wrong was impossible, that “the United States will not debate with other states a question vital to its own existence,” but content herself with pointing out the wrong done her, leaving for the present the expiation of such wrong and injury solely to the sense of justice and magnanimity of those who once styled themselves friends. Hence, as our Secretary of State justly says, “acting on this principle, we have brought to the notice of the Brazilian government the grievance committed against us by the President of Maranham.” That Government, instead of giving us redress, or taking measures to prevent a repetition of the grievance, has avowed and sustained it.

Hence the undersigned is instructed to say to the Brazilian government “that while the United States cannot ask Brazil for less than the absolute exclusion of pirates from her harbors, yet, standing as she does alone among nations, in the extent of her unfriendly attitude, if she would but place herself upon the same ground in relation to the United States which is occupied by other maritime powers, it would mitigate the discontent which you are authorized to express;” and, as if foreseeing the failure of this appeal to the friendship and justice of Brazil, the undersigned is ordered to say, in conclusion, that, “conscious of our ability to protect all our national rights, we neither importune nor menace any foreign state which may deem it fit to do us wrong; but so fast as every such case matures we determine, with what prudence and firmness we can, the course which the emergency requires.”

Inasmuch as the Government of the United States has definitively closed all further discussion of the affair of the pirate Sumter, either here or at Washington, nothing of the kind is intended in this dispatch; its sole object being to point out to your Excellency [Page 334] that, so far from nothing having occurred to disturb the good feeling upon which is based the friendly relations between the United States and Brazil, the whole course of your predecessor in relation to the visit of the pirate Sumter to Maranham, and the present attitude of Brazil towards the piratical vessels belonging to the rebel States and to our national vessels, is considered by the Government of Washington untenable, unjust, and “intolerable.”

It is quite unnecessary for the undersigned to repeat his ardent desire to draw closer and render more permanent the relations between the United States and Brazil, and the establishment by them of an “American policy,” in contradistinction to what is the recognized policy of Europe, as is being developed by interference with the internal affairs of Mexico; and he is pained to see all his efforts in this regard, and all the wishes of his Government, set at naught by the perseverance of Brazil in a course declared by the Government of Washington to be more unfriendly than that of any other foreign power; and by ignoring every fact, sentiment, and position taken in the Washington dispatches of the 18th March and 3d of April, and utterly refusing to perceive or admit that the United States feels aggrieved by the conduct of Brazil, and confidently expects that she will not persevere in maintaining a position more unfriendly than that of any other maritime power. Adherence by Brazil to her present unfriendly attitude is deprecated by the undersigned, not because he believes such a course calculated to cause a disruption of the peaceful relations existing between the two countries; there exists no such danger. The Government of the United States has demonstrated to the world that while struggling for its national existence against a gigantic rebellion, it can submit with grace and a not unbecoming humility to the irritating assaults made upon it in the hour of adversity, whether they emanate from ancient enemies or professed friends. But nations, like individuals, while they frequently forgive injuries, do not always forget them. And it is because perseverance in her present course by Brazil may induce the people of the United States to forget the friendly feelings upon which the existing peaceful relations between the two countries are based that the policy of your predecessor is deprecated.1

The discussion on this subject was revived in the ensuing year by the arrival of the Alabama, and shortly afterward the Florida and Georgia, in Brazilian ports. The first-named ship took two American vessels within Brazilian waters and burned them there. Notwithstanding which her commander was allowed to go on shore at the island of Fernando Noronha, and there to obtain supplies for the vessel and to land the prisoners. For this the officer commanding at Fernando de Noronha was displaced. The Florida was allowed to enter the port of Pernambuco, and there to refit and coal, in despite of the protest of the United States consul that the Florida was a pirate and the consort of the Alabama, which had just before violated the neutrality of Brazilian waters.

“Nevertheless,” says Mr. Webb, in writing to the Marquis d’Abrantes on the 21st of May, 1863—

Because her commander represented that the ship required repairs to her engine which could not be done within the twenty-four hours, the governor, in a communication to the pirate, now before the undersigned, dated the 9th of May, informed the applicant that, inasmuch as he represented to him that a compliance with his order to leave in twenty-four hours will compel him to do so in a distressed condition, because the repairs to his engine, necessary to his safety, cannot be completed in that time, and would be illiberal and inhuman, and expose him to danger, and Brazil to the consequences; and inasmuch as he, the governor, does not wish to be inhuman or illiberal, or endanger the safety of the pirate, or to lessen his means of defense, or to expose him to imminent risks, therefore, believing the representation to have been made in good faith, and that he cannot in safety continue his cruise, (against American commerce bound to Brazil,) unless given time to repair his engine, the said governor, representing the sovereignty of Brazil, and recognizing the traitors in rebellion, against the United States as belligerents, does accord to the commander of the pirate bearing their flag all the time he asks for repairs, and privileges of taking in such coals and provisions as may place him in a condition to continue his depredations upon the commerce of a friendly power. A grosser breach of neutrality has never come to the knowledge of the undersigned.2

He adds:

At this moment the ports of Brazil are made harbors of refuge and places of resort and departure for three piratical vessels, avowedly designed to prey upon the commerce [Page 335] of the United States. The waters of Brazil are violated with impunity in this piratical work, and after the imperial government had admitted and declared its indignation at such violation of sovereignty, the guilty party is received with hospitality and friendship by the governor of Bahia, and instead of being captured and imprisoned, and his vessel detained, he is fêted, and supplied with the necessary provisions and coal, to enable him to continue his depredations upon American commerce. The wharves and streets of Bahia and Pernambuco have been, for weeks past, swarmed with American sailors and passengers from merchantmen trading with Brazil which have been captured, and the persons on board robbed, by the pirates of the Alabama, Florida, and Georgia, and they have been compelled, in the ports of a friendly nation, to witness their clothing and jewelry, and even family relics, sold on the wharves and in the streets of Bahia and Pernambuco, by their piratical captors, at a tenth of their value; while the piratical vessels and all on board were received and treated as friends, and supplied with the necessary materials to continue their nefarious practices. The scenes which history informs us were rife in the seventeenth century, in the islands of the West Indies, are now being enacted in this nineteenth century in the ports of Brazil, and that through no fault of the imperial government—which has already done its whole duty as rapidly as circumstances have permitted—but because the governors of Pernambuco and Bahia, in their sympathy with piracy and pirates, have neglected their duty to Brazil, and brought discredit upon the civilization of the age.1

As regards the Alabama, which at this time had come into the port of Bahia, Mr. Webb insists that she should have been seized by the governor for her violation of Brazilian neutrality:

Your excellency will not for a moment deny that, having by your official acts, and those of the governor of Pernambuco, recognized the fact that this pirate has violated the waters and outraged the sovereignty of Brazil, it is your duty, when opportunity offers, to vindicate your violated sovereignty, and by his capture, if possible, remunerate the injury clone to American commerce within your waters. And should the pirate come into this port when the ability of Brazil to capture and detain him admits of no question, beyond all doubt the neglect to do so would be not only an unfriendly act toward the United States, but would render Brazil responsible for all and every aggression which he might commit on American commerce after leaving this port.2 * * * At this moment, the ports of Brazil are made harbors of refuge and places of resort and departure for three piratical vessels, avowedly designed to prey upon the commerce of the United States. The waters of Brazil are violated with impunity in this piratical work, and after the Imperial Government had admitted and declared its indignation at such violation of sovereignty, the guilty party is received with hospitality and friendship by the governor of Bahia, and instead of being captured and imprisoned, and his vessel detained, he is fêted, and supplied with the necessary provisions and coal, to enable him to continue his depredations upon American commerce.1

The Marquis d’Abrantes answers, as to the non-seizure of the Alabama, that the governor of Bahia had not sufficient information to warrant him in taking such a measure; as to the Florida and Georgia, by going over the same topics as his predecessor had done and with equal ability.

The government of Brazil did not seize the Alabama; but it did exclude that vessel from its ports for the future, for having made prizes in Brazilian waters, and applied the same rule to the Tuscaloosa as being a tender of the delinquent vessel.

It was immediately after this troublesome correspondence that the Imperial Government promulgated the rules contained in the circular of June 23, 1863, (set out in the 7th volume of American Documents, p. 110,) which, in point of stringency, far exceed what any other nation had ever thought it necessary to enact. The United States had never adopted any such rules, nor can it for a moment be said that Great Britain ought to be bound by them.

This is the country of which, in the argument of the United States it is stated, I presume in compliment to our distinguished Brazillian colleague:

In the American Case, and the documents to which it refers, there is sufficient indication [Page 336] of the loyalty and efficiency with which the Brazilian government maintained its sovereignty against the aggressive efforts of the confederates.1

A similar question arose with the Spanish government on the entry of the Sumter into Cadiz, with a requisition to have repairs done and to coal. After difficulties raised by the United States Representatives, permission was given, though the repairs were limited to what was absolutely necessary.2 Correspondence with Spain.

The same question arose with the French government when the Sumter put into St. Pierre, in the Island of Martinque, in November, 1861, and was permitted by the governor to coal which permission was afterward approved of by the French government.3 Correspondence with French government.

It arose in a still more striking form when the Florida put into Brest to repair and coal; as we shall see more fully hereafter when I come to the case of that vessel. Mr. Dayton, the United States minister at the court of France, objected to her being received or being allowed to have repairs done to her machinery, but his protest is in the more moderate tone of a statesman and a man of the world: we hear no more about “pirates;” his objection is that, being possessed of sailing power, the vessel did not require the aid of steam—an argument which was, however, overruled by the imperial council.4

This question was raised between the United States and Her Majesty’s government on the arrival of the Sumter, on the 30th July, 1861, at Trinidad, where she was allowed to coal and to remain six days in port. This was, in due course, complained of to Her Majesty’s government. Mr. Seward declaring that “the armament, the insurgent flag, and the spurious commission should have told the governor, as they sufficiently prove to Her Majesty’s government, that the Sumter is and can be nothing else than a piratical vessel.”5 Of course this argument did not prevail with Her Majesty’s government any more than it did with those of the Netherlands, France, or Brazil. Correspondence with British government.

It was obvious that the confederates having once been acknowledged as belligerents, the admission of their ships of war to the neutral ports and harbors followed as the necessary consequence.

The objection to the reception of these vessels took a somewhat different and more telling form in the case of the confederate ship the Nashville, which, having left the confederate port of Charleston, had been allowed to coal at Bermuda on her voyage to England.

On that voyage the Nashville committed one of those acts which stained this hateful warfare with eternal opprobrium—that of setting fire to a harmless trading-vessel and making her crew prisoners of war. This proceeding was made a ground by Mr. Adams, on the arrival of the Nashville, for claiming that the vessel should not be received into a British port. In terms of just and honest indignation he writes to Earl Russell:

The act of wilfully burning a private merchant-ship while pursuing its way quietly to its destination in its own country seems in itself little to harmonize with the general sentiment among civilized and commercial nations, even when it is committed under the authority of a recognized belligerent; but when voluntarily undertaken by individuals not vested with the powers generally acknowledged to be necessary to justify aggressive warfare, it approximates too closely within the definition of piracy to receive the smallest countenance from any Christian people. The undersigned cannot permit [Page 337] himself to doubt that Her Majesty’s government, which has voluntarily renounced the authority to wage private war at sea, would not fail to visit with its utmost indignation any attempts to seek shelter under its jurisdiction from the consequences of indulging a purely partisan malice in unauthorized acts of violence on the ocean.1

Mr. Morse, the United States consul at London, only expressed the public feeling when he wrote to Mr. Seward:

The leading event of the current week has been the appearance of the corsair Nashville, from Charleston, in European waters, and her wanton and malicious destruction of an American ship by burning about seventy-five miles west of Cape Clear, off the southern coast of Ireland, and her bold entrance into a British port for coal and repairs the clay following the committal of the barbarous act. It has, as a matter of course, created much comment, and no little excitement here.

So far as I can learn and judge, the public voice here is very strong and outspoken in condemning and denouncing the act as malicious and piratical. It has taken the English people by surprise, and is doing much to enlighten them as to the character of the enemy with whom we are dealing.2

But such an act could not be held to be sufficient ground of exclusion. However revolting such a system of warfare, it was still within the stern principle of international law, relative to war, which justifies both the seizure and the destruction of enemy’s ships and goods at sea, on the principle that whatever tends to impoverish the enemy is allowable. The practice had been sanctioned by the conduct of the United States themselves, in their last war with Great Britain.

When the civil war was over, it occurred to the United States Government that, though Captain Semmes had been admitted to parol as a prisoner of war, and could not therefore be proceeded against criminally under the law relating to treason, he might, nevertheless, be made amenable to the penal law for the destruction of ships and cargoes belonging to citizens of the United States. But the idea was abandoned, and Mr. John A. Bolles, Solicitor to the Navy Department of the United States, in an article bearing his name, in the July number of the “Atlantic Monthly,”3 under the title of “Why Semmes, of the Alabama, was not tried,” has fully explained the reasons, and among them has made us acquainted with the course pursued by the United States Government in the war with England in 1812 and 1813. The question, whether Semmes should be prosecuted or not, seems to have been referred by the President to Mr. Bolles and the law-officer of the Department, who appear to have entered upon and conducted the inquiry with a discrimination, ability, and sense of justice which do them infinite honor. In the article referred to Mr. Bolles, in the first place, observes that—

By establishing a blockade of confederate ports, our Government had recognized the confederates as belligerents, if not as a belligerent State, and had thus confessed that confederate officers and men, military or naval, could not be treated as pirates or guerillas, so long as they obeyed the laws of war; the same recognition was made when cartels for exchange of prisoners were established between the Federal and confederate authorities; and, above all, when the Federal Executive, after the courts had declared confederate privateersmen to be pirates, had deliberately set aside those judgments, and admitted the captured and condemned officers and men of the Savannah and the Jeff Davis, to exchange as prisoners of war.4

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This premised, Mr. Bolles writes:

Without consulting publicist or jurisconsult, it was easily possible to see and show that we as a Government, could not afford to prosecute and punish as a criminal any naval officer for capturing and destroying the enemy’s trading-vessels, as fast as possible, not only without any attempt to send them in for adjudication, but with a determined purpose and policy not to do so.

This conclusion was the result of a careful study of our own naval history, and of a thoughtful examination of future possibilities in the event of war between the United States and some great commercial nation.

I will not dwell upon this last division of the topic, but content myself with a reference to that past theory and practice of our naval warfare which rendered it impossible to punish Semmes for having learned and practiced so successfully the lesson taught by our own instruction and example in the Revolutionary War, when we were rebels, and in the last war (1812) with Great Britain.

The earlier records are imperfect; but enough can be gathered from our naval historian, Cooper, to show that many of the vessels captured in the war of the revolution were destroyed at sea.

Of the history and policy of the later period we have abundant proofs. Not less than seventy-four British merchantmen were captured, and destroyed as soon as captured, under express instructions from the Navy Department, and in pursuance of a deliberate purpose and plan, without any attempt or intent to send or bring them in as prizes for adjudication. The orders of the Department upon this subject are numerous, emphatic, and carefully prepared. They deserve to be studied and remembered; and they effectually silence all American right or disposition to complain of Semmes for having imitated our example in obedience to similar orders from the secretary of the confederate navy.

The instructions to which I refer were addressed to Captains David Porter and O. H. Perry, each in command of a squadron; to Captain Charles Stewart, of the Constitution, twice; to Captain Charles Morris, of the Congress; Commandant Lewis Warrington, of the Peacock; Commandant Johnstone Blakely, of the Wasp; Master Commandant Joseph Bainbridge, of the Frolic; Master Commandant George Parker, of the Siren; Master Commandant John O. Creighton, of the Rattlesnake; Lieutenant William H. Allen, of the Argus; Lieutenant James Renshaw, of the Enterprise; and Master Ridgely, of the Erie.

Extracts from the instructions of the Department, which led to these immediate burnings of captured vessels, will best show the precise purpose and deliberate policy of the Government. I will, therefore, quote brief passages from some five or six different orders as samples of all:

“The great object,” says one of them, “is the destruction of the commerce of the enemy, and the bringing into port the prisoners, in order to exchange against our unfortunate countrymen who may fall into his hands.” “You will, therefore, man no prize unless the value, place of capture, and other favorable circumstances, shall render safe arrival morally certain.” “You will not agree to the ransoming of any prize.” “Grant no cartel nor liberate any prisoners except under circumstances of extreme and unavoidable necessity.”

In another it is said: “You will, therefore, unless in some extraordinary cases that shall clearly warrant an exception, destroy all you capture, and, by thus retaining your crew and continuing your cruise, your services may be enhanced tenfold.”

“I have it in command from the President strictly to prohibit the giving or accepting, directly or indirectly, a challenge to combat ship to ship.”

Again: “Your own sound judgment and observation will sufficiently demonstrate to you how extremely precarious and injurious is the attempt to send in a prize, unless taken very near a friendly port and under the most favorable circumstances. * * Policy, interest, and duty combine to dictate the destruction of all captures, with the above exceptions.”

Another: “The commerce of the enemy is the most vulnerable point of the enemy we can attack, and its destruction the main object; and to this end all your efforts should be directed. Therefore, unless your prizes should be very valuable and near a friendly port it will be imprudent and worse than useless to attempt to send them in; the chances of recapture are excessively great; the crew, the safety of the ship under your command, would be diminished and endangered, as well as your own fame and the national honor, by hazarding a battle after the reduction of your officers and crew by manning prizes. In every point of view, then, it will be proper to destroy what you capture, except valuable and compact articles, that may be transshipped. This system gives to one ship the force of many.”

Another order says that “a single cruiser, if ever so successful, can man but a few prizes, and every prize is a serious diminution of her force; but a single cruiser destroying every captured vessel has the capacity of continuing, in full vigor, her destructive power, so long as her provisions and stores can be replenished either from friendly [Page 339] ports or from the vessels captured. * * * Thus has a single cruiser, upon the destructive plan, the power, perhaps, of twenty acting upon pecuniary views alone; * * * and thus may the employment of our small force in some degree compensate for the great inequality [of our force] compared with that of the enemy.”

Such were the policy and the orders of President Madison and of the Secretary of the Navy in 1812, 1813, 1814; and such, beyond question, would he the plan and the instructions of any administration under the circumstances.1

In conclusion Mr. Bolles says:

It is evident that after it had been, as it soon was, resolved that neither treason nor piracy should be charged against Semmes before a military or naval tribunal, and that his methods of capturing, “plundering,” and destroying vessels should not be treated as offenses against public law and duty, but that he should be dealt with as a belligerent naval officer, bound to obey the laws of war and entitled to their protection, it was needless to inquire where or by whom the Alabama was built, manned, armed, or commissioned, or whether a government without an open port can legitimately own or employ a naval force. These inquiries, however interesting or important they might be in other connections, were of no sort of interest or importance as elements of a trial for violating the laws of war in the conduct of a cruiser subject to those laws and protected by them.

In this way the field and the duty of inquiry were reduced to the two subjects of cruelty to prisoners and perfidy toward Captain Winslow and the power he represented.

The two questions thus left are dealt with by Mr. Bolles in the following number of the same review, in a most interesting paper, the result being wholly to exculpate Semmes of every charge of ill treatment or cruelty to prisoners, to acquit him of any charge of perfidy during the engagement with the Kearsarge, but to maintain that he was guilty of a violation of military honor in not surrendering himself as a prisoner of war after being taken off by the Deerhound.

Regulations of June 1, 1861. The British government having thus decided on acknowledging the Confederate States as a belligerent power, and, as a necessary consequence, on the admission of confederate ships of war into British ports on the same footing as those of the United States, it only remains to be seen whether the same treatment was afforded to both which impartial neutrality would require.

On the 1st of June, 1861, Her Majesty’s order was issued prohibiting, as has not been unusual in the case of modern maritime wars, and has been general with reference to privateers, the introduction of prizes by the ships of either belligerent into British ports.2 Whatever may, generally speaking, be the motive of such a regulation, it was, in the present instance, obviously a measure the effect of which was to place the confederate vessels in a position of considerable disadvantage, seeing that, their own ports being strictly blockaded, they were thus left without any port into which to take their prizes. Accordingly, as reported in a dispatch from Lord Lyons to Earl Russell, of the 17th June, 1861, it was hailed by Mr. Seward as “likely to prove a death-blow to southern privateering.” As it was clearly at the discretion of Her Majesty’s government to adopt this regulation or not, it must be admitted that, thus far, there was no manifestation of the partiality by which that government has been said to have been animated.

Regulations of 31 January, 1862. In January, 1862, after the war had been going on for some months, circumstances arose which made further regulations as to the admission of the armed vessels of the two belligerents into British ports necessary. Instructions, bearing date the 31st January, 1862, were accordingly issued by the Government.2 One of these had reference to the ports of the Bahamas in particular, the others to the ports and waters of Her Majesty’s dominions in general.

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As to Nassau. The following state of things had arisen at Nassau. As has been so often repeated, the port of Nassau had been made the entrepôt for the blockade-running trade, the natural consequence of which had been that the waters of the colony were watched by, and their immediate vicinity made the cruising-ground of, Federal ships.

In October, 1861, Mr. Adams forwarded to Lord Russell an intercepted letter from a Mr. Baldwin, whom he stated to be in the service of the insurgents, addressed to a Mr. Adderley, of Nassau, from which he said that it appeared that Nassau had been made, to some extent, an entrepôt for the transmission of contraband of war from Great Britain to the blockaded ports.1 The matter was referred by Lord Russell to the colonial office, and by that Department to the governor of the colony, and the latter forwarded, in reply, on the 20th November, 1861, a report from the receiver-general at Nassau, stating that no warlike stores had been received at that port either from the United Kingdom or elsewhere, nor had any munitions of war been shipped from Nassau to the Confederate States.2 This report, received by Lord Russell on the 31st of December, was communicated to Mr. Adams on the 8th of January, 1862.3

Upon this the Case of the United States makes the following remark:

The United States with confidence assert, in view of what has been already shown, that, had Earl Russell seriously inquired into the complaints of Mr. Adams, a state of facts would have been disclosed entirely at variance with this report—one which would have impelled Her Majesty’s government to suppress what was going on at Nassau. The foregoing facts were all within the reach of Her Majesty’s government, although at that time not within the reach of the government of the United States. The failure to discover them after Mr. Adams had called attention to them, was a neglect of the diligence in the preservation of its neutrality, which was “due” from Great Britain to the United States; and it taints all the subsequent conduct of Great Britain toward the United States during the struggle.4

Further on. Lord Russell’s communication is described as the “announcement of an imaginary condition of affairs;”5 thus making it appear that, at the date of Lord Russell’s communication, the report received from Nassau and transmitted by him was an unfaithful one; whereas the fact was that, at the date of the report, no vessel laden with munitions of war had arrived at Nassau.

It was not till the 8th of December that a vessel, the Gladiator, with a cargo of arms, suspected of being intended for the Confederate States, arrived at Nassau. The United States consul at once sent a message to the commander of the United States naval forces at Key West to request the presence of a cruiser.6 On the 13th of December he reports the “most opportune” arrival of the United States war-steamer Flambeau from New York, and adds that her commander “is watching intently the movements of the rebel steamers.”7 From a letter addressed by the governor to the British naval officer on the station it appears that the Flambeau kept her steam up ready for instant movement, causing considerable alarm among the shipping in the port; and that a rumor prevailed that her commander meant to cut out the Gladiator, or, at all events, to seize that vessel immediately on her leaving.8

The dispatches reporting this state of affairs were received in London [Page 341] on the 16th of January, and the attention of the British government was necessarily called to the peculiar position of the Bahama Archipelago. On the one hand, it was obvious that it would form a convenient place of resort for confederate privateers; while, on the other, it seemed likely that its ports and waters would be used by the United States war-vessels for the purpose of watching and pursuing confederate vessels or others engaged in trade with the blockaded ports, so that collisions in the waters of the colony or in their immediate neighborhood would be almost certain to result. To prevent this it was necessary to provide some special regulation.

About the same time the Nashville confederate war-steamer having put into the port of Southampton for repairs and coal, the United States war-steamer Tuscarora, which had coaled at the same port, was found to be closely watching her, for the avowed purpose of intercepting and seizing her on her again putting to sea. By keeping his steam up, and keeping slips on his cable, the commander of the Tuscarora was virtually keeping the Nashville blockaded, thus plainly making the waters of the Solent the base of naval operations.1

Upon this M. Calvo, in the second volume of his well-known work, “Le droit international,” after stating the facts relative to the two vessels, says: “La corvette fédérale la Tuscarora entra dans le même port pour surveiller son ennemi, et l’attaquer dès qu’il reprendrait la mer. Devantcette attitude hostile les autorités locales intervinrent, et la Tuscarora, abandonnant son post d’observation sans toutefois renoncer à ses projets, resta près d’un mois dans les eaux anglaises au mépris des règles les moins contestées du droit international.”2

In the preceding November, after the reception of the Sumter at Trinidad, Mr. Seward had, through Lord Lyons, pressed upon the British government the propriety of adopting the rule laid down, as he said, by the other powers of Europe, not to allow privateers to remain for more than twenty-four hours in their ports.3

Such a rule, relating exclusively to privateers, was not one which Her Majesty’s government were at all called upon to apply to commissioned ships of war such as the Sumter any more than the other maritime powers had done—Mr. Seward being, in this respect, altogether mistaken, as was shown by the readiness with which the other maritime powers received the confederate vessels of war into their ports and allowed them to stay there. Still, when, to prevent the possibility of hostile collisions in their own ports, the British government found it expedient to apply this rule to vessels of war indiscriminately, they might be assured that in doing so they would give cause of satisfaction rather than of complaint to the United States Government.

The instructions issued were to the following effect: 1. No ship of war or privateer of either belligerent was to be permitted to enter any port, roadstead, or water in the Bahamas except by special leave of the lieutenant-governor, or in case of stress of weather; and in case such permission should be given, the vessel was, nevertheless, to be required to go to sea as soon as possible, and with no supplies except such as might be necessary for immediate use. 2. No ship of war or privateer of either belligerent was to be permitted to use British ports or waters as a station or place of resort for any warlike purpose, or for the purpose of obtaining any facilities of warlike equipment. 3. Such ships or privateers entering British waters were to be required to depart [Page 342] within twenty-four hours after entrance, except in case of stress of weather, or requiring provisions or things for the crew or repairs; in which cases they were to go to sea as soon as possible after the expiration of the twenty-four hours, taking only the supplies necessary for immediate use; they were not to remain in port more than twenty-four hours after the completion of necessary repairs. 4. Supplies to such ships or privateers were to be limited to what might be necessary for the subsistence of the crew, and to sufficient coal to take the vessel to the nearest port of its own country, or to some nearer destination; and a vessel that had been supplied with coal in British waters could not be again supplied with it within British jurisdiction until after the expiration of three months from the date of the last supply taken from a British port.

With reference to the regulation concerning Nassau, the case of the United States has the following remark:

An order more unfriendly to the United States, more directly in the interest of the insurgents, could not have been made even if founded upon Heyliger’s friendly intimations to the colonial authorities. Under the construction practically put upon it, the vessels of war of the United States were excluded from this harbor for any purpose, while it was open for free ingress and egress to vessels of the insurgents, purchased or built and owned by the authorities at Richmond, bringing their cotton to be transshipped in British bottoms to Fraser, Trenholm & Co., in Liverpool, and taking on board the cargoes of arms and munitions of war which have been dispatched thither from Liverpool.1

And in another place it is observed:

The instructions of January 31, 1862, forbade both belligerents alike to enter the port of Nassau, except by permission of the governer, or in stress of weather. That permission was lavishly given to every insurgent cruiser, but was granted churlishly, if at all, to the vessels of the United States.2

How devoid of all foundation are these complaints will appear from the facts stated in the British Counter Case, where it is observed:

It will perhaps be a matter of some little surprise to the tribunal to learn that, whereas on two occasions only did vessels visit the port of Nassau as confederate cruisers, there are no less than thirty-four visits of United States ships of war to the Bahama Islands recorded during the time that the regulation was in force. On four occasions, at least, vessels of the United States exceeded the twenty-four hours’ limit, and took in coal by permission; one of them also received permission to repair; several were engaged in pursuit of vessels suspected of being blockade-runners, and did not in every instance relinquish the chase within British limits. Two prizes appear, indeed, to have been captured by them, one within a mile of the shore, the other almost in port.3

The tabular statement of visits of United States vessels to the Bahamas during the civil war, which is printed in the British Appendix, abundantly bears out the answer thus given.4

The general regulations applicable to all Her Majesty’s ports, which, as we have seen, were in conformity with the wishes of the United States Government, though not intended by the British government to have any operation more favorable to one belligerent than the other, nevertheless could not fail to prove very prejudicial to the confederates, the strict blockade of whose ports left their ships of war without any ports to which they could resort for repairs or supplies, or into which they could take their prizes. The rule forbidding them a greater supply of coal than would suffice to take them to their nearest port, and prohibiting also a renewal of the supply within three months, was obviously calculated to place them at the greatest possible disadvantage. Compelled, from having no ports of their own, to keep the sea, their means of doing so were necessarily lessened, and the regulation, in itself [Page 343] so unfavorable to the confederate vessels, was rendered still more so by the strict construction put on it by Her Majesty’s government, by whom the governors of the different colonies were instructed that, in case of any special application for leave to coal at a British port within the three months, if it appeared that any part of the former supply had been consumed otherwise than in gaining the nearest port, not even stress of weather should form a ground of exception.1 As no confederate vessel could seek its nearest port, this was practically to prevent the possibility of a renewed supply under any circumstances within the three months.

The attempts on the part of the United States to show that any favor was extended to confederate cruisers which was withheld from their own vessels, appear to me signally to fail.

The only specific instances in which any complaint has been made (and if there had been any others we may be quite sure we should have heard of them) are the cases of the Keystone State, Quaker City, and the Dacotah. As to the first two, the answer given in the British Counter Case, on the authority of a letter from the governor of Bermuda to the secretary of state for the colonies, and which is further borne out by the letters of the commanding officers of the vessels themselves, is as follows:

An allusion is made in a foot-note at page 324 of the Case of the United States, to the failure of the United States vessels Keystone State and Quaker City to obtain coal at Bermuda in December, 1861. At that time there was no restriction on the coaling of belligerent vessels. All that happened was, that the British admiral declined to supply the two vessels mentioned from the government stores, not having a sufficient stock for his own vessels. A similar answer had, in the foregoing October, been returned to the commander of the Nashville, who had supplied himself from private sources, but this, on account either of the scarcity or the high price of coal in the colony, the United States officers did not do.2

As regards the Dacotah, which was allowed to supply herself with coal at Nassau, but only on an engagement from her commander that his vessel should not, within ten days after leaving the port, be found cruising within five miles of any of the Bahama Islands, Governor Bayley, in a letter to the secretary of state for the colonies, of the 2d May, 1863, states:

I have no distinct recollection of the special reasons which induced me to impose the restrictions mentioned by the consul in the Dacotah’s coaling; I can only suppose that I did this in consequence of the pertinacity with which Federal vessels about that time resorted to the harbor on pretense of coaling, but really with the object of watching the arrival and departure of English merchant-vessels, supposed to be freighted with cargoes for the southern ports. Had not such prohibition been issued, the harbor would have become a mere convenience for Federal men-of-war running in and out to intercept British shipping. And that such conditions as I thought it my duty to impose were tempered by a proper feeling of courtesy and humanity will, I think, be made evident by the accompanying letters from the American consul on the subject of the Federal man-of-war, the R. Cuyler, and the memoranda of my replies indorsed upon them by myself.

On the whole, I am satisfied that I have acted with perfect impartiality in all my dealings with Federal and confederate men-of-war. But I am not surprised that my conduct should have been misrepresented by so hot-headed a partisan as the late American consul, Mr. Whiting, whose ingenuity in misconstruction is well illustrated by his reply to my letter of the 29th of September, of both of which papers I inclose copies, with the indorsation of the draught of my replies to his last communication.

I think that these inclosures will be sufficient to prove that, in my demeauor to the Federal men-of-war, I have generally preserved an attitude of fairness and impartiality. And that if at any time I have appeared to assume an unfriendly or inhospitable [Page 344] mien, the charge can be fully explained and defended by my desire to maintain the security of a British possession and the rights of British subjects.1

Alleged partiality as to coaling. Another subject of complaint is that partiality, inconsistent with neutrality, was exhibited toward confederate vessels by reason that these, as in the case of the Sumter, were permitted to coal, while liberty to form a depot of coal at Bermuda, for the supply of their ships of war, was denied to the United States. I cannot suppose that any member of this tribunal could be misled by such a contention. It is obvious that to allow one belligerent to have a supply always stored up and ready, and to leave the other to take his chance of the public market, are things essentially different, and that, far from the refusal of such an advantage to the United States being a violation of neutrality, the concession would have been so in the opposite direction. Moreover, such an act involves a forgetfulness of one of the elementary principles of international law. A neutral is only justified in allowing to a belligerent vessel the use of his ports and access to his shores to obtain the things which the belligerent may lawfully procure. He has no right to allow the belligerent the use of his territory on shore for belligerent purposes, which the permission to form a depot would necessarily involve.

The practical answer to all these complaints is to be found in the striking facts, stated in the British Counter-Case, with reference to the number of visits to British ports by the ships of war of the two belligerents, and to the quantity of coal received by them respectively. The statement in question as follows:

During the course of the civil war, ten confederate cruisers visited British ports. The total number of such visits was twenty-five, eleven of which were made for the purpose of effecting-repairs. Coal was taken in at sixteen of these visits, and on sixteen occasions the limit of stay fixed by the regulations was exceeded. In one of these cases, however, the excess was no more than two hours, and in another, the delay was enforced in order to allow twenty-four hours to elapse between the departure of a United States merchant-vessel and that of the confederate cruiser. On the other hand, the returns which have been procured of visits of United States vessels of war to ports of Great Britain and the colonies, though necessarily imperfect, show an aggregate total of 228 such visits. On thirteen of these repairs were effected; on forty-five occasions supplies of coal were obtained; and the twenty-four hours’ limit of stay was forty-four times exceeded. The total amount of coal obtained by confederate cruisers in British ports during the whole course of the civil war, though it cannot be ascertained with accuracy, may be estimated to have amounted to about 2,800 tons. The aggregate amount similarly supplied to vessels of the United States cannot be estimated, from the want of data as to the supplies in many cases, but those cases alone in which the quantities are recorded, show a total of over five thousand tons; and this, notwithstanding the United States navy had free access to their own coaling depots, often close at hand. In one case a vessel of war of the United States, the Vanderbilt, alone received 2,000 tons of coal at different British ports within the space of less than two months, being more than two-thirds of the whole amount obtained from first to last by confederate vessels.2

Supplies of arms obtained from Great Britain. The second head of complaint has assumed a more sensational and effective form, in representing Great Britain as “the arsenal, the navy-yard, and the treasury of the insurgents.” Again and again has this highly colored representation been paraded. Let us see what, when stripped of rhetorical flourish, it really amounts to.

Having determined to support their effort to establish their independence by war, the confederates of course required arms and munitions of war. Both were to be had in Great Britain in abundance. The commercial relations of the Southern States had been principally with Great Britain. It was natural that in Great Britain that they should seek the arms which were so essentially necessary to them. But arms and munitions [Page 345] of war are not to be had for nothing. It was necessary, therefore, that arrangements should be made for the deposit of funds in England to pay for the articles bought there. To carry on these operations—to purchase the articles required, to pay for them, to ship them—agents were, of course, necessary. Agents were accordingly established in England and provided with the necessary funds. Thus far, no one can say that there was anything contrary to the law of nations, or to the municipal law, or to obligations morally incumbent on a neutral government or a neutral people. As Jefferson said more than three-quarters of a century ago:

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.

Substitute Her Majesty’s proclamation and Her Majesty’s subjects for the American phraseology, and the cases are identically the same.

But had the United States no arsenal in Great Britain? As we have seen, arms and munitions of war were purchased by the United States in Great Britain to the amount of £2,000,000 sterling. Several agents, Colonel Thomas, Colonel Schuyler, Mr. J. R. Schuyler, Mr. Tomes, were sent over to order and select the arms, and forward them to the United States.

It appears from the British Counter Case, and the documents therein referred to, that—

Colonel Thomas, of the United States Army, was in England during the war, and came over to England to superintend the purchases of military stores. Colonel G. L. Schuyler 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 bayonets, 10,000 cavalry carbines, 10,000 revolvers, and 20,000 sabers. The financial arrangements for these purchases were to be made by the Secretary to the Treasury with Messrs. Baring, financial agents for the United States in London, and a credit of $2,000,000 was appropriated for the purpose.

In the summer or autumn of 1861, Mr. J. R. 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 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, 1862, 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 Mr. Lockwood, 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.

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A Mr. Laumont Dupont also came to England, furnished with a credit of £82,800 on Messrs. Baring, and purchased and shipped saltpeter to the amount of very nearly £80,000.

Messrs. Naylor, Vickers & Co., of New York, Liverpool, and London, bought and shipped 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, were 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 1862.1

Warehouses were openly taken at Birmingham for the reception of arms when completed, after which they were shipped through the agency of Messrs. Barings and of Brown, Shipley & Co., and Wright & Co., of Liverpool.

Had the United States no treasury in Great Britain? No less a one than the great house of Baring Brothers, with whom large credits were opened. The house appears to have been energetic in its efforts in furthering the United States armaments. “You will please express my acknowledgments,” writes the United States Secretary of War to Mr. Schuyler, “to Messrs. Baring Brothers & Co., for their prompt and patriotic action in facilitating your operations. The terms offered by Messrs. Baring Brothers & Co., namely, 1 per cent. commission and 5 per cent. interest per annum, as agreed upon by them with the Navy Department, are approved.”2

Of course the “prompt and patriotic action” of Baring Brothers & Co. was in perfect conformity with neutral duties. But, what would have been said, if that great and wealthy house, its leading member having an influential voice in the House of Commons, had undertaken and exhibited equally “prompt and patriotic action” in facilitating confederate operations on the terms of 1 per cent. commission and 5 per cent. interest? or, was there to be one law for the United States and another for the confederates? Her Majesty’s government did not think so, and Great Britain remained an arsenal for the latter as well as for the former.

Next as to Great Britain having been, as it is said, “the navy-yard of the insurgents.”

Ships obtained from Great Britain. It was, of course, impossible to prevent the confederate government, reduced to desperate straits by the blockade, and in want of ships of war, from resorting to the ship-builders’ yards of Great Britain. It was impossible to prevent the ship-builders, who looked upon the furnishing of such vessels as purely commercial transactions—the Messrs. Laird who built the Alabama having been perfectly willing, as appears from their correspondence with a Mr. Howard, who professed to have authority to enter into a contract with them, to build [Page 347] vessels for the Federal Government, to supply ships to the latter as well as to the insurgents—and who appear to have thought that, so long as the ships were not armed in British waters, such transaction would not be within the foreign-enlistment act—from entering into such contracts. All the government could do was to use reasonable care to see that the act was not violated.

Steps taken by the British Government. Two-vessels of war, and two only, the Florida and the Alabama, equipped in British waters, found their way into the hands of the confederates. Whether, in respect of them, the British authorities were wanting in due diligence, will be matter for future consideration, when these vessels come specifically under review. The most unjustifiable charge that the government were willfully wanting in the discharge of their duty from motives of partiality has, I hope, been already disposed of. Every other vessel built or equipped in British waters for the war service of the confederate government was prevented by the act of the British government from coming into their hands. Immediate and untiring attention was paid to the frequent applications of Mr. Adams, which for the most part turned out to have proceeded on erroneous information. It may have been that, in the cases of the Florida and the Alabama, the local officers may have been somewhat too much disposed to leave it to the United States officers to make out the case against the vessels. But such, as we have seen, had been the traditional view of the matter, not only in England but in the United States. These officers may have attached too much importance to the fact that the vessels, though equipped for receiving arms, were not actually armed before leaving the port. In that they only shared the opinion of two distinguished judges in the court of exchequer. But when the authorities had become thoroughly alive to what was going on, no vessel of war to which the notice of the Government was called, and which proved to be intended for war, was suffered to escape. An enumeration of the instances on which inquiry was instituted by Her Majesty’s government, with the results, will set this part of the case in its true light, and show the flagrant injustice of the wholesale accusations which have been so unwarrantably made.

The Bermuda. The first case in which a representation was made by Mr. Adams as to a vessel supposed to be fitting out in England for warlike purposes against the United States, in violation of the foreign enlistment act, was that of the Bermuda. Mr. Adams’s letter was dated the 15th of August, 1861. The principal grounds of suspicion alleged against the vessel were that she was “ostensibly owned by the commercial house of Fraser, Trenholm & Co., of Liverpool, well known to consist in part of Americans, in sympathy with the insurgents in the United States;” that she was armed with guns, and had been for some time taking in crates, cases, and barrels, believed to contain arms and ammunition of all kinds ordinarily used in carrying on war. Mr. Adams continues:

This cargo is nominally entered as destined to Havana, in the island of Cuba, but her armament and cargo are of such a nature as to render it morally certain that the merchants who claim to be the owners can have no intention of dispatching her on any errand of mercy or of peace.

I am informed that this vessel will sail in a day or two; I therefore feel under the highest obligation to submit the information I have obtained as the ground for application for a prompt and effective investigation of the truth of the allegations while there is time. Not doubting the earnest disposition of Her Majesty’s government faithfully to adhere to the principles of neutrality to which it has pledged itself, I ask, on the part of the United States, for no more than a simple enforcement of the law, in case it shall appear that evil-minded persons are seeking to set it at naught.1

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Mr. Adams, it would seem, entertained none of those notions of the duty or the necessity of having recourse to prerogative force in order efficiently to observe the obligations of neutrality, of which we hear so much in the argument of the United States.

Inquiry was at once made by the government. The collector of customs at West Hartlepool, where the vessel was, reported the next day as follows:

Finding, from a communication which I had seen from the American consul at Leeds to his broker here, that the steamer in question was suspected to be fitting out at this port for the purpose of being used as a privateer for the Confederate States, I have been keeping an eye on her, but I see nothing to indicate such to be her object, either as regards her external equipments, or the character of her crew, or anything in her case more than usual to give ground for remark, unless it be the circumstance that a large portion of her cargo consists of arms and ammunition; and it is possible that, although the destination of the vessel ostensibly is Havana, it may be the design eventually to run some if not the whole of the goods on board into the States referred to.2

The rest of the information collected pointed to a similar conclusion, and Mr. Adams was accordingly informed, on the advice of the attorney-general, that the vessel did not come within the terms of the foreign-enlistment act, (to which, in his letter, he had referred,) and that there was no ground for any interference with the clearance or departure.

The Bermuda turned out, in fact, to be a blockade-runner. She sailed from Liverpool with cargo for Savannah, and succeeded in entering that port and returning to Liverpool. On her second voyage she was captured by a United States ship, and condemned as prize.

The next cases in order of time to which Mr. Adams called the attention of the British government were those of the Oreto or Florida, and of the Alabama, originally known as No. 290. As I shall have to enter in detail into the facts connected with these vessels further on, I will not here allude to them more particularly.

The Georgiana. On the 16th January, 1863, Mr. Adams made a representation to Earl Russell respecting the Georgiana, a vessel built at Glasgow, and then fitting out at Liverpool, which he stated he “had reason to believe was intended to pursue a similar course with that formerly called No. 290—to wit, the destruction of the commerce of the United States.” Mr. Adams inclosed a letter from the United States consul in London, “giving,” as he said, the “particulars based upon credible information received by him, the authority for which it is not in his power to disclose,” and he thus concludes his letter:

I therefore solicit the interposition of Her Majesty’s government, at least so far as to enable me to procure further evidence to establish the proof of the allegations here made in season for the prevention of this nefarious enterprise.2

Lord Russell informed Mr. Adams on the following day, the 17th, that he had communicated copies of his letter and its inclosure to the board of treasury and to the secretary of state for the home department without delay, and had requested that orders might be sent by telegraph to the proper authorities at Liverpool, enjoining them to take such steps in the matter as might legally be taken. He added:

I think it right however, to observe that Her Majesty’s government cannot be answerable for any difficulty which may be experienced in carrying out those orders, in consequence of the evidence on which the statement of the United States consul is made being withheld from them.3

Inquiries were accordingly made, both by the customs officers and by the detective police at Liverpool, but it was found that the vessel was not in any way adapted for warlike purposes, and that from the nature [Page 349] of her build, her cargo, and other attendant circumstances, she seemed to be intended to run the blockade; and such, in fact, proved to be the case.

1 British Appendix, vol. ii, p. 134.

Vessels at Glasgow. On the 21st of March, 1863, Lord Russell wrote to Mr. Adams “with reference to a report that vessels of war were being built at Glasgow for the so-styled Confederate States; that it appeared from information collected by the commissioner of customs that there were only two large steamers in course of construction at the yard of Messrs. Thompson & Co.; that one of them had the appearance of being constructed to receive armor-plates, but that the bottom was not more than half plated, and that the planking of her top-sides had only just commenced.” The other, Lord Russell wrote, was a screw-steamer intended to be employed in the Mediterranean trade, but neither of these vessels could be completed for several months.1

In forwarding this letter to Mr. Seward, Mr. Adams stated:

It is proper to mention that the investigation appears to have been initiated by his lordship upon information not furnished from this legation, and that Lord Russell’s communication to me was perfectly spontaneous.2

Mr. Adams’s letter of acknowledgment to Earl Russell is as follows:

My Lord: I had the honor to receive your lordship’s note of the 21st instant, apprising me of the preparations making in the yard of Messrs. Thompson & Co. of a vessel evidently constructed for hostile purposes.

Information of the same nature received from other sources has led me to a belief that this is one of a number intended to carry on the piratical species of warfare practiced by the insurgents against the commerce of the United States, in accordance with the plans laid down in the intercepted correspondence which I had the honor some time since to lay before you. It is a source of much gratification to me to learn that this proceeding is exciting the attention of Her Majesty’s government.3

The intercepted correspondence alluded to by Mr. Adams had been forwarded by him to Earl Russell on the 9th of February, 1863.4 It related to arrangements for the issue of a loan in England, on account of the confederate government, for the export of munitions of war to the Confederate States, and also to a supposed contract made by the confederate navy department with a Mr. Sanders, for the construction in England of six iron-clad steamers, combining the capacities of freighting and fighting ships, in a manner which could enable them to force the blockade. A correspondence ensued in which Lord Russell denied that the papers proved any overt acts against the law which warranted a criminal prosecution of the parties concerned. He added, however, in a note of the 2d of April, 1863, that—

In view of the statements contained in the intercepted correspondence, Her Majesty’s government have renewed the instructions already given to the custom-house authorities of the several British ports where ships of war may be constructed, and by the secretary of state for the home department to various authorities with whom he is in communication, to endeavor to discover and obtain legal evidence of any violation of the foreign-enlistment act with a view to the strict enforcement of that statute whenever it can be readily shown to be infringed, and Her Majesty’s government would be obliged to yon to communicate to them, or to the local authorities at the several ports, any evidence of illegal acts which may from time to time become known to you.5

The Phantom and Southerner. On the 26th of March, 1863, Mr. Adams wrote to Earl Russell, forwarding an extract of a letter from Mr. Dudley, the United States consul at Liverpool, on the subject of two vessels, the Phantom and the Southerner, which the consul believed to be intended for confederate cruisers.6 The principal reason for Mr. Dudley’s [Page 350] suspicions seems to have been the connection of the firms of Fraser, Trenholm & Co., and Fawcett, Preston & Co., with these vessels. He says at the end of the letter: “I suppose it will be impossible for me to obtain legal evidence against these two vessels, and nothing short of this will satisfy this government.” Even of the information furnished by Mr. Dudley, part—namely, that the last-named of these two vessels, the Southerner, had arrived at Liverpool—was erroneous, and was corrected by Mr. Adams in his note, according to later advices received from Liverpool.

Mr. Adams was informed on the following day that immediate inquiry would be made on the subject, and inquiries were accordingly at once made, as in the case of the Georgiana, both through the customs authorities at Liverpool and by means of detective police officers, as to these two vessels. They failed to produce any evidence against them, and indeed one of them turned out to be a blockade-runner, and the other was afterwards engaged in trade in the Mediterranean. In acknowledgment of the steps which had been taken, Mr. Adams wrote as follows to Earl Russell on the 6th of April, 1863:

It is a source of great satisfaction to me to recognize the readiness which Her Majesty’s government has thus manifested to make the investigations desired, as well as to receive the assurances of its determination to maintain a close observation of future movements of an unusual character that justify suspicions of any evil intent.1

The Alexandra. On the 28th March, 1863, Mr. Dudley, the United States consul at Liverpool, wrote to the collector of customs at that port, forwarding six depositions relative to a vessel called the Alexandra, and applying for her seizure. Copies of these depositions were also forwarded to Earl Russell, by Mr. Adams, on the 31st of March; and after further inquiry by the authorities, the ship was seized on the 5th of April. Mr. Adams, being informed of this step, wrote on the 6th of April to Earl Russell to express his “lively satisfaction.”2

The history of this vessel is well known. The proceedings which were instituted by the government in the proper court, failed, under the direction of the lord chief baron to the jury that, to establish the intention that the vessel had been equipped for the purpose of war, it was necessary that she should have been armed, as well as fitted for the reception of guns. The jury having given a verdict against the Crown, the application to the court of exchequer for a new trial, on the ground of misdirection of the judge in so directing the jury, failed by reason of the judges of that court being equally divided in opinion. Writing to Mr. Adams after the verdict had been given, Mr. Seward says:

You are authorized and expected to assure Earl Russell that this Government is entirely satisfied that Her Majesty’s government have conducted the proceedings in that case with perfect good faith and honor, and that they are well disposed to prevent the fitting out of armed vessels in British ports to depredate upon American commerce and to make war against the United States.

This Government is satisfied that the law-officers of the Crown have performed their duties in regard to the case of the Alexandra with a sincere conviction of the adequacy of the law of Great Britain, and a sincere desire to give it effect.3

An appeal was made to the court of exchequer chamber, but it turned out that, owing to an omission in the act constituting the latter, no provision had been made for such a case.

After a detention of a year, pending the trial and appeal, the Alexandra was liberated.

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She went first to Bermuda, then to Halifax, and from thence to Nassau, where, after repeated investigations, she was again seized, in December, 1864, on a fresh charge of an intention to employ her as a ship of war in the confederate service, and though the proceedings in the vice-admiralty court there ended in an acquittal, the decision did not take place till the end of May, 1865, when the civil war was at an end. The costs and damages incurred by the government on account of the two seizures amounted to over £4,000.

The South Carolina. On the 6th of April, 1863, a dispatch was received from the British consul at New York, in which allusion was made to a report which had appeared in the newspapers of that city, that the Georgiana, which, as I have already said, was no more than a blockade-runner, and which is so denominated in the United States Documents,1 was intended to be armed as a confederate cruiser, and that a similar vessel, called the South Carolina, was building in the Clyde. The matter was referred to the commissioners of customs, and the latter reported, on the 13th of April, as follows:

On the receipt of the said letter, we referred the same to our collector at Glasgow for his inquiry respecting the South Carolina; and it appears from the report of the measuring surveyor of shipping at that port, which has been forwarded to us by the collector, that there are about forty ships building at the present time in the port, and it may be intended to give one of them that name; that the only ship apparently designed for a ship of war is the one building in the yard of Messrs. Thomson, referred to in our report to your lordships of the 11th ultimo, and that she is still in a very unfinished state. The measuring surveyor adds that he is giving his closest attention to this vessel, and will take care to keep the collector fully informed of her progress from time to time.2

The Gibraltar or Sumter. A report having appeared in the “Daily News,” on the 17th of March, 1863, that the Gibraltar, which, after acting as a confederate ship of war under the name of the Sumter, had been sold to private owners, and had arrived at Liverpool in the previous month, was fitting out at Birkenhead as a vessel of war, Lord Russell at once requested that inquiries might be made on the subject, and communicated the result to Mr. Adams. I shall have subsequently to go fully into the case of this vessel also, which was an object of constant vigilance during her stay at Liverpool, and which was not permitted to leave until the authorities were satisfied that there was no intention of again equipping her as a confederate cruiser.

Iron-clads at Birkenhead. On the 7th of July, 1863, Mr. Dudley forwarded to the collector of customs at Liverpool several depositions relative to two ironclad steamships building in Messrs. Lairds’ yard at Birkenhead, which were alleged to be intended for the service of the Confederate States, one only of which had at the time been launched, the other being still in process of construction. Representations were also made on the subject by Mr. Adams, and a lengthened correspondence ensued. A strict watch was from the first kept upon the vessels, and inquiries made as to their character and destination. It was at first reported that they were built for the government of France. Subsequently they were claimed by a M. Bravay, of Paris, who produced a legal instrument, from which it appeared that the vessels had, in fact, been built to the order of Captain Bullock, (the confederate agent who had been instrumental in obtaining the Florida and Alabama for the confederate government,) but that Bullock had transferred his interest in them to Bravay. M. Bravay stated that he had purchased them for the Viceroy [Page 352] of Egypt; but the Viceroy, on inquiry, disclaimed any intention of acquiring them.

On the 9th of September, 1863, a letter was addressed to the builders, Messrs. Laird, informing them that the government could not permit the vessels to leave the Mersey until satisfactory evidence could be given of their destination, or until the inquiries then being prosecuted on the subject should be brought to a conclusion; and, on the 9th of October following, both vessels were seized and given over into the care of the captain of Her Majesty’s ship Majestic, then stationed at Liverpool. A commission was sent to Egypt for the purpose of procuring evidence with a view to their condemnation, but the result appearing doubtful, it was decided by the government to purchase them, though it was not in want of them, rather than run the risk of their passing directly or indirectly into the hands of a belligerent. They were accordingly purchased in May, 1864, for the sum of £220,000.1

The Canton or Pampero. Mention has already been made of the inquiries instituted by the government as to vessels supposed to be building for the Confederate States at Glasgow. On the 17th of October, 1863, Mr. Adams wrote to Earl Russell, stating that, in addition to a formidable steam-ram in process of construction at that port, there was also another steamer ready to be launched, called the Canton, having all the characteristics of a war-vessel, which was about to be fitted out and dispatched with the same intent from the same place. Mr. Adams inclosed some extracts from a letter from the United States consul at Glasgow, who, he said, entertained no doubt as to the destination of the vessel, although, from the secrecy used in the process of construction and preparation, he had been slow in gaining evidence on which to base a representation.2

Directions were at once given to the proper authorities to make inquiries and to take any measures which might legally be possible. The investigations remained for some time without any definite result. The vessel was carefully examined. It appeared that though in course of being fitted as a passenger-ship, she possessed some peculiarities of construction which rendered her capable of being converted into a vessel serviceable for warlike use. The builders, however, and the firm through whom she had been contracted for, disclaimed any knowledge of such an intention, and declared their belief that she was intended for the merchant service. The evidence as to her being intended for the confederate service, which was supplied by the United States consul, did not go beyond vague rumor and hearsay.

The vessel was launched on the 29th of October, 1863. On the 16th of November the collector of customs at Glasgow reported that, as she was being rapidly got ready for sea, he had arranged with the captain of Her Majesty’s ship Hogue, then stationed in the Clyde, to prevent the possibility of a departure pending the decision of the authorities;3 and a week later a gun-boat was moored alongside of her to prevent any chance of her leaving surreptitiously.4

By the end of November, the inquiries of the Government led to the production of evidence showing who were the real owners of the vessel, and that they had contracted to sell her to one Sinclair, calling himself a citizen of the Confederate States. A letter from Sinclair was produced, dated in the previous September, in which he said that “the [Page 353] determination of the government to prevent the sailing of any vesse that might be suspected of being the property of a citizen of the Confederate States was made so manifest, that he had concluded it would be better for him to endeavor to close the contract and go where he could have more liberal action;”1 and it appeared from the further correspondence that he had agreed to do this, even on condition of forfeiting the cotton-certificates which he had already deposited as security.

The Pampero was seized on the 10th of December, and legal proceedings were instituted, a verdict was entered against her by default, and she remained under seizure until some months after the termination of the civil war.

Iron-clad ram at Glasgow. As regards the other vessel building in Messrs. Thompson’s yard at Glasgow, on which the authorities, as has been mentioned, were keeping watch, Mr. Adams, writing respecting the seizure of the Pampero, reports as follows, (January 28, 1864:)

One good effect of these various proceedings has been to remove all further anxiety respecting the destination of the formidable iron-clad ram in process of construction at the same place. That she was ordered in the first instance by the rebels, I have no manner of doubt; she has now been purchased by the Danish government, as I learn from the Minister, M. de Bille.2

The Rappahannock. In September, 1863, an old gun-boat named the Victor, being considered as rotten and unserviceable, was sold by the British government to a private firm. The firm having afterward applied for the masts and sails of the vessel, the question of granting the application was referred to Earl Russell, who advised, as a measure of precaution, that the masts and sails should for the present be reserved.3 On the 24th November, 1863, she suddenly left Sheerness, where she was being prepared for sea, at midnight, and crossed over to Calais.4 She was still in a condition quite unfit to go to sea, her rigging being incomplete and her crew deficient. At Calais her commander declared her to be a confederate vessel of war, though she was neither equipped, manned, nor armed. She was allowed to remain, and to make such repairs as were necessary to render her seaworthy, but the precautions taken by the authorities to prevent her being made more serviceable for warlike purposes rendered her practically useless for the confederate service. It having been discovered that large additions had been made to her crew, the French government refused to permit her departure, and she was eventually abandoned by her officers.5

“Contrast, again,” says the Case of the United States triumphantly, “the course of the French government with that of the British government in like cases. What vessel bearing a commission was ever disturbed by a British gun-boat, no matter how flagrant might have been her violations of British sovereignty?” Had those who ask this question forgotten the case of a certain vessel called the Canton, or Pampero, which was served exactly in the same manner, having first had a gun-boat placed alongside of her and having been afterward seized?

No information had been received by the government tending to throw any suspicion on the Victor before her departure. Evidence having subsequently been furnished by Mr. Adams to Lord Russell tending to implicate various persons in the fitting-out of this vessel and the obtaining a crew for her, prosecutions were instituted against such [Page 354] of them as seemed to have rendered themselves liable to punishment, and several of them were convicted or pleaded guilty. Among others, proceedings were taken against Mr. Rumble, an officer in the government dock-yard at Sheerness, and, though he was acquitted, the government marked their displeasure at his conduct by dismissing him from his appointment and placing him upon half-pay, as an officer in whom they could no longer put any confidence.1

In consequence of the events connected with the Rappahannock, the British government at once gave orders that no more ships should be sold out of the navy during the continuance of the war.

An advantageous offer having been made to the admiralty, in December, 1863, for two vessels (the Reynard and Alacrity) which it was thought desirable to dispose of, the matter was referred to Earl Russell, who gave as his opinion that “it would be much better at the present time not to sell any vessels to private firms, as it is impossible to obtain any sufficient assurance in regard to what may be done with vessels when sold out of the navy.”2

The Amphion. It was also thought right to keep careful watch on another vessel, the Amphion, which had already been sold to a private firm, and the police authorities were directed to make inquiries on the subject in January, 1864.3 The vessel was at that time lying dismantled and dismasted. In March following Mr. Adams wrote to call Lord Russell’s attention to the subject, and a constant watch was kept on her by the police. She seems to have been in a state quite unfitted for war purposes, and her destination was stated to be Copenhagen. She was eventually stranded on the British coast a few months later, and broken up.4

The Hawk. On the 1st April, 1864, the suspicions of the customs collector at Glasgow having been excited by certain peculiarities of construction in a vessel recently built at Renfrew, and named the Hawk, he referred the matter to the authorities in London. Pending their decision he refused the application made for a pass to enable her to leave for the latter port.5 On the 16th of the same month Mr. Adams addressed a representation to Lord Russell on the same subject. The Hawk shortly afterward left for London, as was at first believed, without a clearance, and the owner was called upon for explanations. The vessel was also subjected to strict examination by the police and customs authorities. The explanations of the owner proving satisfactory, and no evidence appearing to justify further measures, she was allowed to depart—went to the West Indies, and returned, and was never employed for any warlike purpose.

The Ajax, the Hercules, the Virginia, the Louisa Ann Fanny. Four other vessels formed the subject of representations by Mr. Adams at the commencement of the year 1865—the Ajax, the Hercules, the Virginia, and the Louisa Ann Fanny. As to the first of these vessels, investigations had already been made by the customs authorities at Dublin, while she was lying in Kingston Harbor. In each case inquiries were made not only by the home authorities, but by the governors of Bermuda and Nassau. None of the vessels in question were ever used for other than commercial purposes.

Anglo-Chinese fleet. I have only further to mention the case of the flotilla of gun-boats [Page 355] procured for the Chinese government by Mr. Lay, which it was intended should be manned and officered by British sailors under the command of Captain Sherard Osborn.

On the 28th of February, 1863, a letter was addressed to Mr. Lay, by Earl Russell’s directions, requesting him to give the particulars of the vessels obtained by him for that purpose, and the information given by Mr. Lay was communicated to Mr. Adams, to whom it was likely to be of service in distinguishing the vessels really destined for the service of the Emperor of China from those reported to be so, as a pretext for other purposes connected with the confederate service.

On the arrival of the fleet in China, a difference arose with the Chinese government as to the terms on which the command of the fleet-should be held, and Captain Osborn eventually declined the appointment.

Under these circumstances the British minister at Peking was of opinion—an opinion which was shared by his American colleagues—that if the fleet was allowed to remain in the hands of the Chinese government, there was great danger of the vessels being bought for employment as confederate cruisers. It was therefore arranged that Captain Osborne should take back part of the fleet to Bombay and part to England, and there dispose of them for the Chinese government; and the vessels were brought back accordingly.

On hearing of this arrangement the British government gave orders that every precaution should be taken to prevent their passing into the hands of any belligerent power. The sale of one of the vessels at Bombay was stopped; but as she was merely an unarmed dispatch-boat, the prohibition was subsequently removed. The other ships were held in the custody of the government, and the law-officers having advised that the sale within the British dominions of armed ships of war, already equipped for a different purpose, was not contrary to the foreign-enlistment act, the government determined upon taking upon themselves the responsibility of detaining them unsold. A committee was accordingly appointed to assess the values of the vessels, and the Chinese government were assured that they should not ultimately lose by any delay in the sale. Several overtures for the purchase of one or other of the ships fell through in consequence of the stringent nature of the guarantees required against their employment, by belligerents, or from other causes; and they were in consequence not disposed of till after the close of the war. The delay and consequent deterioration of the vessels caused a loss of over £100,000, which was made good by the British government to that of China.

General result. It thus appears that, during the whole course of the civil war, two ships only were built in Great Britain for, and actually employed in, the service of the confederates. Four others were intended to be built and equipped, but were arrested while in the course of construction. Four merchant-vessels, though not adapted for warlike purposes, were converted into vessels of war by having guns put on board, but out of the jurisdiction of the British government—two of them in confederate ports—and this by reason of the impossibility of getting ships of war built, owing to the active vigilance of the authorities. And it is upon this foundation that Great Britain is represented as having been “the navy-yard of the insurgent States,” and that men who must be supposed to have a conscientious, appreciation of what is just and right, accuse Earl Russell and Her Majesty’s government of “a consistent course of partiality toward the insurgents,” and of “a want of diligence bordering upon willful negligence.”

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Proceedings of other governments. In the United States argument the proceedings of other governments are compared with those of Great Britain, to the disparagement of the latter. Thus, of Brazil, it is said:

Brazil. We beg leave to refer this high tribunal to the administrative regulations of the Brazilian Empire for the enforcement of neutrality in all the ports of the empire, in the amplest manner, by efficient action on the part of the imperial ministers, and of the provincial presidents.

In the American case, and the documents to which it refers, there is sufficient indication of the loyalty and efficiency with which the Brazilian government maintained its sovereignty against the aggressive efforts of the confederates.

After the correspondence which I have already inserted, I may very well say that not even with Her Majesty’s government or officers did the correspondence of the United States Government assume so angry a tone as that which pervades the letters between the American minister and the Brazilian government.1

Portugal is referred to in the American argument in these terms:

Portugal. As to Portugal, we refer to the correspondence annexed to the American Counter Case, to show that she also never pretended that her neutral duty was confined to the execution of the provisions of her penal code. She also put forth the executive power of the Crown to prevent, repress, or repel aggressive acts of the confederates in violation of her hospitality, or in derogation of her sovereignty. Nay more, the government of Portugal, finding its own naval force inadequate to prevent the confederates from abusing the right of asylum in the Western Islands, expressly authorized the American Government to send a naval force there for the purpose of defending the sovereignty and executing the law of Portugal.2

On turning to the documents referred to, I find that Portugal did what, as a neutral power, it was bound to do, namely, interfere to prevent the Azores from being made a depot of munitions of war or coal for the confederate cruisers.

With reference to the authority given to the United States Government to send a naval force to the Azores, ail that appears is, that when Mr. Harvey, the United States minister, informed the Viscount Sá da Bandeira, the minister for war, then acting as minister for foreign affairs, what was going on at the Azores, the minister said, “that the islands in question had been used and abused by corsairs and pirates during centuries; that they were exposed and unprotected, and therefore might be so employed again, and that the best plan would be to send a sufficient force there to protect American ships against threatened depredations, and to punish criminal offenders.” In other words, the Americans were to take care of themselves. This is dignified by the name of “defending the sovereignty and executing the law of Portugal.” I may add that when the confederate steamship Stonewall was at Lisbon she was allowed to supply herself with coal, notwithstanding the remonstrances of the American consul. In conformity with the general rule she was required to leave in twenty-four hours.

The American argument informs us that—

France When attempts were made by the confederates to construct and equip cruisers in the ports of France, on complaint being made by the minister of the United States, the construction of these vessels was arrested; and when a builder professed that vessels under construction, with suspicion of being intended for the confederates, were in fact intended for a neutral government, the French ministers required proof of such professed honest intention, and carefully watched these vessels to make sure that they should not go into the service of the confederates. On this point we quote the language of the minister of marine, as follows:

“The vesssels of war to which you have called our attention shall not leave the ports of France until it shall have been positively demonstrated that their destination does not affect the principles of neutrality, which the French government wishes to rigidly observe toward both belligerents.”3

[Page 357]

The documents annexed to the Counter Case of the United States do not contain more than a small selection of the correspondence relating to this subject, which is given in greater detail in the mémoire and documents submitted by the United States to the French courts of justice in the “Affaire Arman,” documents which, to quote the words of the memoire itself, “show most clearly the dangers to which M. Arman and his associates exposed the maintenance of peace between France and the United States.”1

The suit in question was instituted in November, 1867, on the part of the United States against MM. Arman, Voruz, and others, for the recovery of moneys disbursed by Bullock, acting as agent of the Confederate States, for the construction of six vessels of war in France.

After explaining that the measures taken by the British government in respect of the seizure of both the Alexandra and Pampero, and the detention of the Birkenhead rams, had compelled the confederates “to seek in France the market they were losing on the other side of the channel,”2 the mémoire proceeds to relate that their choice fell on M. Lucien Arman, (member for Bordeaux in the French legislative assembly,) “whose official position seemed calculated to secure greater freedom and certain impunity for the execution of these orders.” An agreement was accordingly entered into with Arman by Bullock, who stated in the contract that “with a view to establish regular communications by steam between Shanghai, Osaca, Yedo, and San Francisco, he wished to procure in France four steamers of great speed, fitted to carry from ten to twelve guns, for their protection in those distant parts.”3

Arman undertook to build two of these steamers in his own yards at Bordeaux, and sub-let the building of the other two to “another deputy of the corps législatif,” M. Voruz, of Nantes. Besides these four steamers he further entered, on the 16th July, 1863, into a fresh agreement with Bullock “for two iron-clad steam-rams.”

One difficulty had to be removed before the final ratification of these contracts, and that was the restriction placed by the royal ordinance of 1847 on the exportation of arms and munitions of war.

It has been already shown that this enactment had no reference to the special subject of neutrality, and simply formed part of that general legislation by which the state in France has frequently sought, in its own interest, to place restraints upon private commerce in articles of a warlike character. In the present instance, however, its practical effect was to interfere with the arming of the vessels. Accordingly, M. Arman applied to the government for permission to arm the four vessels, which were building ostensibly for service in the China Seas, and this was readily granted, on the faith of his assurance, by the Marquis de Chasseloup-Laubat, the minister of marine.

In the following September the knowledge of these facts was betrayed to Mr. Bigelow, then United States consul at Paris, by a clerk of M. Arman, who furnished him, at the same time, with the originals of the deeds drawn up between his employer and the confederate agent, Bullock, as well as of the correspondence exchanged between the parties, and other papers, which placed beyond possibility of doubt the existence of an intention on the part of Arman to violate the neutrality of France.

Mr. Dayton at once brought the matter under the notice of M. Drouyn de Lhuys, then minister for foreign affairs, and followed up his [Page 358] first representations with a formal demand, on the 22d September, that “the permission to arm the vessels should be withdrawn, the manufacture of the guns and shot suspended, and if already completed, that the delivery should be prevented.” He called on the French government to “take such steps as it might deem best calculated to stop the building or departure of the above-mentioned vessels.”

Writing on the 9th October, to express his approval of the course adopted by Mr. Dayton, Mr. Secretary Seward says:

It is hardly necessary to inform you that the President awaits with much solicitude the decision of His Imperial Majesty’s government upon the application you have made, and cannot hut regard an adverse decision as pregnant with very serious consequences.

On the 1st of November Mr. Seward writes again to Mr. Dayton, expressing his disappointment at the indirect and inconclusive answer received from the French government, and relying on Mr. Dayton’s endeavors to obtain a more satisfactory reply.

The minister of marine withdrew the permission to arm the vessels, but justified the course he had taken in granting it “on the builder’s declaration.” This measure, however, the memorial informs us, “did not put a stop to the construction or fitting out of the vessels,” which Arman continued, possibly in the hope of disposing of them to the confederates; but this the measures taken by the French government prevented, except in the case of one of the steam rams building at Bordeaux.

The Stonewall. The history of this vessel, originally known as the Sphinx may be thus summed up from the mémoire and correspondence annexed thereto:

On the 4th February, 1864, M. Drouyn de Lhuys informed Mr. Dayton that Arman had given him the most positive assurance that he had sold the two iron-clads, viz, the Sphinx and her sister-vessel, the Cheops, to the Danish government.1 Mr. Dayton made inquiries at Copenhagen, which resulted in a formal contradiction of the fact by the Danish minister for foreign affairs. M. Arman next represented to M. Drouyn de Lhuys that he had sold them to Sweden, and M. Drouyn de Lhuys repeated to Mr. Dayton, on the 7th of April, this new statement of Arman, (which, however, was almost immediately afterward contradicted by the Swedish foreign minister,) declaring himself “satisfied that the sale had been completed.”2 Mr. Dayton did not place the same confidence in Annan’s assertions, and continued, in obedience to the instructions of his Government, to make serious representations to M. Drouyn de Lhuys on the subject of the rams. On the 8th June he writes to Mr. Seward:

I had already informed M. Drouyn de Lhuys of the very serious character of these questions, and the probable consequences which would result from the completion and delivery of these vessels to the confederates. I have, on all occasions, used strong language when applied to these questions. I told him to-day that, in expressing the views of the President on this subject, I could scarcely speak with the necessary earnestness and directness, without trenching on that respectful forbearance of language to which I desired at all times to limit myself in our official intercourse. I told him that should these vessels pass into the hands of the confederates, become armed and commence a system of depredation on our commerce, the exasperation would be such that the Government, if so disposed (which I did not intimate that it would be) could scarcely keep the peace between the two countries.

In the mean time, Arman had succeeded in defeating the vigilance of the French authorities in the following manner: In March, 1864, he [Page 359] had concluded a contract of sale with the Danish government, then at war with the German Confederation, but the conditions of the contract not having been observed, the Danish officer, to whom the Sphinx was to have been handed over at Bordeaux, refused to receive her. Arman, however took advantage of this contract to get the vessel out of French waters under the name of the Stoerkodder, and sent her to Copenhagen under the pretence of again submitting her to inspection there. The Danish government having persisted in their refusal to purchase the vessel, he obtained permission to bring her back, rechristened as the Olinde, under Danish colors to Bordeaux. On arriving in French waters, off the island of Houat, on the coast of Brittany, she stopped to receive from another steamer, by a preconcerted arrangement, a crew, with an armament of artillery and munitions of war, hoisted the confederate flag, and, changing her name for the third time to that of the Stonewall, left the French waters for Ferrol, in Spain, where she obtained permission to remain and make some necessary repairs.

These proceedings were the subject of energetic remonstances at Paris and Madrid, and would, in all probability, have given rise to much more, had not the close of the civil war deprived the question of any practical interest it might otherwise have had, the Stonewall having been unable to commit any acts of warfare. The American Government wisely preferred to drop its grievances, as Mr. Seward explains in a letter to Mr. Bigelow, United States minister at Paris, dated 13th March, 1865:

Le gouvernement a déja, contre les puissances maritimes impliquées dans cette affaire, des causes de plainte assez nombreuses et assez graves. II préfère néanmoins entretenir la paix, l’harmonie et l’amitié avec ces puissances, plutôt que de rechercher de nouvelles occasions de querelle, et il s’estimera très-heureux si les appréhensions que l’affaire actuelle a soulevées ne sont pas justifiées. Les circonstances semblent d’ailleurs favoriser les vœux du gouvernement à cet endroit. Nos derniers avis télégraphiques nous affirment que le Stonewall est absolument hors d’état de tenir la mer, et que, pour cette raison et pour d’autres, les criminels qui le possèdent cherchent à s’en débarrasser.

From this narrative it will be seen how very different was the view taken of these circumstances by the Government of the United States, at the time when they occurred, from the color now sought to be put upon them by the American argument.

Complaints of blockade-running. The running of the blockade, as it is termed, by British vessels, and the use of the Bahamas and Bermuda and other islands, as places by means of which the blockade-running might be facilitated, were, throughout the war, the cause of unceasing and loud complaint on the part of the United States Government. No doubt it was a very great annoyance to the United States; but it in reality afforded no legitimate cause of grievance.

That, when the arms and munitions of war necessary to the confederates had been purchased in Europe, means should be sought to convey them to the purchasers was in the nature of things. That the high rates of freight which, owing to the vital importance of obtaining these supplies, the confederate government were willing to pay, should have induced ship-owners to run the risk of capture and confiscation, and that the high premiums for insurance which the owners of ships and cargoes engaged in this traffic were willing to pay, should have tempted insurers to undertake the risk of insuring them, cannot, knowing as we do the boldness of mercantile speculation and enterprise, at all surprise us. Accordingly, from a very early period of the war, vessels were employed to run the blockade with cargoes of articles of warlike use. Before long a systematic traffic of this description became regularly established. As the nature of the southern coast and the local peculiarities [Page 360] of its ports made it extremely difficult for oceangoing vessels to avoid pursuit and capture in endeavoring to enter them, advantage was taken of the proximity of the Bahama Islands and Bermuda to the southern ports to transship the cargoes sent from England, at these places, into fast steamers of light draught, which, taking advantage of shallow waters into which they could not easily be pursued, could thus find means of eluding the hostile cruisers. By these means, though ships and cargoes to the value, it is said, of £8,000,000 sterling fell into the hands of the Federals, a very large quantity of arms and articles, contraband of war, found their way to the confederate government.

The first question which presents itself is, was the traffic unlawful? So far unlawful undoubtedly, by the law of nations, as between the rader and the blockading belligerent, that if the belligerent could catch the vessel in the act of breaking the blockade, vessel and cargo would become lawful prize; but by the law of nations involving no ulterior liability. By the municipal law not prohibited, and therefore not unlawful—not even sufficiently so, as has been lately held by Lord Westbury in the case of ex parte Chavasse in re Grazebrook,1 and by Dr. Lushington in that of the Helen,2 to avoid a contract made in contemplation of such a transaction. How as between the blockading belligerent and the country of the blockade-running trader? Clearly and indisputably without consequence of any sort.

It has never been contended by any one that a neutral state incurred any responsibility by the general law of nations by reason of any violation of neutrality by its subjects, in carrying on trade with a blockaded port. It is therefore clear that a neutral government is not bound to prohibit such trade by its municipal law. With the single exception of Denmark, if my memory does not deceive me, no European state has prohibited it. The United States have no law which does so.

Such being the state of the international law of the civilized world and the municipal law of Great Britain on the breaking out of the war, not only was it not incumbent on Great Britain as a duty to alter its law, with a view to prohibiting its subjects from trading with the blockaded ports, but to have done so would have been, as it seems to me, in direct contravention of a fundamental principal of neutrality—namely, that a neutral power shall not, with a view to a pending war, except so far as may be necessary for the fulfillment of its own obligations as a neutral, alter its law, or make new regulations, having the object or effect of favoring one belligerent at the expense of the other. But that such would have been the effect of an alteration of the law, as desired by the United States, by passing an act to make blockade-running penal, is manifest. The United States, as between them and their adversaries, were masters of the seas, and had their ports open, and could, therefore, freely receive the cargoes of arms and munitions of war which were being daily supplied to them. To the confederate government the blockade-runner afforded the only means of obtaining the arms with which he was to fight for independence. An alteration of the law would have been to place him helpless in the power of his enemy. Would it have been consistent with neutrality to alter the law at such a time, and with the certainty of such a result? The right of a belligerent to exclude the commerce of a neutral from a blockaded port is too well established to be shaken; but it is the most odious and arbitrary form in which the freedom of the neutral can be interfered with, and I can see, therefore, [Page 361] no reason why a government should interfere to make the exercise of the power more productive of detriment to the commerce of its subjects than it necessarily carries with it at present. But if any alteration of the law is to take place, it should be in time of peace, not when the change would prove fatal to one of the combatants, and insure victory to the other.

Earl Russell put the matter on the right footing when, in answer to a remonstrance of Mr. Adams, on the 17th of May, 1862, he replied:

If the British government, by virtue of the prerogative of the Crown, or by authority of Parliament, had prohibited and could have prevented the conveyance in British merchant-ships of arras and ammunition to the Confederate States, and had allowed the transport of such contraband of war to New York and to other Federal ports, Her Majesty’s government would have departed from the neutral position they have assumed and maintained.

If, on the other hand, Her Majesty’s government had prohibited and could have prevented the transport of arms and ammunition to both the contending parties, they would have deprived the United States of a great part of the means by which they have carried on the war. The arms and ammunition received from Great Britain, as well as from other neutral countries, have enabled the United States to fit out the formidable armies now engaged in carrying on the war against the Southern States, while, by means of the blockade established by the Federal Government, the Southern States have been deprived of similar advantages.

The impartial observance of neutral obligations by Her Majesty’s government has thus been exceedingly advantageous to the cause of the more powerful of the two contending parties.1

The same reason applies to the frequent use of the ports of the Bahamas and Bermuda as entrepôts for the blockade-running cargoes, and the transshipment of the latter into lighter craft. There was nothing in all this in any way contrary to law. Vessels with cargoes of arms intended for the Southern ports had a perfect right to enter, remain, and quit, when and as they thought proper. If this traffic, suddenly springing up, soon assumed such large dimensions, the cause was to be found in the forced interruption of the trade with the Southern ports through the blockade. Here again a neutral government could not be called upon to make new laws to prevent the neutral trader from availing himself of such means, not inconsistent with law, as circumstances placed at his disposal in seeking to compensate himself for the restraints imposed on his commercial freedom. When the ordinary course of things is disturbed by intervening force, the tendency is always, in some shape or other, to a restoration of the equilibrium. Unfortunately, instead of seeing in all this only the natural effect of commercial speculation and enterprise, the United States Government, in the excitement of the time, saw in it nothing but hostility to the cause of the Union. Impressed with this idea, Mr. Seward writes to Mr. Adams, on the 11th of March, 1862:

Information derived from our consul at Liverpool confirms reports which have reached us that insurance companies in England are insuring vessels engaged in running our blockade, and even vessels carrying contraband of war. This is, in effect, a combination of British capitalists, under legal authority, to levy war against the United States. It is entirely inconsistent with the relations of friendship which we, on our part, maintain toward Great Britain; and we cannot believe that Her Britannic Majesty’s government will regard it as compatible with the attitude of neutrality proclaimed by that government. Its effect is to prolong this struggle, destroy legitimate commerce of British subjects, and excite in this country feelings of deep alienation.

Pray bring this subject to the notice of Earl Russell, and ask for intervention in some form which will be efficient.

Our consuls in London and Liverpool can furnish you with all the information you will require.1

2 United States Documents, vol. i, p. 720.

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Mr. Adams, in a letter to Lord Russell of the 30th of December, 1862, complains in earnest language:

It is a fact that few persons in England will now he hold enough to deny, first, that vessels have been built in British ports, as well as manned by Her Majesty’s subjects, with the design and intent to carry on war against the United States; secondly, that other vessels owned by British subjects have been and are yet in the constant practice of departing from British ports, laden with contraband of war and many other commodities, with the intent to break the blockade and to procrastinate the war; thirdly, that such vessels have been and are insured by British merchants in the commercial towns of this kingdom, with the understanding that they are dispatched for that illegal purpose. It is believed to be beyond denial that British subjects have been, and continue to be, enlisted in this kingdom in the service of the insurgents, with the intent to make war on the United States, or to break the blockade legitimately established, and to a proportionate extent to annul its purpose. It is believed that persons high in social position and in fortune contribute their aid, directly and indirectly, in building and equipping ships of war as well as other vessels, and furnishing money as well as goods with the hope of sustaining the insurgents in their resistance to the Government. To that end the port of Nassau, a colonial dependency of Great Britain, has been made, and still continues to be, the great entrepôt for the storing of supplies which are conveyed from thence with the greater facility in evading the blockade. In short, so far as the acts of these numerous and influential parties can involve them, the British people may be considered as actually carrying on war against the United States. Already British property valued at eight millions of pounds sterling is reported to have been captured by the vessels of the United States for attempts to violate the blockade, and property of far greater value has either been successfully introduced or is now stored at Nassau awaiting favorable opportunities.2

But that these were commercial speculations, and had no reference to any political sympathies, is plain, from the following letter from Mr. Morse, the United States consul-general, to Mr. Adams, of the 24th of the same month. After mentioning the different steamers engaged in the blockade-running, he says:

The ownership of these steamers, the cargoes they carry out, and the manner of conducting the trade, is a question of much interest to Americans. During the early stages of the war the trade was carried on principally by agents sent over from the Confederate States, aided by a few mercantile houses and active sympathizers in this country. These agents, with their friends here, purchased the supplies, and procured steamers, mostly by charter, and forwarded the goods.

But by far the largest portion of the trade, with perhaps the exception of that in small-arms, is now, and for a long time has been, under the management and control of British merchants. It is carried on principally by British capital, in British ships, and crosses the Atlantic under the protection of the British flag.

Parties come from Richmond with contracts made with the rebel government by which they are to receive a very large percentage above the cost in confederate ports of the articles specified. British merchants become interested in these contracts, and participate in their profits or loss. I have seen the particulars of one such contract drawn out in detail, and have heard of others.

There are good reasons for believing that a large portion of the supplies more recently sent to the aid of the insurgents has been sent by merchants on their own account. Several will join together to charter a steamer, and make up a cargo independent of all contractors, each investing as much in the enterprise as he may deem expedient, according to his zeal in the rebel cause, or his hope of realizing profit from the speculation.

Again: some one will put up a steamer to carry cargo to a rebel port at an enormous rate of freight, or to ports on the Atlantic or Gulf coast, such as Bermuda, Nassau, Havana, Matamoras, &c., at a less freight, to be from there reshipped to such Southern ports as appears to afford the best opportunities for gaining an entrance. Ships bound on these voyages are, of course, not advertised, or their destination made known to the public. Their cargoes are made up of individual shipments, on account and risk of the shippers, or go into a joint-stock concern, on account and risk of the company, each member thereof realizing profit or suffering loss in proportion to the amount he invested in the adventure. Both steamers and cargoes are often, if not generally, insured in England “to go to America with liberty to run the blockade.”1

The views of Her Majesty’s Government were set forth in a letter from Earl Russell to Mr. Adams:

With regard to the “systematic plan” which you say has been pursued by Her Majesty’s [Page 363] subjects “to violate the blockade by steady efforts,” there are some reflections which I am surprised have not occurred to you.

The United States Government, on the allegation of a rebellion pervading from nine to eleven States of the Union, have now, for more than twelve months, endeavored to maintain a blockade of three thousand miles of coast. This blockade, kept up irregularly, but when enforced, enforced severely, has seriously injured the trade and manufactures of the United Kingdom. Thousands of persons are now obliged to resort to the poor-rate for subsistence, owing to this blockade. Yet, Her Majesty’s government have never sought to take advantage of the obvious imperfections of this blockade, in order to declare it ineffective. They have, to the loss and detriment of the British nation, scrupulously observed the duties of Great Britain toward a friendly State. But when Her Majesty’s government are asked to go beyond this, and to overstep the existing powers given to them by municipal and international law for the purpose of imposing arbitrary restrictions on the trade of Her Majesty’s subjects, it is impossible to listen to such suggestions. The ingenuity of persons engaged in commerce will always, in some degree, defeat attempts to starve or debar from commercial intercourse an extensive coast inhabited by a large and industrious population.

If, therefore, the Government of the United States consider it for their interest to inflict this great injury on other nations, the utmost they can expect is that European powers shall respect those acts of the United States which are within the limits of the law. The United States Government cannot expect that Great Britain should frame new statutes to aid the Federal blockade, and to carry into effect the restrictions on commerce which the United States, for their own purposes, have thought fit to institute, and the application of which it is their duty to confine within the legitimate limits of international law.1

2 Ibid., p. 731.

It is hardly worth while to dwell on the attempts made to show partiality and unfair conduct on the part of the authorities at Nassau. A Mr. Heyliger appears to have been sent there as the agent of the confederates, and a letter from him to the confederate government of December 27, 1861, is quoted in the case of the United States,2 in which it is said, “We have succeeded in obtaining a very important modification of the existing laws, viz, the privilege of breaking bulk and transshipment.” It is said in the case of the United States—

That modification was all that the insurgents wanted. That privilege converted the port of Nassau into an insurgent port, which could not be blockaded by the naval forces of the United States. Farther stay of the United States vessels of war was therefore useless. The United States ask the tribunal to find that this act, being a permission from the British authorities at Nassau, enabling a vessel chartered by the insurgents, and freighted with articles contraband of war, to diverge from its voyage and to transship its cargo in a British port when not made necessary by distress, was a violation of the duties of a neutral.

I pass by the admission contained in this passage that Nassau was being used by the United States vessels of war as a post of observation for the detection and pursuit of vessels carrying contraband of war to the South; in other words, as a base of naval operations.

The explanation of the passage in Mr. Heyliger’s letter, which I find in the British counter case and appendix, is simple enough. The customs regulations of the colony forbade the transshipment of goods in its ports or waters, unless they were landed for examination by the customs officers. There was nothing, however, to prevent their being at once re-shipped in other vessels after being so landed and examined, and the receiver-general of the colony had power to grant permission for dispensing with the landing of the goods if he thought fit. It would seem that this permission had been customarily granted, as a matter of course, in the case of goods in transit. In conformity with this practice Messrs. Adderly & Co., of Nassau, applied to the receiver-general, shortly before the date of Mr. Heyliger’s letter, for permission to transship the cargo of the Eliza Bonsell, stated to consist of assorted merchandise, to another vessel, the Ella Warley, bound ostensibly for St. John’s, New Brunswick.

[Page 364]

The receiver-general, having regard probably to the destination of the Ella Warley, St. John’s being the port for which blockade-running vessels were in the habit of taking clearances, refused to give the usual permission unless authorized by the governor. Thereupon Messrs. Adderly wrote to the governor explaining that all they asked for was to be dispensed from the formality of landing the goods on the wharf, and then reshipping them, a requisition which had on previous occasions been done away with by the customs authorities; and stating that the receiver-general admitted that he had no ground for his objection, “being fully of opinion that the object of the law could be carried out, and the cargo as easily checked from one vessel to another as if landed.”1

The governor, with the consent of his council, granted the permission, and indeed there seems no sufficient reason why he should have refused it. He could not in any case have prevented the goods being put on board the Ella Warley; he could only insist on their being landed on the wharf in transitu. Mr. Heyliger, who had but just arrived in the colony, probably misunderstood the nature of the concession, and may not have been sorry to exaggerate it to his superiors. The permission having been granted in the case of the Eliza Bon sell, may possibly have also been given in other cases, but it is difficult to understand on what principle it can be alleged to constitute a “violation of the duties of a neutral.”

Complaint is made that the vessels engaged in running the blockade, and leaving Nassau for that purpose, were allowed to clear out for St. John’s, New Brunswick, though it was well known that their destination was a southern port. But there is no means of controlling vessels in this respect. The nature and operation of a clearance is explained in the British case:

Clearance signifies the final official act by which the proper officer of customs notifie that all has been done which the law requires to be done before the departure of ship and cargo. It is purely for customs purposes, the main objects being to protect the revenue, and to secure statistics as to the number of ships and quantity of merchandise entering and leaving British ports. As there are in ordinary times no restrictions or duties on the export of articles of any kind from the United Kingdom, no rigid inspection is exercised by the customs authorities over the general nature of the goods shipped on board vessels in British ports. The attention of the authorities is mainly directed to the shipment of those articles on which an exemption from import duties otherwise payable, or a remission of import duties already paid, is claimed on the ground of their exportation abroad. The object of the inspection is to ascertain that the goods of this nature stated to be thus exported are really shipped and carried away on board the vessel. The agents who ship such goods furnish the customs department with statements in the form of shipping-bills, of the amount and nature thereof, and it is the duty of the examining officer to ascertain that the packages placed on board the vessel correspond with these statements. Before starting on his voyage the master of the vessel is bound to produce a paper called a content, giving the number and description of any packages of merchandise shipped on board, on which exemption from or remission of duty is claimed, but merely specifying any other articles as “sundry packages of free goods.” The master has also to produce a victualing bill, enumerating the amount of stores liable to duty, (such as tea, spirits, tobacco, and the like,) which he has shipped for the nse of his crew. These papers are compared with the shipping bills and certificates already in the possession of the customs authorities, and if they are found to tally, a label, signed and sealed by the examining officer and collector, is affixed to the victualing bill and certificates, and these papers are delivered to the master as his clearance.

It is true that, for statistical purposes, the agents to the master of the vessel are required to furnish to the customs department a list, called a manifest, giving the number and description of all packages of goods, whether liable to duty or not, shipped on board the vessel, and the shipping agents or exporters are also required to furnish specifications of all goods, described by the master on his content as “sundry packages of free goods,” and subsequently further described in his manifest; but the law does not [Page 365] require that these particulars should be given before the vessel sails; it is complied with provided they be furnished within six days after she has cleared.

Previously to the year 1867, no penalty was attached by law to the departure of a vessel for foreign ports without a clearance provided she was in ballast, and had on board no stores except such as were free or had paid duty. Since that date, however, clearance has been required in these as well as in other cases.

A clearance may not be granted until the master of the ship has declared the nation to which he affirms that she belongs; and a ship attempting to proceed to sea without a clearance may be detained until such a declaration has been made. The officer, however, cannot question, or require proof of, the truth of the declaration. As to the destination of ships sailing from the United Kingdom, the officers of customs have little or no means of ascertaining this beyond the information which the master or owner gives on entering outwards. It frequently happens that a vessel entered outwards for a specified destination changes her course when at sea, and proceeds to a different destination. There are no means of preventing this.1

If these vessels had cleared out for a confederate port, they must equally have been allowed to leave. It has been argued that the vessels employed in conveying contraband of war for the use of the confederate government should have been considered as transports, and therefore as contravening the foreign-enlistment act, and therefore that they should have been stopped. If this is meant to be said figuratively, it comes to nothing. If it is meant that the vessels were actually built or fitted out for, and made over to, the confederate government, to be used by them as transports—in which case only they would come within the foreign-enlistment act—the answer is, that there is not only no evidence of anything of the kind, but there is every reason to believe that the contrary is the case, and that they remained the property of the original owners, who found the employment of them in this trade profitable, notwithstanding that many of them fell into the hands of the blockading ships. It is plain, from the letter before cited, that this is the view that Mr. Consul Morse took of the matter.

Sympathy in the colonies. Angry complaints are made in the American documents of the sympathy exhibited at Nassau, and in several other British colonies, toward the confederate cause.

When it is asserted, in particular instances, that this favorable feeling toward the insurgent States led to partiality, inconsistent with a due observance of neutrality on the part of the authorities, it will be better to deal with these charges when I come to the particular cases in which it is alleged to have occurred. As regards the inhabitants of these places generally, it seems to me that it was quite natural that, at the Bahamas and Bermuda, and possibly in the other West India Islands, the tide of public feeling should run strongly in favor of the confederates. These colonies lay more or less contiguous to the southern coast. What trade they had had before with the United States was principally with the South. But what was more likely to operate in favor of the latter was the active trade which the transmission of ships and cargoes to the southern ports suddenly brought to them. Human nature is pretty much the same at Nassau as it would be under similar circumstances at London or New York. We are apt to look with favor on those who bring us business or promote our wealth, or who in any way cause the sun of prosperity to shine upon us. No government can control, or ought to endeavor to control, or to interfere with, public feeling in such cases, if leading to no violation of the law.

Independently, however, of any influence exercised by local interest, I cannot doubt that, as the great contest went on, and while the inferiority of the means of upholding it on the part of the South became more and more manifest, their gallantry and courage shone out the more brightly in continuing the unequal struggle, there did arise the [Page 366] sympathy which enduring courage struggling with adversity never fails to inspire. And I cannot help thinking that the haughty and offensive tone assumed by many of the representatives of the United States helped greatly to turn the tide of public feeling in favor of their opponents. Men refused to see in the leaders of the South the “rebels” and the “pirates” held up by the United States to public reprobation, and thus the effect which a more generous appreciation of the position and qualities of their adversaries might have had in neutralizing the feeling in their favor, tended only to increase it.

Be this as it may, I assert that, whatever individual persons may have thought or felt, Great Britain as a nation was throughout the contest between the Northern and Southern States honestly desirous that perfect neutrality should be maintained, and that the Queen’s government, from the beginning to the end, were animated by the honest desire faithfully to discharge the duty which their position as the ministers and servants of a great sovereign, pledged to neutrality in the face of the world, imposed upon them.

Application to particular vessels. Having thus passed in review the general heads of complaint put forward in the pleadings of the United States, for the purpose of vindicating the British government and British authorities from what appear to me unfounded and unjust aspersions, I proceed to the cases of the individual ships, as to the equipment of which it is alleged that the British government were wanting in diligence.

But it is here, when we proceed to apply, practically, the test of due diligence to the conduct of the government, that the anomaly of the present position, to which I adverted in the outset, makes itself sensibly felt. As I have shown upon abundant authority, the equipping of a ship for sale to a belligerent, in the way of trade, was at the time in question no offense against the law of nations, or a violation of neutrality, though it was an offense against the municipal law of Great Britain. The government of Her Majesty, though like every other government it was bound to prevent any known violation of the law, was under no obligation to a belligerent to enforce the law for his benefit, and incurred no liability to such belligerent for not doing so, so long as the law was not enforced against the latter anymore than against his enemy. Any hostile expedition permitted to leave the shores of Great Britain, which the government, by the exercise of reasonable diligence, could have prevented, would have amounted to a breach of neutrality, for which it might have been held responsible. But for the mere equipping of a vessel, by ship-builders, in the way of trade, though intended for a belligerent, the government would not be responsible; and though every government is no doubt bound to prevent infractions of the law, so far as it knows of them and can prevent them, still this general duty which it owes to its own country is obviously a very different thing from the responsibility it incurs as representing the state, in relation to a foreign power. In the one case, the maintenance of the law is left to the ordinary authorities, and to the individuals who have occasion to seek protection or redress from its operation; in the other, the action of the government by its immediate officers becomes necessary for its own protection. No doubt, as a matter of comity, and from a sense of justice, a government would pay ready attention to the representatives of a belligerent power complaining of an infraction of the municipal law in a matter in which the interests of the belligerent were affected—more especially in a matter lying, as it were, on the confines of municipal and international law—and would call into action the preventive [Page 367] powers it possessed, to keep the law from being broken. But, under such circumstances, it might fairly leave to the representative of the belligerent to make out a case for the application of the law, just as it is left so to do to an ordinary individual who desires to put the law in motion in order to obtain redress on his own behalf. Hence, no doubt, had arisen the practice, common to the governments both of the United States and Great Britain, of requiring the representative of a belligerent power, invoking the aid of the government, to produce evidence by which the action of the executive, when brought to the test of judicial inquiry, can be justified and upheld.

It is obvious that the degree of active diligence which could reasonably be expected from a government under such circumstances, is very different from what it would be bound to exercise in order to prevent a violation of neutrality according to the law of nations, for which, as a government, it would be properly responsible to a belligerent state.

It seems to me that though by the treaty of Washington it must be taken that Great Britain was bound to use due diligence to prevent the equipping of ships as a matter of neutral obligation, and not as a mere matter of municipal law, yet that, in determining whether due diligence was then applied or not, we must look to the relative position of the parties at the time, and insist on no more than would have satisfied the exigency of obligations then existing. Morally, in judging the conduct of the government of that time, we are assuredly bound to do so.

The Florida. case of the florida.

At Liverpool. The following are the facts relating to the Florida, as they are to be gathered from the cases, counter cases, arguments, and printed evidence supplied to the tribunal:

This vessel, originally named the Oreto, was no doubt built for war. The contract for her construction was made by Bullock, who, it has since become known, (though at the time the fact was altogether unknown to Her Majesty’s government,) was an agent of the Confederate States, with Fawcett, Preston & Co., of Liverpool, by whom the contract for the construction of the hull was again sublet to Miller and Sons, shipbuilders at that port. The attention of Mr. Dudley, the United States consul at Liverpool, was attracted to the vessel as early as the end of January, 1862. In dispatches to Mr. Seward, of the 24th of January and 4th of February, he calls attention to this steamer under the name of the Oritis, or Oretis. In the letter of the 24th of January he says: “She is reported for the Italian government, but the fact of the machinery being supplied by Fawcett & Preston, and other circumstances connected with it, make me suspicious, and cause me to believe she is intended for the South.”1

On the 4th of February he writes to Mr. Seward as follows:

In my last two dispatches I called attention to the iron screw steam gun-boat Oreto, or Oritis, being built at Liverpool, and fitted out by Fawcett, Preston & Co. She is now taking in her coal, and appearances indicate that she will leave here the latter part of this week without her armament. The probabilities are she will run into some small port and take it and ammunition on board. This of itself is somewhat suspicious. They pretend she is built for the Italian government; but the Italian consul here informs us that he knows nothing about it, has no knowledge whatever of any vessels being built for his government. There is much secrecy observed about her, and I have been unable to get anything definite, but my impressions are strong that she is intended, for the Southern Confederacy. I have communicated my impressions and all the facts to Mr. Adams, our minister at London. She has one funnel, three masts, bark-rigged, eight port-holes for guns on each side, and is to carry sixteen guns.2

[Page 368]

It thus appears that, by the 4th of February, Mr. Dudley had put Mr. Adams in possession of such information as he possessed concerning this vessel. The letter of Mr. Dudley to Mr. Adams has not been published among the American documents; but it is evident that Mr. Adams did not consider the information communicated to him sufficient to warrant any application to Her Majesty’s government, for none was made by him on the subject of this vessel till the receipt of another letter from Mr. Dudley, a fortnight later. Indeed, Mr. Dudley expressly states that he was unable to get anything definite about the vessel. He speaks only of suspicions and impressions. He had nothing to communicate beyond reports and rumors.

Amongst other things stated by Mr. Dudley, he mentions that he had made inquiry of the Italian consul at Liverpool, who had told him that he knew nothing of the vessel. But if, as was stated by the builders, the order for the vessel had been given by Thomas Brothers, of Palermo, the Italian consul at Liverpool might have remained without information on the subject; and Mr. Dudley, while mentioning what had passed between him and the Italian consul to Mr. Seward, does not appear to have mentioned it to Mr. Adams. The fact was unknown to Her Majesty’s government.

On the 17th of February, Mr. Dudley again writes to Mr. Adams about the Oreto as follows:

The gun-boat Oreto is still at this port. She is making a trial trip in the river to-day. No armament as yet on board. She has put up a second smoke-stack since I wrote you. She therefore has two funnels, three masts, and is bark-rigged. I am now informed that she is to carry eight rifled cannon, and two long swivel-guns on pivots so arranged as to rake both fore and aft. No pains or expense has been spared in her construction, and when fully armed she will be a formidable and dangerous craft; in strength and armament quite equal to the Tuscarora, so I should judge from what I learn.

Mr. Miller, who built the hull, says he was employed by Fawcett, Preston & Co., and that they own the vessel. I have obtained information from many different sources, all of which goes to show that she is intended for the Southern Confederacy. I am satisfied that this is the case. She is ready to take her arms on board. I cannot learn whether they are to be shipped here or at some other port. Of course she is intended as a privateer. When she sails, it will be to burn and destroy whatever she meets with bearing the American flag.1

In a postscript he adds, “The gun-carriages for the Oreto, I have just learned, were taken on board on Friday night last, in a rough state, and taken down in the hold. Fraser, Trenholm & Co. have made advances to Fawcett, Preston & Co., and Miller the builder.”

This statement as to the gun-carriages was wholly incorrect.

Having received the letter of Mr. Dudley, Mr. Adams writes, inclosing it to Lord Russell, as follows:

Legation of the United States,
London, February 18, 1862.

My Lord: I have the honor to submit to your consideration the copy of an extract of a letter addressed to me by the consul of the United States at Liverpool, going to show the preparation at that port of an armed steamer evidently intended for hostile operations on the ocean. From the evidence furnished in the names of the persons stated to be concerned in her construction and outfit, I entertain little doubt that the intention is precisely that indicated in the letter of the consul, the carrying on war against the United States. The parties are the same which dispatched the Bermuda, laden with contraband of war at the time, in August last, when I had the honor of calling your lordship’s attention to her position, which vessel then succeeded in running the blockade, and which now appears to be about again to depart on a like errand.

Should further evidence to sustain the allegations respecting the Oreto be held necessary [Page 369] to effect the object of securing the interposition of Her Majesty’s government, I will make an effort to procure it in a more formal manner.

I have, &c.,


It is clear that, in the information thus conveyed to Lord Russell, there was, so far, nothing that could justify the seizure of the vessel. Whether Mr. Dudley communicated to Mr. Adams the details of the information, to which he refers in general terms in his letter of the 17th, or not, it is certain that no details were communicated to Her Majesty’s government. Nothing was specifically stated beyond the names of the parties for whom and by whom the vessel had been built, and that the former were the same as had, in the preceding August, dispatched the Bermuda laden with munitions of war, with which she had succeeded in running the blockade. Beyond this, all is suspicion, or, at best, the belief of two zealous servants of the United States Government, with only a general reference to information received by one of them from “many different sources,” no details of which are given, or means afforded of testing its accuracy or trustworthiness. It is obvious that, if upon such a representation the Government had proceeded to seize the vessel, no court could have condemned her; she must inevitably have been released. Indeed, Mr. Adams himself seems to have been conscious that his representation was not one on which the Government could act without further materials; for he ends his letter by saying, “Should further evidence to sustain the allegations respecting the Oreto be held necessary to effect the object of securing the interposition of Her Majesty’s government, I will make an effort to procure it in a more formal manner.”

It is plain from this that, as late as the 18th of February, Mr. Adams was not in possession of evidence on which he felt he had a right to call for the interposition of the Government.

Nor does Mr. Dudley appear to have succeeded in obtaining any more reliable information. On the 19th he writes again to Mr. Seward:

I do not think there is any doubt but what she (the Florida) is intended for the so-called Southern Confederacy. Information from many different sources all confirm it, and some of the Southern Agents have admitted it. On Friday night last, her gun-carriages, in pieces, and some in a rough state, were taken on board and put down in the hold. It is understood that her guns are at the foundery of Fawcett, Preston & Co. It is probable they may be taken on in boxes, and mounted after they get out to sea; but I have nothing to warrant this supposition, except the fact of the gun-carriages being taken on board in the night-time, and in the manner they were. She will be quite equal in strength and armament to the Tuscarora when completed. She made a trial trip of twenty miles yesterday. I have made this vessel the subject of two dispatches to Minister Adams, and communicated to him all the particulars.2

Here again, when Mr. Dudley professes to be in possession of the important fact that some of the Southern Agents had admitted that the Oreto was intended for the Southern Confederacy, he communicated the fact only to Mr. Seward. No such information is given to Mr. Adams, still less to the Government or to the local authorities, by whom, had it been imparted to them, the information might have been followed up.

Both in this and his former letter Mr. Dudley’s information as to the gun-carriages having been conveyed on board the Oreto, with the additionally suspicious circumstance of this having been done by night, proved altogether mistaken. The report made by the custom-house officers of Liverpool on the 21st of February shows that the vessel had no gun-carriages on board. It further appears by reports made at a [Page 370] later period that she had no gun-carriages on board when she finally left Liverpool. She had none on board when she arrived at Nassau.

All that under the circumstances could possibly be asked for, on the information conveyed to the government by Mr. Adams, was inquiry; and this Her Majesty’s government at once proceeded to institute.

Immediately on the receipt of Mr. Adams’s letter, Earl Russell took the necessary steps for causing local inquiries as to the Oreto to be made by the officers to whose department it appertained to investigate such a matter. No clew having been given to the secret sources of information which Mr. Dudley may have possessed, these officers could only apply in the first instance to the builders of the vessel. The result of their inquiries, as shown in the reports made by them, appeared perfectly satisfactory. The commissioners of customs, on the 22d of February, report to the treasury as follows:

On receipt of your lordship’s reference, we forthwith instructed our collector at Liverpool to make inquiries in regard to the vessel Oreto, and it appears from his report that she has been built by Messrs. Miller & Sons for Messrs. Fawcett, Preston & Co., engineers, of Liverpool, and is intended for the use of Messrs. Thomas Brothers, of Palermo, one of that firm having frequently visited the vessel during the process of building.

The Oreto is pierced for four guns; but she has, as yet, taken nothing on board but coals and ballast. She is not, at present, fitted for the reception of guns, nor are the builders aware that she is to be supplied with guns while she remains in this country. The expense of her construction has been paid, and she has been handed over to Messrs. Fawcett & Preston. Messrs. Miller & Sons state their belief that her destination is Palermo, as they have been requested to recommend a master to take her to that port, and our collector at Liverpool states that he has every reason to believe that the vessel is for the Italian government.

We beg further to add, that special directions have been given to the officers at Liverpool to watch the movements of the vessel, and that we will not fail to report forthwith any circumstance which may occur worthy of your lordship’s cognizance.



The statement of the commissioners was based on the following reports which they had received from their officers at Liverpool:

Mr. Edwards to the commissioners of customs.

Liverpool, February 21, 1862.

Honorable Sirs: The builders of the vessel Oreto are Messrs. Miller & Sons. Mr. Miller is the chief surveyor for tonnage. By their note inclosed the vessel is correctly described, and I have every reason to believe that she is for the Italian government, and not for the Confederates.

It will be seen by the note of the surveyor, Mr. Morgan, which I annex, that, as yet, she has nothing in her, so that the information furnished to the government is, so far, incorrect.

Special directions have been given to the officers to observe the movements of the vessel, so that whatever takes place can be made known to the board at any time.

Respectfully, &c.,


Mr. Miller to Mr. Edwards.

Liverpool, February 21, 1862.

Sir We have built the dispatch-vessel Oreto for Messrs. Fawcett, Preston & Co., engineers, of this town, who are the agents of Messrs. Thomas Brothers, of Palermo, for whose use the vessel, we understand, has been built. She is pierced for four guns; she has taken nothing whatever on board except coals and ballast; she is in no way fitted for the reception of guns, as yet; nor do we know that she is to have guns while in England. Mr. Thomas, of the firm at Palermo, frequently visited the ship while she was being built.

We have handed her over to the engineers, and have been paid for her. According to the best of my information the present destination of the vessel is Palermo; and we have been asked to recommend a master to take her out to Palermo.

I remain, &c.,


[Page 371]

Mr. Morgan to Mr. Edwards.

February 21, 1862.

Sir: I beg to state that I have inspected the Oreto, now lying in Toxteth Dock, agreeably with your directions issued to-day.

She is a splendid steamer, suitable for a dispatch-boat; pierced for guns, but has not any on board, nor are there any gun-carriages. Coals and ballast are all that the holds contain.

Respectfully, &c.,

C. MORGAN, Collector.1

Here, therefore, was the assurance of a respectable firm of ship-builders, by whom the vessel had been built, that it was understood by them to have been built for Thomas Brothers of Palermo, whose agents Fawcett & Co. were, and that Mr. Thomas, a member of the Palermo firm, had frequently visited the ship while she was in the course of construction. There was the statement of Mr. Edwards, an officer possessing the confidence of the government, that he had every reason to believe that the vessel was built for the Italian government, and not for the confederates. And from the report of Mr. Morgan, another government officer, as well as from the statement of Mr. Miller, it further appeared that the representation of Mr. Dudley, that the vessel “had received her gun-carriages and was ready to take her arms on board,” was altogether incorrect, there being no gun-carriages on board, or preparation of any sort for the reception of guns.

If, prior to the receipt of these reports, the evidence was insufficient to justify the seizure or detention of the vessel, assuredly after them Her Majesty’s government would have acted most improperly if they had directed their officers to adopt so arbitrary and unwarranted a proceeding.

It may be said that further inquiries should have been instituted. But of whom? Mr. Dudley, to whom every one who had conceived any suspicions about the vessel, or heard any rumors respecting her, appears to have run, and who of course was naturally disposed to listen to any statements of the kind, made a point of not giving up the names of his informants. No facts were ever communicated by Mr. Dudley, either to the officers of the port or to the police of Liverpool.

The reports received from the commissioners of customs by the government were at once communicated to Mr. Adams. I cannot help thinking that then was the time for putting Her Majesty’s government in possession of any information which had been obtained by Mr. Dudley from so “many different sources,” if that information could have been made available, and for procuring the evidence which Mr. Adams had expressed himself willing to make an effort to obtain. But nothing further was heard from that gentleman till the 26th of March, (upwards of a month later,) when the vessel had actually sailed. Either Mr. Adams felt, after the reports made to the government by its officers, that the zeal of Mr. Dudley had led him to form hasty conclusions, or the information, though derived from “many different sources,” turned out to be such as could not be relied on, or the evidence was found not to be forthcoming. Even Mr. Dudley, whose untiring industry and zeal in the discharge of his duty is certainly entitled to admiration, does not appear to have supplied Mr. Adams during the whole of this period with any evidence of importance, or to have been required by Mr. Adams to procure evidence upon which the government could be called upon to act. It appears to me, under these circumstances, singularly inconsistent and unjust to impute as matter of blame to Earl Russell, as is done in the case of the United States, that he did not call [Page 372] upon Mr. Adams to furnish further evidence. The government were satisfied with the reports of their officers, having received which they might reasonably, and without being liable to any imputation of want of due care, be of opinion that they ought to rest content, at all events till something more should be brought forward. There was no reason why they should doubt the written statement of Messrs. Miller, a firm of known respectability, and one of the members of which was a government officer at the port. All the firms mentioned had carried on business at Liverpool previously to the war, and it neither is, nor can be, suggested that after the war had begun they had no business dealings or transactions except with the Confederate States. At the same time, as there was no doubt that the vessel was one which was capable of being adapted to the purpose of war, it was right at such a conjuncture that a watchful eye should be kept on her. Directions to this effect were accordingly given by the commissioners of customs, and the vessel was diligently watched until the hour of her departure. If evidence had been forthcoming to show that the government officers were deceived, it was for Mr. Dudley, who professed to know where it was to be found, to produce it. He would have been wholly wanting in his duty if, being possessed of, or enabled to obtain such evidence, he had failed to produce it. The fact that neither Mr. Dudley nor Mr. Adams made any communication to the government till after the vessel had sailed is, as it seems to me, very strong to show that no such evidence was to be had.

If Mr. Dudley, to whom everybody appears to have resorted who had anything to communicate, could find nothing on which his superior, Mr. Adams, ever ready to address requisitions or remonstrances to Earl Russell, could call for the intervention of Her Majesty’s government, it seems unreasonable to reproach the government with want of due diligence in not making inquiries which, there is every reason to think, could have led to no profitable result.

That the government were sincerely desirous of ascertaining the true character of this vessel, lest, possibly, any violation of neutrality should be contemplated, is shown by this, that instead of resting satisfied with the inquiries of the local officers, a belief having been expressed that the vessel was being built for the Italian government, Lord Russell, on the 26th of February, telegraphed to Sir James Hudson, the British minister at Turin, desiring him to “ascertain and report whether a vessel called the Oreto, now fitting out at Liverpool, is intended for the use of the Italian government.”1 Sir James Hudson having referred to Signor Ricasoli, the minister for foreign affairs, telegraphs, in answer: “Ricasoli tells me he has no knowledge whatever of the ship Oreto, but will cause inquiry to be made.”2 As the construction of such a vessel would belong to the department of the marine, the fact of Signor Ricasoli being unaware of any order having been given for its construction would, of course, not be conclusive. Indeed, Signor Ricasoli would not take upon himself to negative the fact, but promised to make inquiry on the subject. Unfortunately the result of the inquiry, which was that the vessel had not been built for the Italian government, was not communicated to Sir James Hudson till the 25th of March, by which time the Oreto had actually sailed.3 The delay is believed to have been owing to a change in the Italian ministry, which occurred about the period in question; for the answer to Sir James Hudson was given not [Page 373] by Signer Ricasoli, but by Signor Ratazzi, who had succeeded him as minister for foreign affairs. The delay is certainly not one for which Her Majesty’s government can in any way be held responsible. Until the final answer to Sir James Hudson’s inquiry had been given, the uncertain answer of Signor Ricasoli could not, for the reason already given—namely, that the matter was not one belonging to his department—suffice to warrant the seizure or detention of the vessel. The ignorance of the Italian consul at Liverpool, who would not necessarily be informed of an order given by the Italian government, especially if the order had been given to Thomas Brothers of Palermo, could not make it unnecessary to wait for Signor Ratazzi’s answer. But the alleged ignorance of the Italian consul was never communicated to the government or to the local authorities. The information was given by Mr. Dudley to Mr. Seward alone; in other words, was thrown away.

Mr. Dudley continued to keep a watchful eye on the Oreto. On the 27th of February he writes to Mr. Seward:

I have positive evidence that the Oreto gun-boat is intended for the southern confederacy. She is to carry sixteen guns, is intended as a privateer, and, from present appearances, looks as if she would start on her cruise direct from this port. She has taken on board, this morning, seventy barrels of pork and beef, sixty sacks of navy and six barrels of cabin bread, together with other provisions. The guns are to be shipped at some other port in England.1

Again on the 1st of March:

The day before yesterday I wrote the Department that I had obtained evidence that the gun-boat Oreto was intended as a privateer, and that she was taking on her provisions, &c. Since then she has been quite busy in taking on provisions. She has a very large quantity, enough for a long cruise. They are getting as many southern sailors as they can. They want 130 men if they can procure them. The pilot has been told they would leave to-day; they are only waiting for the arrival of the West India boat at Southampton. The captain who is to command her is to come by this boat. A man by the name of Duguid, a Scotchman, is to take her out of this port as an English vessel. Her transfer will be made outside. The pilot thinks she will not come back to Liverpool after her trial trip. He is given to understand that she will go to the Isle of Man, then to Holyhead, and some other ports, in one of which her guns will be placed on board, and then she will enter at once on her cruise, and sail to the Mediterranean. I have made arrangements by which I think intelligence of her movements will be communicated to me. Yesterday I addressed letters to the consuls on the Mediterranean, and sea-ports of Spain, Portugal, and some others, advising them of this vessel, and requesting them to report her if she should visit the port. The programme, as laid down to the pilot, may not be carried out, but it looks very probable when taken in connection with the large supplies of provisions she has received on board.1

The programme was not carried out. The Oreto neither went to the Isle of Man, nor Holyhead, nor the Mediterranean; nor did she get any southern sailors.

In the foregoing letters Mr. Dudley says he has “positive evidence” that the gun-boat Oreto was intended as a privateer, and for the southern confederacy. If so, one is naturally induced to ask how it was that this evidence was not communicated to Mr. Adams, by whom it might immediately have been made available, instead of being only spoken of, and that only in general terms, to Mr. Seward, who, being on the other side of the Atlantic, could not, of course, make use of it to stop the vessel. Is not the fair inference to be drawn from this and the other letters of this gentleman, when we see how little resulted from them, that anxious to show his zeal in the best light, he was more disposed to address himself to the Secretary of State than to the minister in London, and was somewhat apt to boast of possessing evidence, when, in fact, he had nothing more than reports and conjectures, which, though not inconsistent with probability, possessed no substantial or available [Page 374] reality? Or was it that his information was obtained by secret means which would have stamped it with discredit if produced?

On the 5th of March Mr. Dudley again writes Mr. Seward:

Owing, as it is alleged, to the authorities here, the Oreto has been compelled to register as an English vessel, and he regularly entered, &c. She entered on Saturday last for Palermo, in Sicily, and Jamaica, in the West Indies, W. C. Miller as owner, and Duguid as commander. Her guns are not on board. She snipped her crew on Monday last. Inclosed find a copy of an agreement given by the captain to one of the men. By it you will see that, while Miller is the owner, Fawcett, Preston & Co. pay the men. I have this document temporarily in my possession. The transfer of the vessel to the southern confederacy will not be made here, but at some place outside; it may be at Palermo or Bermuda, but most likely at some place in the Mediterranean, as the pilot and all the men are now given to understand that they are first to go there. The foreman in Fawcett, Preston & Co.’s told a young man, formerly in the employ of that company, that the guns for the Oreto were to be shipped to Palermo, and put on board at that place; while another person in their foundery told one of my men that the guns had been sent on in the steamer Bermuda, and were to be landed at Bermuda, and that the Oreto was to call there for them. Which of these, or whether either of them, is true, I cannot tell; but what gives some strength to the latter statement is the fact that on Saturday morning last, while the Bermuda was in the river, and just before she sailed, several large cannon were placed on board of her. Both of these persons in the employ of Fawcett, Preston & Co. stated that she was intended for the confederates. The report is that she is to stop at Holyhead. I have sent a man there to watch her, and made arrangements with one of the crew to give information from time to time; made her the subject of a number of communications to Mr. Adams, and on Friday addressed a circular to all our consuls in the Mediterranean, requesting them to look after and report to the Department in case she should visit the port. The provisions of the Oreto are of the very best kind, and very ample, (the pilot says enough to last a year,) with abundance of wines and liquors for the officers. She sailed from here last evening—the bill of entry says for Palermo and Jamaica in ballast. Her crew shipped consists of fifty-two men.1

The conflicting statements set forth in this letter show how uncertain and unreliable were the reports which were conveyed to Mr. Dudley by persons who gave their conjectures as facts, as well as how little reliance can be placed on the information of Mr. Dudley, and how readily that gentleman accepted unauthentic rumors and reports as the foundation of his statements. Mr. Miller was not registered as owner, but, as we shall see in a moment, Mr. John Henry Thomas, a merchant connected with Palermo. In the agreement with the crew, printed in the British appendix, the firm of Fawcett, Preston & Co. are mentioned as “managing owners;” no mention is made of Mr. Miller, either as registered or managing owner.

The guns for the Oreto, which it was asserted were to go out in the Bermuda, did not go out in that vessel.

Here, again, I cannot but repeat the observation that while facts which, if true, were no doubt of importance, are communicated to Mr. Seward, no information respecting them is given to Mr. Adams, by whom they might have been turned to good account, or to the local authorities, to whom they might have afforded a clue to get at the truth. The statements made by the foreman and workmen of Fawcett, Preston, & Co., if mentioned in the proper quarter, might have led to important revelations.

The attention of the local authorities at Liverpool had not been withdrawn from the vessel. They insisted, as appears from Mr. Dudley’s letter to Mr. Seward, of the 5th of March, that the ship should be registered, no doubt as the condition of her clearance, and on the 3d of March, she was registered accordingly, in the name of “John Henry Thomas, of Liverpool, in the county of Lancaster, merchant,” apparently either a member of or connected with the Palermo firm—the said [Page 375] John Henry Thomas then making the following declaration, according to the usual form:

I, the undersigned John Henry Thomas, of Liverpool, county of Lancaster, merchant, declare as follows: I am a natural-born British subject, born at Palermo, in the island of Sicily, of British parents, and have never taken the oath of allegiance to any foreign state. The above general description of the ship is correct. James Alexander Duguid, whose certificate of competency or service is No. 4,073, is the master of said ship. I am entitled to be registered as owner of sixty-four shares of the said ship. To the best of my knowledge and belief no person or body of persons other than such persons or bodies of persons as are by the merchant shipping act, 1854, qualified to be owners of British ships, is entitled, as owner, to any interest whatever, either legal or beneficial, in the said ship. And I make this solemn declaration, conscientiously believing the same to be true.


Made and subscribed the 1st day of March, 1882, by the above-named John Henry Thomas, in the presence of—

Registrar of Shipping, Port of Liverpool.1

The fact of Mr. Thomas, who thus declared himself to be a native of Palermo, being registered as the owner, and his declaration that no person or body of persons, other than such as were by the merchant shipping act qualified to be owners of British ships, was entitled, as owner, to any interest, legal or beneficial, in the vessel, were of course calculated to give support to the statement that the vessel was intended for the firm of Thomas Brothers of that place.

On the ensuing day, the 4th, the Oreto cleared out for Palermo and Jamaica.

Attention is called in the case of the United States to the fact that, “notwithstanding the alleged belief of the Liverpool officers that the vessel was intended for the King of Italy, she was allowed to clear for Jamaica in ballast.” In fact, she cleared for Palermo and Jamaica; not, as would appear to be thus represented, for Jamaica alone. And it is to be observed that the belief of Mr. Edwards, the collector, on this head had been expressed as much as a month before, without, as it would appear, any definite grounds; and that, on the other hand, Messrs. Miller had stated that she had been built for the Palermo firm, and that this statement had received confirmation from the registration of Thomas as her owner.

Though represented as destined to be handed over to the Italian government, as a dispatch-boat, yet, if built in the first instance for a private firm, it was not impossible that it might be intended that she should make a voyage to the West Indies before being parted with. Even if her being cleared for Jamaica, as well as Palermo, had been deemed a circumstance of suspicion, it would not have justified a seizure of the vessel, unless there was something to show that the clearance was fictitious and fraudulent. It was only by subsequent events that this was made to appear.

Attention is invited in the case of the United States to what is called the “easy credulity”of these officicals, “who to the first charges of Mr. Adams replied by putting forward the belief of the builders as to the destination of the vessel, and who met his subsequent complaints by extracting from the custom-house records the false clearance which Bullock and Fraser, Trenholm & Co. had caused to be entered there.”2

This representation appears to me very unfair. These officers, on receiving instructions from the commissioners of customs to make inquiry, [Page 376] had no one to resort to on the first occasion but he builders. They could report no other than what the builders stated, which was that “to the best of their information” the present destination of the vessel was Palermo, as it had been built for the firm of Thomas Brothers, of that place, and they had been asked to recommend a master to take her out to Palermo. When it is said that on the second occasion the officers extracted from the custom-house records the false clearance which Bullock and Fraser, Trenholm & Co. had caused to be entered there, it is again to be borne in mind that it was their duty to communicate the entry of the ship’s clearance to their superiors, according as it stood on the register; besides, there is no evidence of the entry having been made by Bullock or by Fraser, Trenholm, & Co. Indeed, that Bullock can have been a party to the clearance is impossible. The recklessness of the assertion is apparent from the fact that the clearance was effected, and the entry of it made on the 3d of March; whereas Bullock did not arrive at Liverpool in the Annie Childs till the 11th.1 If Fraser & Co. were parties to the clearance the fact appears to have been unknown to Mr. Dudley; no suggestion of the kind is anywhere made by him. Still less is there any ground whatever for supposing that the officers had any knowledge or reason to suspect that the entry had been made by these parties, or was in any respect false. The slur attempted to be cast on these officers, who are said to have been deceived only “because they wished to be deceived,” appears to me, I must say, wholly unfounded, and one cannot but regret to see imputations of this kind introduced into a case stated on the part of the American Government.

But the question, it must never be forgotten, is not whether these officers were unduly credulous; the question on which the liability of the British government must depend is whether there were facts ascertained, or capable of being ascertained, upon which they would have been justified in taking possession of this vessel. It seems to me that there were not.

Upon what evidence could Her Majesty’s government have supported the seizure, or asked for the confiscation of this vessel in an English court of law?

It is here all essential to keep in mind what it was which in a court of law it would have been incumbent on the public prosecutor to establish, in order to the condemnation of the vessel under the foreign-enlistment act. He would have had in the first place to show that the vessel was equipped for war. As to this, it is true there would have been no difficulty. The vessel was pierced for guns, and had the necessary fittings for war; she was represented as a dispatch-boat, which means a vessel capable of being armed, and therefore of being used for war. But it would have been further necessary to prove that the vessel was intended to be used against a belligerent with whom Great Britain was at peace. Here lay the difficulty; for on this head the evidence totally failed. Beyond surmises, suspicion, rumor, there was nothing, at least nothing tangible or that could be made practicably available. According to the safe and sound rules of evidence, which happily prevail in an English court of justice, as also in those of America, (for the procedure is the same in both,) the suspicions and impressions of Mr. Dudley would have been wholly inadmissible; the reports received by him from persons who could not be brought forward would have been rejected as mere hearsay; the gossip of the docks or the shipwrights’ yards would have been at once excluded; insinuations, imputing to respectable [Page 377] officers abandonment of duty and complicity in crime, recklessly made and unsupported by proof, would have been treated with proper disregard. But, beyond this, what was there to show that this vessel was intended for the service of the Confederate States? Positively nothing; while, on the other hand, there was the fact that an apparently respectable merchant, a native of Palermo, had registered himself as the owner; that the vessel had cleared for Palermo and Jamaica, and that her crew had signed articles for a voyage to those places.

A circumstance to which the officers at Liverpool appear to have attached considerable importance, was that the vessel, though pierced for guns, had not even gun-carriages on board, and was wholly unarmed and destitute of munitions of war. It might indeed be surmised by Mr. Dudley that the vessel would receive her armament elsewhere, and the sequel proved that his suspicions were well founded; but on his own showing he was wholly without evidence to prove that such was to be the case. Nor must it be forgotten that the Florida was the first vessel of war built in England for the Confederate States, and that the artifices and tricks, to which the unscrupulous cunning of the confederate agents did not hesitate to resort in violation of British neutrality, had not till then been brought into play. The officers therefore finding, after having unceasingly watched the vessel, that no attempt was made to arm her, may not unreasonably have been satisfied that she was leaving on an innocent voyage; or, at all events, without there being any intention of arming her in British waters. To some minds this may seem “easy credulity.” To others, less astute, it may seem natural enough, and not to be justly imputable to want of proper diligence or to intentional neglect of duty.

If, indeed, the officers had become aware that another vessel had been at that time taking on board gun-carriages and guns capable of being put on board the Oreto after she had left the port, such a circumstance would have been well calculated to excite suspicion that the professed voyage to Palermo and Jamaica was but the pretended destination of the vessel.

But nothing of the kind existed. M. Staempfli, who has insisted on such a fact as one of the main grounds of a decision against the British government, has here fallen into a very serious error. Instead of the guns and their carriages being brought, as he has imagined, from Hartlepool to Liverpool and there shipped, they were, in fact, in order to avoid suspicion, transmitted by railway, unknown to the authorities, from Liverpool to Hartlepool, a port on the opposite coast of England, and there shipped; so that, while the officers at Liverpool knew nothing of the shipment of the guns, the officers at Hartlepool knew nothing of the sailing of the Oreto. To this it may be added that, though Mr. Dudley was aware of the sailing of both the ships, and also of the transport of guns and munitions of war from Liverpool to Hartlepool by Fawcett & Co., to form part of the cargo of the Bahama, it never occurred to him to imagine that there was any connection between the two vessels. While he believed that the Oreto was about to proceed to the Mediterranean, his letters show that he believed that the guns and munitions of war sent to the Bahama were intended to run the blockade or be taken to Bermuda or Nassau, to be there transshipped for that purpose.

On the 7th of March he writes to Mr. Seward:

Some three weeks ago I was credibly informed that the same parties who had purchased the Herald had bought the steamer Bahama; that they would load her with munitions of war for the so-called southern confederacy, and either run the blockade or else land her cargo at Bermuda and run it into Charleston on smaller vessels. I [Page 378] made inquiries to find her, and wrote to different consulates without obtaining any information about her, or any vessel of that name. Yesterday we discovered that Fawcett, Preston & Co; were shipping, by rail, cases containing shells and shot, also cases supposed to contain cannon and rifles, directed to “Pickford & Co., West Hartlepool, for shipment per steamer Bahama, for Hamburg.” This Hartlepool is the same place where the Bermuda, on her first trip, received a portion of her cargo. I have written to the consuls at Leeds and London, and will endeavor to learn something more about this business.1

On the 12th of March:

The vice-consul at Newcastle writes me that there is a steamer, called the Bahama, loading at West Hartlepool. He no doubt will advise the Department and give all the particulars in reference to her. Fawcett, Preston & Co. are sending large quantities of munitions of war to this vessel. They have already sent from Liverpool five hundred cases of shot and shells, upward of twenty tons of cannon, and about four tons of gun-carriages. This vessel will either run the blockade or land her cargo at Bermuda or Nassau, and have it ferried over in smaller vessels.2

When Mr. Dudley himself had not the shadow of a suspicion that the guns sent over to Hartlepool to be loaded in the Bahama were intended for the Oreto, it would be unreasonable, even independently of the mistake I have adverted to, to expect that the Liverpool officers should have seen through the contrivance.

Now, indeed, we are enabled to see these things by the light of subsequent events and since-acquired knowledge. We now know that the Oreto was ordered by Bullock for the Confederate States, and that Bullock was an agent of those States. But at that time these facts were entirely unknown to Her Majesty’s government, and the first of them, at least, equally so to Mr. Dudley himself. Subsequent events have shown that the suspicions entertained by Mr. Dudley and others were well founded; but though these suspicions may have had more or less of probability, they were but suspicions, and were, therefore, incapable of being made practically available. It is easy to be wise after the event. “Eventus stultorum magister,” says the adage. The tribunal must be on its guard against the impression likely to be produced by the adroit way in which, in the United States pleadings, the story of these vessels is told without distinguishing what was formerly known, and what is now known about them. But obviously nothing can be more irrational or unjust than to say that Her Majesty’s government were bound to have seen things then as we see them now, or to seek the condemnation of the Oreto on such evidence as was then forthcoming, because subsequent events have made manifest what was then incapable of being proved.

The inability of Mr. Dudley to obtain any evidence as to the destination of the vessel becomes the more remarkable from the fact that, owing to an accident, an additional three weeks from the clearing out of the Oreto was afforded him for discovery. The vessel in going out, after she had cleared, sustained some injury, and had to put back for repairs, and was detained till the 22d of March, when she finally sailed. Notwithstanding this favorable circumstance Mr. Dudley appears to have been unable to obtain any proof of the vessel being intended for the confederate servic