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MAX
A
HISTORICAL ACCOUNT
OF THE
NEUTRALITY
OF GREAT BRITAIN
DURING THE
AMERICAN CIVIL WAR.
BY
MOUNTAGUE BERNARD, M.A.
CHICHELE PROFESSOR OF INTERNATIONAL LAW AND DIPLOMACY IN THE UNIVERSITY OF OXFORD.
LONDON:
LONGMANS, GREEN, READER, AND DYER.
1870.
The Right of Translation reserved
recat 08-12-aren
CONTENTS. .
Page
xiii
Introduction
CHAPTER I.
CAUSES OF THE WAR.
Structure of the American Commonwealth
Separatist Tendencies and Influences
Consolidating Forces
The Slavery Question
Slavery in the South
The North and West
Question of the Territories
Effect of the Struggle on North and South
The Fugitive Slave Law
The Tariff
1
2
4
7
8
13
14
20
25
28
CHAPTER II.
5.18-U
EVENTS WHICH IMMEDIATELY PRECEDED THE REVOLT.
Parties in the United States
Disorganizing Effect of the Slavery Question
Conflict of Parties on this Question
Contest for the Presidency in 1860
Election of Mr. Lincoln
Legal Aspects of Secession
Pleas for it
Motives which led to it
32
34
36
39
40
41
45
46
Realevo. Mip,
iv
CONTENTS..
CHAPTER III.
REVOLT OF SOUTH CAROLINA, GEORGIA, AND THE GULF STATES.
Page
Revolt of South Carolina
49
Of Georgia and the Gulf States
50
Completeness of the Revolt
52
The South not at first Unanimous
53
Organization of the Confederacy
54
Inaction of President Buchanan
56
Attitude of the Federal Congress
59
Fruitless Efforts for a Compromise
ibid
NOTE.
Acts passed by the Provisional Congress of the Confederate
States during its first Session
62
CHAPTER IV.
COMMENCEMENT OF THE WAR.
Accession of President Lincoln
His Character and Policy.
Attempt to relieve Fort Sumter, and its Fall
President Lincoln's Call for 75,000 Militia
Vacillation of the Middle States
Revolt of Virginia, North Carolina, Tennessee, and Arkansas
Seizure of Harper's Ferry and Norfolk Navy Yard
Confederate Levies
Confederate Government offers Letters of Marque
Confederate Act "recognizing the Existence of War"
President Lincoln's Proclamations of Blockade
State of the Federal Navy.
Naval Resources and Efforts of the Confederacy
Federal Levies
Military Operations
Remarks on the Character and Magnitude of the Revolt .
65
66
68
70
72
73
74
76
78
79
ibid
80
82
85
ibid
87
NOTE I.
Opinions of American Courts and Jurists on the Question at what
date the War should be deemed to have begun
90-100
NOTE II.
x
Confederate Prize Act
100-105
CONTENTS
V
CHAPTER V
INTERNATIONAL EFFECTS OF A CIVIL WAR.
General Remarks: Theory of Sovereignty
Effect of a Revolt
Displacement of Sovereignty; its International Consequences
+
| Maritime Neutrality
Recognition of Belligerency
Piracy; and who are Pirates
Page
106
108
110
112
114
118
CHAPTER VI.
THE EUROPEAN POWERS DECLARE THEMSELVES NEUTRAL.
1
Britain to the United States
Attitude of the British Government
Mr. Seward's Circular
General Attitude of the European Powers
Arrival of News that War had begun
Uneasiness in England
Reasons for a Declaration of Neutrality
The Queen's Proclamation
* British Regulations as to Prizes
Notifications of other Powers
t ㅗ
​NOTE.
122
123
124
126
127
129
130
131
133
134
1
Proclamations, Orders, and Notifications issued by Great Britain
and other Neutral Powers during the War
134-150
CHAPTER VII.
COMPLAINTS OF THE UNITED STATES.
Remonstrances of Mr. Adams
Surprise in England
Views maintained by Mr. Seward
Later Positions of the United States
Counter-positions of Great Britain
Remarks
151
158
159
162
164
166
CHAPTER VIII.
NEGOTIATION ON MARITIME LAW.
Negotiation between United States, England, and France on
Maritime Law
171
vi
CONTENTS.
Page
England and France propose Explanatory Declarations
179
Failure of Negotiation
180
Communications on this subject with Confederate Government . 181
Revocation of Consul Bunch's Exequatur
185
CHAPTER IX.
THE TRENT.
Case of the Trent
187--225
CHAPTER X.
Lagu
226
ibid
228
COMMENCEMENT OF THE BLOCKADE.
Commencement of the Blockade
Peculiar Character of the Southern Coast
Inquiries by Lord Lyons.
Irregular Notification of 30th April
, 1861 (Virginia and North
Carolina)
t Correspondence as to Hiawatha
Charleston blockaded
Blockade intermitted
Savannah, Mobile, New Orleans, and Galveston blockaded
TArrangements made by Consul Mure
* Imperfect Blockade of the Atlantic Coast.
Course adopted by British Government
Remarks
!
230
232
237
ibid
239
240
243
245
ibid
t
CHAPTER XI.
CONFEDERATE SHIPS IN NEUTRAL PORTS,
Confederate Merchant-ships in Neutral Ports:
Great Britain
247
Russia
248
Spain
ibid
Confederate Ships-of-War; the Sumter
249
Correspondence of American Government with Spain
250
The Netherlands. 252
Great Britain 263
British Regulations of January 1862
265
Effect of them
266
The Nashville and Tuscarora at Southampton
267
Rule of Twenty..four Hours
273
The Sumter and Iroquois at Martinique
275
x+yX
CONTENTS
vii
CHAPTER XII.
t
!
THE BLOCKADE CONTINUED.
Page
The Blockade continued ; Sinking of Stone-ships.
283
Pressure of Blockade; Diminished Growth of Cotton
286
Impulse given to Blockade-running
288
*
Causes which promoted it
289
Remonstrances of Mr. Mason
292
Complaints of Mr. Adams.
295
The Nassau Trade; Restrictions imposed by Federal Government 300
Complaints of the Nassau Merchants
302
The British Government remonstrates
303
Replies of the United States
305
Remarks
306
Questions of Prize Law
307
Doctrine of Continuous Voyages
310
Prize Jurisdiction usually severe, and why
312
The Matamoros Trade
313
The Peterhoff, and other cases
315
Neutral Vessels carrying Mails
319
Treatment of Persons captured in Blockade-runners
323
The Emily St. Pierre ; Case of Rescue
325
O
CHAPTER XIII.
CONTRABAND TRADE, AND SHIPS PROCURED IN ENGLAND.
Export of Munitions of War from England
Trade with both North and South
Remarks
Sea-going Ships needed by the Confederacy
Mission of Bullock and North
The Oreto despatched from Liverpool
Mr. Adams calls attention to the "290" or Alabama
Correspondence previous to the Departure of the Alabama
The Alabama sails from Liverpool
Orders sent to seize her
She is armed and commissioned at the Azores
Enlistment of her crew
Failure of the Tuscarora to intercept her
The Oreto seized at Nassau, but released
She is armed and commissioned as the Florida
Her entrance into Mobile .
330
332
333
336
337
338
ibid
338-345
345
346
347
348
349
350
351
ibid
viii
CONTENTS.
Page
Other cases in which representations were made :-
The Hector and others
The Alexandra
The Georgia
The Iron-clads
The Pampero and Rappahannock
The Amphion, the Hawk
The Shenandoah
Other suspected cases.
The Olinde or Stonewall
Prosecutions in England
352
353
355
356
357
358
359
360
361
ibid
.
NOTE,
,
Affidavits laid before the British Government previous to the
sailing of the Alabama
362-370
CHAPTER XIV.
THE 66
ALABAMA CLAIMS.
The Alabama Claims: Correspondence with Mr. Adams,
Later Correspondence: Despatch of Mr. Fish
Recapitulation of Facts
Case of the Alabama; the Question stated
Question of Negligence
Neutral Duties, their Nature and Extent.
Neutrality Laws of England and United States
Changes proposed in England
Changes proposed in America
371-378
378-381
382
385
385-390
390–402
403
405
406
0
Hide
NOTE.
Earlier American Precedents
408-410
CHAPTER XV.
FEDERAL AND CONFEDERATE CRUISERS.
19
411
.
Commencement of the Cruise of the Alabama
Was the British Government bound to exclude her from its
Ports ?
Working of the British Regulations of January 1862
Coaling of Federal and Confederate Cruisers in British Ports
* Confederate practice of burning Prizes
Case of the Saxon.
Case of the Tuscaloosa
Circular Instructions of 2nd June, 1864
412
415
416
419
421
422
425
CONTENTS.
ix
Employment of “Tenders”
Action between the Alabama and Kearsarge
Complaint against the owner of the yacht Deerhound
The Florida and Georgia at Brest and Cherbourg
The Florida seized at Bahia
Cruise of the Shenandoah
She is claimed by and delivered to the United States
General Remarks .
Page
426
427
429
430
4.33
434
435
437
CHAPTER XVI.
BRITISH SUBJECTS IN UNITED STATES.
Questions respecting Foreigners resident in United States
General Principle
Military Arrests, and Suspension of Habeas Corpus
Compulsory Military Service
General Principle
American Law of Nationality
Claims for Exemption
Mr. Percy Anderson's Mission
Questions, how dealt with
439
4:40
441
443
ibid
444
445
446
452-454
NOTE,
Miscellaneous Cases on the foregoing subject
454-457
CHAPTER XVII,
PROGRESS AND END OF THE WAR, AND LATER NEGOTIATIONS.
Course of the War
Obstinate Hostility of the South
Mr. Anderson's Report of the Middle States
President Lincoln's Emancipation Proclamation
Seizure of the Chesapeake and other vessels
The St. Alban's Raid
Popular Feeling in England
The French Government proposes joint Mediation
The British Government declines to concur
The Cotton Famine
Anger of the South against England
Recall of Mr. Mason
Expulsion of British Consuls from the South
Close of the War .
Assassination of President Lincoln
458
460
461
462
463
464
465
467
468
ibid
470
471
472
474
477
X
CONTENTS.
1
Page
Neutrality Regulations withdrawn by Great Britain, France, and
Spain
478
American Government renews its Claims against England
480
Correspondence between Lord Stanley and Mr. Seward 480-490
Proposed Reference declined by United States
490
Subsequent Negotiation with Mr. Reverdy Johnson
ibid
Convention rejected by the Senate
492
Remarks
493
NOTE.
t
Observations on the American Claims, by Professor Esperson,
of the University of Pavia
495-496
CHAPTER XVIII.
CONCLUSION.
Concluding Remarks
497-506
INDEX
507
А
HISTORICAL ACCOUNT,
&c.
!
INTRODUCTION.
This book is primarily intended as a contribution
to the history of International Law. The struggle in
which the American people were engaged between the
years 1861 and 1865 was, from its magnitude, from
the fact that it was partly maritime, and from the exten-
sive intercourse which the United States maintain with
Europe, singularly fertile in questions regarding the
rights and duties of belligerent and neutral. I propose
to give a succinct and connected account of these ques-
tions as they arose. Dry and uninteresting as they will
probably appear to most men, such controversies have
importance for all civilized communities, since there are
few nations which can indulge the hope that they will
not some day be plunged into war, and none that can
expect to escape all contact with it.
I desire, in the second place, to exhibit, by means of
such a narrative, a general view of the conduct of the
British Government in relation to the war. In this way
alone can it be fairly judged. It is only by taking
them in connection with one another, with the general
history of the revolt, and with the course pursued by
other neutral nations, that the acts of Great Britain can
be seen as they were, and in their true magnitude and
proportion. Nearly five years have now passed since
the restoration of peace. Yet the Government, if not
the people, of the United States continues to cherish
towards Great Britain, and towards her alone, a lingering
xiy
INTRODUCTION.
sense of injury, to descant upon its unforgiven grievances,
and to present again and again its claims for redress. I
earnestly hope that before these pages are in print, the
bitterness which remains may have passed away. But
the complaints themselves are on record, and cannot be
effaced from the history of the time. Let us retrace,
then, the course of events from the beginning. Let the
facts be stated as they occurred, and let them be exposed
to the strongest light.
The materials of which I have made use consist
chiefly of the despatches and State-papers which have
been published by the two Governments. These, or
the material parts of them, have been placed, so far
as the necessity for reasonable condensation would
admit, under the reader's eye. I shall attempt, in two
introductory chapters, to sketch the causes which pro-
duced the war, and the events which immediately
preceded it, since there is no possible aspect of it in
which these do not form essential parts of its history.
Discussions between Governments, conducted in
writing, have a certain tendency to discursiveness. Issues
raised on one side are pursued on the other; the question,
as it expands into a controversy, is prone to spread over
too ample a field, and wander into channels from which
it would soon be recalled were it carried on in the pre-
sence of a judge or arbiter. The despatches which passed
between the Governments of the United States and of Great
Britain, in reference to what were called the “ Alabama
Claims,” ought certainly to be ranked high in this class
of compositions. They are forcible, ingenious, and even
eloquent; but no one who reads them, I think, can fail
to see that they are occasionally overloaded with reason-
ing, and that points were sometimes disputed to which a
1 All the despatches to which reference is made, except a few taken
from American sources, are among the papers which have been presented
to Parliament. I have thought it sufficient to refer to them by their
dates.
INTRODUCTION.
XV
judge would pay no attention. I shall be content, where
I have occasion to notice arguments as well as facts,
to advert to such arguments as appear relevant and
material.
A writer who undertakes to deal with questions lately
disputed, --some of them still in dispute,-between a
foreign Government and his own, can scarcely hope to
be perfectly impartial. But he is bound, before express-
ing an opinion, to clear his mind from any conscious
bias, and he has a right to expect the same sincerity
from others. America has many jurists, especially in
the department of International Law, whom it would
be an impertinence to praise. Some of them have done
me the honour to enter into correspondence with me; I
regard them as friends, and am ambitious of their good
opinion. They will feel, as I do, that divided as we are
and must be by our national sympathies, we yet owe, as
jurists, the highest candour to one another. If I fail in
that duty--if I attempt to apply to America any rule
which I should hesitate to apply under like circum-
stances to England-I am justly to blame, and what I
write deserves no attention. International Law knows
.
no country; in aim and intention, at least, its rules are
uniform and universal, though the conception of them
has varied more or less in different places according to
differences of national policy, of local jurisprudence, or
of the traditions in which statesmen and lawyers are
bred. What it prescribes to any one State, that it im-
poses on all; and the body of opinion which it repre-
sents, and the judgment to which in cases of controversy
it appeals, are those, not of England or of America, of
Germany or France, but of the whole civilized world.
All Souls College, Oxford,
February, 1870.
Page Missing
in Original
Volume
Page Missing
in Original
Volume
SEPARATIST TENDENCIES.
3
Chap. I.
reserved to the Governments of the several States. The
laws which secure to each man his life, liberty, and
property, and regulate his social and family relations-
these laws, though their ultimate guarantees might be
sought in the aggregate force of the entire common-
wealth, were in fact made and enforced by his State alone,
and could not, without a breach of the Constitution, be
made or enforced, altered or interfered with, by the
authorities, legislative or executive, of the Union. His
State, therefore, was to him the nearest and most sen-
sible object of those feelings, and source of those benefits,
which men commonly experience towards and receive
from their country, and which are the real basis of the
sentiment of patriotism and the moral duty of allegiance.
The law itself under which he lived recognized this
relation, for it placed allegiance to his State in its list
of duties, and treason against the State in its catalogue
of crimes. It was evident, then, that should a conflict
1 For example, the subjoined sections of the New York Codes as
reported complete by the Commissioners (these Codes however, I believe,
are not yet law) :-
“ Political Code.—$ 3. The sovereignty of the State resides in the
people thereof, and all writs and processes are issued in their name.”
“ § 10. Allegiance is the obligation of fidelity and obedience which
every citizen owes to the State.”
“ Penal Code.—$ 57. The following acts constitute treason against
the people of this State :-
“1. Levying war against the people of this State within the State)
or,
“ 2. A combination of two or more persons by force to usurp the
Government of this State, or to overturn the same, evidenced by a forcible
attempt made within this State to accomplish such purpose; or,
“ 3. Adhering to the enemies of this State while separately engaged
in war with a foreign enemy in the cases prescribed in the Constitution of
the United States, and giving to such enemies aid and comfort in this
State, or elsewhere."
"§ 60. Every person convicted of treason shall suffer death for the
same."
Story (Commentaries on the Constitution of the United States, $ 1,301
suggests a doubt whether there can under the Constitution be a case
of treason against a State, which is not at the same time treason
79
B 2
4
CONSOLIDATING FORCES.
Chap. I.
ever arise between the substantial interests, or the real
or supposed rights, of a State or any number of States,
and the rights and interests of the Union, there might
arise also in the breasts of many Americans a conflict of
sentiment, and a conflict, real or supposed, of public
duties, such as could not possibly occur in any country
differently constituted. The chances of such a contin-
gency seemed to multiply as the number of States mul-
tiplied, as population increased at a rate which promises
to raise it to a hundred millions before the end of the
present century, and as the dominion of the Republic
spread fast and far, colonising and peopling the shores
of the Pacific, covering by degrees the greater part of
an immense continent, and embracing new varieties of
climate, race, and soil.
Are Americans then deficient in national feeling ?
On the contrary, there is no people in the world in whom
it burns more strongly. Indeed, one of the things
which we learn from the history of the United States is
against the United States, and, therefore, cognizable exclusively by the
Federal Courts.
Mr. Seward (10th April, 1861) writes to Mr. Adams :-
“ One needs to be conversant with our federative system, as perhaps
only American publicists can be, to understand how effectually, in the
first instance, such a revolutionary movement must demoralize the General
Government. We are not only a nation, but we are States also. All
public officers, as well as all citizens, owe not only allegiance to the
Union, but allegiance also to the States in which they reside."
“The people of each State," said the Supreme Court in The County
of Lane v. the State of Oregon, “compose a State, having its own Govern-
ment, and endowed with all the functions essential to a separate and
independent existence.”
“Not only,” said Chief Justice Chase in a recent case,
can there be
no loss of separate and independent autonomy to the States through their
union under the Constitution, but it may not unreasonably be said that
the preservation of the States, and the maintenance of their Governments,
are as much within the care and design of the Constitution as the preser-
vation of the Union and the maintenance of the National Government.
The Constitution, in all its provisions, looks to an indestructible Union
composed of indestructible States."- Texas v. White, Wallace's Reports
in the Supreme Court, vol. vii, p. 560.
CONSOLIDÁTING FORCES.
5
Chay. I.
the rapidity with which this sentiment may rise in the
hearts of men towards a newly-adopted country, which
they believe to have given them prosperity, whose
present and prospective greatness flatters their imagina-
tions, and in whose political institutions they feel not
only content but pride. The various influences which
tend to produce throughout the States, and among men
gathered from all countries, a certain uniformity of
manners, habits, and modes of thought; the diffusion of
education through schools of one general type; the com-
manding and levelling force of public opinion in a great
democratic community; even the strong party spirit
and imperious party organization,-I may add, in ordi-
nary times, even those often-recurring elections to
Congress and to the Presidential Chair which periodi-
cally agitate the country from end to end,—contribute to
this result. The general government of the Union is by
these made a matter of interest to every American, and
of no languid interest. Every American has a voice,
which he is constantly summoned to exert, in determin-
ing the hands in which that government shall be lodged;
and the whole people are incessantly marshalled under
flags which, if they have not always a very definite
device, are at any rate not local or sectional. The rest-
less, migratory character of the population, which rarely
permits all the members of one family to remain
denizens of any State, assists, as Mr. Motley has
observed, to interlace the States with each other, and
all with the Union. It may be added that the general
tendency which exists in Europe towards the consolida-
tion of small communities and the concentration of
power, operates with all its force in America ; where, if
we look to the future, it has both its advantages and its
dangers. The progress of mechanical skill and invention,
1 It appears from the Census Returns of 1860, that in the previous
ten years one-fourth of the whole free native-born population had
migrated from State to State.
6
CONSOLIDATING FORCES.
Chap. I.
nowhere more active than here, assists this tendency; for
it destroys the barriers raised by distance, promotes inter-
communication, quickens the diffusion of thought, brings
large areas under easy control, facilitates the transaction
of business on a great scale, and opens many upward and
converging roads to personal ambition. Nowhere, again,
are the advantages of belonging to a great State more
keenly realized; perhaps they are nowhere felt with
qual keenness; and it is natural that this should be so.
Rapid aggrandizement is the strongest of all incentives
to national pride, and there are motives, more solid than
national pride, which may well lead an American to desire
earnestly that the United States should always continue
to be the greatest Power on the American Continent.
The loosely compacted structure of the Common-
wealth has at the same time served to protect it against
risks to which it would otherwise have been exposed.
The pressure of the common Government has been
almost unfelt, and the strain upon its powers of adminis-
tration has been slight, since these powers are contracted
in themselves, though exercised over an immense area.
It is not at Washington, not from Washington, that the
American people are practically governed. There could
be little to provoke that impatient desire for indepen-
dence which springs from a sense of neglect or oppres-
sion so long as each State raised its own taxes, made and
administered its own laws. Local interests and passions,
which might have kindled into flame if brought into
collision in a single representative assembly gathered
from places so remote from each other, had their own
spheres of activity assigned to them elsewhere. Lastly,
the process by which new States are formed as popula-
tion spreads over vacant territory has in it somewhat of
the smoothness and regularity of natural growth, and is
well devised to satisfy as early as possible the settler's
craving for self-government, whilst keeping unbroken
the ties of attachment to the Union.
THE SLAPERY QUESTION.
7
Chap. I.
Rarely, therefore, until of late years, have American
statesmen suffered themselves to harbour any misgiving
as to the permanence and stability of the Union. Nor
was this confidence unreasonable. It might well be
judged improbable that any serious attempt would be
made to sever the tie which bound the States together.
It was certain that any such attempt, if made, could pro-
ceed from only one cause,-a violent conflict of interest
or of sentiment, or both, and that conflict sectional,
defined by a geographical line, and arming large portions
of the Commonwealth against each other. It appeared
certain also that such an attempt, however and wherever
it might originate, would be strenuously resisted.
This improbable event, however, took place; the con-
flict actually arose; and, within the lifetime of men born
before the ratification of the Constitution, the Union was
torn by an extensive revolt, followed by a civil war the
greatest and most sanguinary that the world has ever
I am about to retrace briefly the causes and the
approach of this tremendous calamity; the growth within
the United States of a powerful and compact slavery
interest; the localisation of it in the South; the rise in
the North of interests and sentiments hostile to slavery;
and the circumstances under which, on the part of
the South, suspicion and estrangement deepened into
fear and animosity, and animosity finally broke into
seen.
war.
Slavery and free labour cannot thrive together: each
has a tendency to encroach upon and destroy the other,
and the issue of the contest is determined by the condi-
tions under which it is carried on. Where, as in newly
settled countries, mere labour in its rudest form is very
scarce and very profitable, the temptation to procure
slaves is strong ; beyond the first cost of the slave and
his bare subsistence, all the profits of his work are reaped
by his owner, who secures at the same time a steady
supply, and is relieved from the necessity of bargaining
8
SLAVERY IN THE SOUTH.
Chap. I.
for the services of freemen on their own terms. Under
ordinary circumstances, however, the superior workman,
who toils for his own profit, must, where the competition
is possible, drive out and supersede the inferior, who
drudges to avoid punishment; and to the habits of a
large, free, and industrious population, slavery as an insti-
tution soon becomes distasteful and odious. But where
slavery has once become firmly established, it opposes,
by the very fact of its existence and by the condition
of society which it tends to create, a barrier, hard to
surmount, against such competition. The business, it
has been observed, in which slaves are generally engaged,
be it what it may, soon becomes debased in public esti-
mation. In a country filled with slaves, labour belongs
to the slave, and degrades the freeman.
In the American Colonies south of the Potomac,
negro slavery, once introduced, took root and spread
rapidly. In the wooded uplands which cover a large
part of these countries the climate is generally temperate
and the soil of moderate fertility; but they contain near
the coast, and along the banks of rivers, great tracts of
flat and rich land on which rice, cotton, and tobacco
grow luxuriantly, which yield a lavish return to very
rude labour, and to the tillage of which negroes, from
their capacity of enduring heat, were well adapted. The
great rice-grounds of South Carolina were thus, by the
middle of the eighteenth century, brought into cultiva-
tion entirely by gangs of slaves, largely outnumbering
the scanty white population which dwelt among them.
There were here also greater inequalities of condition
than in the North: the settled parts of Virginia, especially
the tide-water districts, were mostly held in large estates,
and throughout the four Southern Colonies the pursuits
1 The earlier settlers in the Indiana Territory (now Indiana, Illinois,
Michigan, and Wisconsin) made repeated but fruitless efforts between
1803 and 1807 to obtain from Congress a temporary suspension of the
prohibition of slavery within that Territory.
SLAVERY IN THE SOUTH.
9
1
Chap. I.
of the people were almost exclusively agricultural and
pastoral.
Yet it has been reasonably doubted whether even in
these regions negro slavery would have been able to
make head against the immigration from Europe which
their great natural advantages were calculated to attract,
but for the stimulus given to the production of cotton
by the improvements introduced almost simultaneously
in America and England into the processes of cleaning
the raw fibre for exportation, and of manufacturing it
into yarn and cloth. Whitney's saw-gin, the simple
invention of a man of rare mechanical genius, raised
the exportation in one year from 187,000 lbs. to nearly
eight times as much. American cotton,
American cotton, which up to
1793 was almost unknown in the markets of Europe,
had in a few years secured a monopoly of them; and the
value of land and labour suitable to cotton rose with the
rising demand of those markets. From the immense
consumption of cotton fabrics, and the steady flow of
1 The number of slaves south of the Potomac in 1754 is estimated by
Mr. Bancroft at 178,000, against 71,000 in the middle and northern
colonies.--History of the American Revolution, vol. I, p. 146.
The Census of 1790 gives the following results :-
.
.
Virginia
North Carolina
South Carolina
Georgia
Kentucky..
Tennessee
293,427
100,572
107,094
29,264
11,830
3,417
•
..
:
:
:
.
:
Total
545,604
2 In 1784 it is recorded that eight bags shipped to England were
seized at the Custom-house as fraudulently entered, “cotton not being a
production of the United States." The export of 1790, as returned, was
81 bags.-Greeley's American Conflict, p. 58. The quantity imported
here from the United States in 1793 was 187,000 lbs. against an import
(in the previous year) of 28,706,675 lbs. from other parts of the world.-
Ellison's Slavery and Secession in America, p. 14.
10
SLAVERY IN THE SOUTH.
Chap. I.
1
British capital into the trade, the demand has more than
kept pace with the supply.
Lancashire was the great workshop to which the
cotton-grower sent his produce. Lancashire, dusky
with smoke and covered with populous towns, repre-
sents to our eyes the growth of the industry by which
its looms have been fed; and Lancashire manufacturers,
especially of late years, have been tempted to build
mills faster than the price of the raw material would
enable them to work at a profit. In the five years
ending with 1850 the total quantity of raw cotton
consumed in the United States and exported was
4,578,598,117 lbs., and the average price from 8 to 9
cents ; in the five years ending with 1860 the quantity
was 8,403,993,782 lbs., and the average price from 11 to
12 cents. The consequence was that, as the Lancashire
manufacturer multiplied his spindles and increased his
business, so the planter spent all that he could afford in
buying land and slaves. It was roughly computed that
the rise of a cent in the price of cotton added a hundred
dollars to the value of an average field-hand. Negroes
were bred for sale where they could not be employed in
large numbers on the soil. All domestic service was
performed by them, and, throughout the greater part of
the South, every kind of unskilled labour; they were
employed in the fisheries and turpentine woods of North
Carolina, as lumbermen in the South Carolina swamps,
and as ordinary farm-labourers on the wheat and clover
fields of Eastern Virginia. Of the entire mass of pro-
perty, real and personal, in the Southern States, more
than one-half in estimated value consisted of negro slaves ;]
and, since they constituted the whole available stock
The Census of 1860 gives 3,953,760 as the total number of negro
slares in the Slave States. Of these 3,404,373 were held in those States
south of the Potomac. An“ average field-hand" was computed, at the
time of Mr. Olmsted's Journeys, to be worth 500 dollars, but this, in
his opinion, was below the mark. The price had certainly risen before
1
1860.
SLAVERY IN THE SOUTH.
11
Chap. I.
of unskilled labour, they were necessary to support the
value of the other half. “In a slave-holding State,'
wrote Mr. Cobb, of Georgia, “the greatest evidence of
wealth in the planter is the number of his slaves. The
most desirable property for a remunerative income is
slaves. The best property to leave to his children, from
which they will part with the greatest reluctance, is
slaves.” “If,” said Mr. Hammond, of South Carolina,
in 1858, speaking in the Senate of the United States,
“ if you search closely, you will find that there is no
man living in the Southern States, not excepting the
Federal office-holder, but that the labour of the negro
contributes the chief supply to that fund from which he
derives his gains. There is no property here which does
not derive from it its chief value.
To the
labour of the negro, under the white man's superin-
tendence and control, we owe nine-tenths of the pro-
ducts of the soil, the whole of the cotton, sugar, and
rice crops, three-fourths of the tobacco, hemp, and
grain crops, and a large part of the products of the
forest. These are not all, but we will specify no more!
For the most part the field of the white man's industry
begins where the labour of the negro ends. That
which has been produced must be turned to account.
We need but look at our railroads and steam-boats to
see how many white men make their living by. bringing
to market that which they themselves have not pro-
duced, and could not produce. Our towns are crowded
with those who find their sole occupation in the
receipt, transfer, and sale of these same products of
negro labour, and in the trade which springs from its
exchange for other commodities. The towns themselves
have no other origin than the facilitating of this
exchange."
The four million persons (in round numbers) thus
held in servitude within the Southern States, were not
only slaves but people of a distinct race-a race marked
12
SLAVERY IN THE SOUTH.
Chap. I.
by strong physical characteristics, which in the eyes of
their white masters branded them with an indelible
stamp of inferiority and degradation. This circumstance,
while it made the negro's condition hopeless, and himself
an object less for the sympathy we owe to our fellow-
creatures than for the capricious humanity which men
bestow on the brute creation, was a bond of union, which
might with opportunity become a dangerous one, among
the slaves themselves. They were for the most part
extremely ignorant; and to the defects peculiar to the
negro character were added in them the animal habits
and incapacity for forethought and self-control which
slavery almost necessarily engenders. But, though
degraded, they had the power, which brutes have not,
of combination and of receiving and communicating
ideas; and they lived in a country fenced round by no
natural barriers, and in more or less close neighbourhood
to a population who, without much sympathy for the
slave himself, detested slavery, and amongst whom there-
fore, should they escape, their owners could reckon on
no willing assistance in recovering them.
It was a natural effect, then, of negro slavery as it
existed in America, not only to breed in the Southern
people habits of life unlike those of their Northern
fellow-countrymen, and a distinct type of character
which had in it somewhat of pride and imperiousness,
but in the conduct of public affairs to keep alive in
them a constant sense of insecurity. The Southerner
was never without a forecast of possible danger. All
that he had, and the safety of all whom he held dear,
depended on his being able to keep a multitude of
human beings, belonging to an alien race, in the
condition of chattels, and to maintain an institution
assailable from within and from without, which had
perished everywhere else except in Cuba and Brazil,
and which he knew to be discredited and condemned by
the general opinion of the civilized world. He accus-
THE NORTH.
13
Chap. I.
tomed himself to impute this insecurity to the machina-
tions of Northern abolitionists; but no machinations
were necessary to produce it, and it had in fact existed
long before the anti-slavery sentiment woke into activity
in the Northern States. The very fact that opinion was
against him, that he was a mark for reproach which he
thought undeserved, and that this opinion was largely
shared by his own countrymen, disposed him to assert
and defend his rights with somewhat of that acerbity
and tenacity which belong to party spirit. He knew
also that the property he held was, even while it
continued his own, liable to depreciation from other
causes; for the value of slave-labour, which is always,
in the gross, labour of an inferior sort, diminishes fast
with the diminishing productiveness of the land to which
it is applied. The strength of these feelings has been
sometimes exaggerated by anti-slavery writers, but it is
impossible not to see that they largely influenced—nay,
they may be said to have ruled—the action of the
Southern Legislatures in their internal Government, and
that of Southern members in the Federal Congress. To
ward off not only every attack, but every approach, of
the anti-slavery sentiment, to protect, and if possible
increase, the political influence of the slave-holding
interest in the public councils, and to enlarge its terri-
torial dominion, these were the objects which the South
during a long course of years kept steadily in view and
pursued with remarkable tenacity of purpose.
The sterner climate and less kindly soil of the
Northern States, which yield no return, unless to thrifty
and persevering labour, made slave-holding there unpro-
fitable, and it soon became repugnant to the temper and
habits of the people. It was abolished or prohibited
altogether by the State Constitutions of Vermont and
New Hampshire, and by the new Constitution framed in
1780 for Massachusetts ; and Emancipation Acts, gradual
in their operation, were passed between 1770 and 1804
1
14
THE TERRITORIES.
Chap. I.
by Pennsylvania, Rhode Island, Connecticut, New Jersey,
and New York. The handful of slaves which existed
there—they are supposed to have been about 50,000 in
1790—died out: the tide of emigration from Europe
poured, slowly at first, but with increasing volume,
through the Northern ports, spread over the seaboard
States, and rolled westwards; and a vast population grew
up, of more than average intelligence, passionately fond
of freedom, keenly sensitive to opinion, and impatient
of anything like national discredit. A strong hostility
to slavery always existed in the North and West, though
it did not, till a comparatively recent date, become an
active element in the politics of the Union. On the
reasons which prevented this I need not dwell; it is
enough to say that, so long as slavery remained a mere
matter of State legislation, it was practically shut out
from the arena of political controversy. The Constitu-
tion, by giving Congress no control over it, placed it
beyond the reach of interference, and no attempt to
meddle with it unconstitutionally would have been
countenanced by public opinion. Questions might, how-
ever, arise, strictly within the domain of Congress, which,
without directly jeopardizing the institution itself, might
embroil the interests of the Slavė States with those of the
Free, and widen the chasm between them. Three such
questions arose, of very unequal importance one relat-
ing to the admission of new States and the organization
of Territories, a second to the recovery of fugitive slaves,
and a third to the commercial policy of the Union.
To understand the magnitude of the first of these
questions, and the frequency with which it was liable to
1 Slavery in New York finally ceased in 1827, under the operation of
an Act passed in 1817. This Act set free 10,000 slaves. A gradual
Emancipation Act had been passed as early as 1799. At the date of the
Census of 1840 there were still 674 slaves in New Jersey, which had
passed an Act in 1804.-Greeley's American Conflict, p. 108.
Negro slaves existed in Massachusetts as early as 1638.—Curtis,
History of the Constitution of the United States, vol. ii, p. 454.
..
THE TERRITORIES.
15
Chap. I.
recur, we have only to glance at any old map of the
United States side by side with a map of the present
day. The American Republic at its formation occupied
but a narrow strip of its present wide dominion. Of the
chain of States which now divide the valley of the Mis-
sissippi, and of those which border the lakes west of Lake
Erie, not one was then in existence. Between the left
bank of the river and the present confines of Virginia,
the Carolinas, and Georgia, lay a great expanse of wild
land, thinly settled here and there, and roamed over by
the Creek and Cherokee Indians. This now forms the
States of Alabama, Mississippi, Kentucky, and Tennessee.
West of the great stream, from its sources to its mouth,
and from its banks as far at least as the chain of the
Rocky Mountains, and embracing also the seaboard
between New Orleans and Mobile, extended the old French
dominion of Louisiana, then a dependency of Spain, and
uninhabited except at a few points where small settlements
had been formed. West Florida, Texas, and the whole
range of plain and highland stretching from the Gulf of
Mexico to the Pacific, were also Spanish. Oregon was an
unexplored wilderness. All these immense regions have
by degrees been organised as Territories, and from Terri-
tories erected into States; each step has called into action
the powers of Congress; and the question whether slavery
should be admitted into, or excluded from, section after
section of this new domain, has given rise to repeated
and violent struggles. It has been insisted, on the one
hand, that the soil of the Territories, being held by the
common Government of the Union in trust for all the
States, must be deemed common ground, in which all
the States had equal rights; that all citizens indiscrimi-
nately had the right of settling there; that the right to
settle was incomplete unless the settler could carry his
property along with him ; that Congress had by the Con-
stitution no power to exclude from the Territories any
species of property; that no such power could be
16
THE TERRITORIES.
Chap. I.
ascribed to Territorial Legislatures, which are subordi-
nate and temporary; and that slaves were a species of
property. The conclusion from these premises was, that
slavery ought to be recognised and protected by law in
all the Territories up to the moment at which they were
converted into States. The most determined adversaries
of this view arrived, by a different course of reasoning,
at a diametrically opposite conclusion. Freedom, they
said, was, according to the principles of the Constitution,
the normal condition of the Territories; slavery had and
could have no legal existence there, being a status created
entirely by the local laws of some particular States; and,
where it did not exist, Congress had no power to permit
or uphold it, nor, of course, had any Territorial Legisla-
ture. These conflicting views, the former of which was
affirmed by the Supreme Court of the United States in
the Dred Scott case, were not distinctly asserted in the
earlier stages of the contest; but on each recurrence of
1 - The United States, under its present Constitution, cannot acquire
territory to be held as a colony to be gverned at its will and pleasure.
But it may acquire territory wbich, at the time, has not a population that
fits it to become a State, and may govern it as a territory until it has a
population which, in the judgment of Congress, entitles it to be admitted
as a State of the Union. During the time it remains a territory Con-
gress may legislate over it within the scope of its constitutional powers
in relation to citizens of the United States, and may establish a Terri-
torial Government; and the form of this local Government must be
regulated by the discretion of Congress, but with powers not exceeding
those which Congress itself, by the Constitution, is authorized to exercise
over citizens of the United States, in respect to their rights of persons
or rights of property. The territory thus acquired is acquired by the
people of the United States for their common and equal benefit; and
every citizen has a right to take with him into the territory any article
of property, including his slaves, which the Constitution recognizes as
property, and pledges the Federal Government for its protection.”
Dred Scott v. Sandford, Howard's R., xix, 395.
The clause of the Constitution on which the question turned is
Art. IV, & iii, 1, 2, “New States may be admitted by the Congress
into this Union. The Congress shall have power to dispose of, and make
all needful rules and regulations respecting, the territory or other
property belonging to the United States."
THE TERRITORIES.
17
the question they were advanced with greater sharpness Chap. I.
and precision. Four times it became formidable ; each
time-the last perhaps excepted-it was composed by an
arrangement which had more or less the character of a
compromise. The Ordinance passed on the 13th June,
1787, by the Congress of the Confederation, for regulat-
ing the government of the waste lands then called the
North-Western Territory, now forming Ohio, Indiana,
Illinois, Michigan, and Wisconsin, prohibited slavery
within that region; but it provided, in terms nearly the
same as the general clause which was afterwards embo-
died in the Constitution (Art. IV, sec. ii, 3) that should
any person escape into the same “from whom labour or
service is lawfully claimed in any one of the original
States, such fugitive may be lawfully reclaimed and con-
veyed to the person claiming his or her labour or service
as aforesaid.”'l The Missouri Compromise, in: 1820, ex-
tended the same prohibition, guarded by the same proviso,
to so much of the tract between the Mississippi and the
Rocky Mountains (then called the Missouri Territory)
1 This question was twice dealt with by the Continental Congress-in
1784, when an Ordinance was adopted extending in terms over the whole
unoccupied territory above the 31st parallel north latitude, and including
tracts not at that time ceded by North Carolina and Georgia, which now
form the States of Alabama, Mississippi, and Tennessee, and again in
1787. The Ordinance of 1784, as drawn by the Committee of Congress,
of which Jefferson was the principal member, contained the following
clause :---
“ That after the year 1800 of the Christian era there shall be neither
slavery nor involuntary servitude in any of the said States, otherwise than
in punishment of crimes whereof the party shall have bien duly convicted
to have been personally guilty."
“ The votes in Congress,” says Mr. Greeley, were 16 for Mr. Jeffer.
son's interdiction of slavery to 7 against it, and the States stood recorded
6 for it to 3 against it; but the Articles of Confederation required an
affirmative vote of a majority of all the States to sustain a proposition,
and thus the restriction failed through the absence of a member from
New Jersey, rendering the vote of that State null for want of a quorum.”
In the Ordinance of 1787 the clause was inserted, but with the addition
mentioned in the text. This Ordinance was adopted and re-enacted, with
the clause unaltered, by the first Congress of the Union in 1789.
C
18.
THE TERRITORIES.
Chap. I.
as lay to the north of the parallel of 36° 30' north
latitude-in other words, above a prolongation of the
line which divides Virginia and Kentucky from South
Carolina and Tennessee, excluding, however, the new
State of Missouri itself, which lies altogether north of
the line and indeed extends nearly to the latitude of
New York. But the annexation of Texas, and the
acquisition, by the Oregon Treaty with Great Britain
and by conquest and purchase from Mexico, of the
whole region west of the Rocky Mountains, caused
the struggle to be again and again renewed; and the
adoption, in 1850, of Mr. Clay's suggestion that the
settlers in New Mexico and Utah should be permitted
to choose for themselves between the admission and the
prohibition of slavery, coupled, as it was, with the enact-
ment of a very stringent Fugitive Slave Law, shook, if
it did not displace, the precarious fabric of the Missouri
Compromise. That arrangement was completely over-
thrown in 1854, when a part of the district which it
embraced came before Congress for organization into
two new Territories. The Compromise, after an obstinate
struggle, was formally declared inoperative and void, the
prohibition was cancelled, and the same option which
Clay's Act had given to New Mexico and Utah was
extended to Kansas and Nebraska.
In this long warfare the final advantage rested with
the South. If a line be drawn from Delaware Bay to
the Ohio, and along the course of that river to its con-
fluence with the Mississippi, ascending the Mississippi
and Missouri as far as the northernmost limit of Iowa,
thence carried to the crest of the Rocky Mountains, and
beyond them to the boundary of California, we shall see
that the whole dominion of the Republic south of that
line was either occupied by Slave States or by express
declaration thrown open to slavery should the inhabitants
think fit. Indeed, the decision in the Dred Scott case
had virtually rivetted the institution on all the Territories
+
THE TERRITORIES.
19
Chap. I.
of the Union so long as they should remain in the
condition of Territories.
Yet the apparent magnitude of these successive con-
quests far exceeded their real value. Throughout the
vast tracts of land which had been the chief subjects of
dispute, there was but little on which slave-labour could
be profitably employed; and though, in the neighbour-
hood of the planting States, negroes might be bred for
sale, this had its geographical limits, which were soon
reached. In West Virginia and those counties of Ken-
tucky which border on the Ohio, slaves were few. Kansas,
after a desperate internal struggle, finally organized her-
self as a free-labour State; and the adoption of Clay's
Compromise in respect of New Mexico was advocated
by Mr. Webster on the express ground that the character
of the country, composed of high barren mountains and
deep valleys with some narrow strips of river land ren-
dered cultivable only by irrigation, made it impossible
that slavery should ever flourish there. In fact, although
the Legislature of New Mexico passed in 1859 very
stringent laws for the protection of slave property, there
were at the date of the Census of 1860 no slaves within
that Territory. In Utah there were 29, in Nebraska 15,
in Kansas 2, in Nevada, Washington, Colorado, and
Dakota none. It was clear also that, whilst these
victories, such as they were, promised little in the way of
>>
1
1 " Mr. Seward made another speech in the Senate on the 2nd
instant. He expressed perfect confidence that the Union would be pre-
served (he would not admit that it was already impaired and required to
be restored), and he pointed out with considerable effect the unpractical
character of the question which is nominally at all events the cause of the
dispute. This question is that of the “ territories' of the United States.
What, Mr. Seward asked, is the extent of the territories which remain
after the admission of California, of Oregon, of Kansas ? 1,063,307
square miles, an area twenty-four times that of the State of New York,
the largest of the old and fully developed States. How many slaves are
there in it? How many bave been brought into it during the twelve
years in which it has been not only relinquished to slavery, but in which
the Supreme Court and the Legislature and the Administration bare
C2
20
EFFECT OF THE STRUGGLE,
Chap. I. profit, not much more was to be expected from them in
the way of political power. Wherever slavery proved
unprofitable, the interests and influence of the white
population must in the long run add their weight to the
other scale. To retard this process might be possible,
but not to arrest or reverse it. Outnumbered decisively
and irrevocably in the House of Representatives, which
is elected on the basis of population, the South struggled
to keep its hold on the Senate, which is elected by States.
The admission of Free and Slave States to the Union went
on for a considerable time nearly at an even pace, and it
was this which gave such extraordinary keenness to the
contest for Missouri, Kansas, and the Valley of the
Platte. But the endeavour to cut new Slave States out
of countries in which slavery could not strike root was
destined to fail; the balance, long preserved, was at
length destroyed, and the future offered no prospect of
its restoration.]
Meanwhile the struggle itself, its many vicissitudes,
the heat and pertinacity with which it was carried on, the
violences of speech and action by which it was occasionally
sullied even within the walls of Congress, were gradually
dividing the nation into hostile camps and embittering
maintained, protected, defended, and guaranteed slavery there ? Twenty-
four African slaves—one slave for erery 24,000 square miles.”—Lord
Lyons to Lord John Russell, 4th February, 1861.
“ It is true," says Mr. Pollard, speaking of the interest which the
South had in passing the Act which cancelled the Missouri Compromise,
“it is true that her Representatives in Congress were well aware that
under the operation of the new Act their constituents could expect to
obtain but little, if any, new accessions of Slave territory; while the North
would necessarily, from the force of circumstances, secure a number of
new States in the North-West, then the present direction of our new
settlements. But, viewed as an act of proscription against her, the
Missouri Compromise was justly offensive to the South, and its abroga-
tion in this respect strongly recommended itself to her support.
Pollard's Southern History of the War, Richmond, 1862 (reprinted at
New York, 1863), p. 20.
1 The progressive increase in the representation of the Free States in
EFFECT OF THE STRUGGLE.
21
.
the feelings of each towards the other. The battle fought Chap. I.
between the two contending principles in Kansas, as in
an arena, under the eyes of the whole Union-a contest
in which each party held its own Conventions, framed
its own Constitution, and shot down its adversaries
without scruple or remorse—contributed powerfully to
inflame these feelings. The people of the North learnt
to regard slavery as an aggressive power, which it was
necessary to combat, restrain, subdue. They saw that,
condemned elsewhere by law and opinion, and hardly
keeping a precarious foothold in one or two countries,
not the foremost in the march of civilization, it had
Congress, and the dates at which Free and Slave States were respectively
admitted into the Union, are shown in the subjoined Tables :-
NUMBER of Representatives in Congress assigned to each of the
States, from 1790 to 1850.
i
FREE STATES.
STATES.
With Date of Admission into
the Union.
1790. 1800. | 1810. 1820. 1830. 1840. 1850.
::::
10
13
14
7
4
5
2
17
18
17
7
5
6
2
27
23
20
7
6
6
2
34
26
13
6
6
6
2
40
28
12
6
5
6
2
34
24
10
4
4
5
2
33
25
11
4
3
5
2
2
4
6
5
5
4
3
1
6
14
19
21
21
:
1787.
1. New York
2. Pennsylvania
3. Massachusetts
4. Connecticut
5. New Hampshire. .
6. New Jersey
7. Rhode Island
1791.
8. Vermont
1802.
9. Ohio
1816.
10. Indiana.
1818.
11. Illinois .
1820.
12. Maine..
1837.
13. Michigan
1846.
14. Iowa
1848.
15. Wisconsin
1850.
16. California
1
3
• .
7
10
:
11
..
1
3
7
9
:
..
7
..
8
7
..
6
..
.
•
•
1
3
4
:
2
..
:
..
:
3
..
.
..
..
2
..
:
57
77
104
123
142
135
144
[SLAVE STATES,
22
EFFECT OF THE STRUGGLE.
+
Chap. I.
fixed its empire within the United States, was working
steadily to extend that empire, and aimed at nothing
less than to stamp on the Republic for ever the
character of a great Slave Power. Attention was
directed to its economical results; its influence on the
growth of wealth and population began to be rudely
canvassed, and its value as an instrument of production
was exposed to searching inquiry. The abolitionist
agitation, which had not before been formidable, gained
strength, and a great party arose, which, not unanimous
on all other points, acknowledged as its common prin-
ciple the duty of resisting, at all costs, the further
extension of slavery.
The United States,” Mr. Seward declared, in 1858,
“must and will, sooner or later, become entirely a
(Note continued from page 21.)
SLAVE STATES.
STATES.
1790. 1800. | 1810. 1820. 1830. 1840. 1850.
With Date of Admission into
the Union.
19
8
1
10
6
2
22
9
1
12
8
4
23
9
2
13
9
6
22
9
1
13
9
7
21
8
1
13
9
9
15
6
1
9
7
8
13
6
1
8
6
8
2
6
10
12
13
10
10
1
3
6
9
13
11
10
1787.
1. Virginia
2. Maryland
3. Delaware
4. North Carolina
5. South Carolina
6. Georgia.
1792.
7. Kentucky
1796.
8. Tennessee
1812.
9. Louisiana
1817.
10. Mississippi
1819.
11. Alabama
1821.
12. Missouri
1836.
13. Arkansas
1845.
14. Florida.
15. Texas.
..
1
3
3
4
4
1
2
4
5
3
5
7
7.
1
2
5
7
:
..
1
1
2
:
::
::
1
2
49
65
79
90
100
88
90
EFFECT OF THE STRUGGLE.
23
1
Chap. I.
slave-holding nation or entirely a free-labour nation."
“We shall help,” cried Mr. Sumner of Massachusetts,
“ to expel the slave oligarchy from all its seats of
national power and drive it back within the States.
Prostrated, exposed, and permanently expelled from
ill-gotten power, the oligarchy will soon cease to
exist as
a political combination. Its final doom
may be postponed, but it is certain.
In its retreat, smarting under the indignation of an
aroused people and the concurring judgment of the
civilized world, it must die--it may be as a poisoned
rat dies, of rage in its hole. Meanwhile all good omens
The work cannot stop. Quickened by the
are ours.
O
+
1 "Our country is a theatre which exhibits in full operation two
radically different political systems, the one resting on the basis of servile
or slave labour, the other on the basis of voluntary labour of freemen.
The two systems are at once perceived to be incongruous. Both never
have permanently existed together in one country, and they never cau.
Hitherto the systems have existed in different States, but sidde
by side within the American Union. This has happened because the
Union is a Confederation of States. But in another aspect the United
States coustitutes only one nation). Increase of population, which is
filling the States out to their very borders, together with a new and
extended network of railroad and other avenues, and an internal commerce
wliich daily becomes more intimate, is rapidly bringing the States into a
higher and more perfect social unity or consolidation. Thus these antago-
nistic systems are continually coming into closer contact, and collision
Shall I tell you what this collision means? It is an irrepressible
conflict between opposing and enduring forces, and it means that the
United States must and will sooner or later become entirely a slave-
holding nation, or entirely a free-labour vation. Either the cotton and
rice fields of South Carolina and the sugar plantations of Louisiana will
ultimately be tilled by free labour, and Charleston and New Orleans
become marts for legitiinate merchandize alone, or else the rye-fields and
wheat-fields of Massachusetts and New York must again be surrendered
by their farmers to the slave culture and to the production of slaves, and
Boston and New York become once more markets for trade in the bodies
and souls of men. It is the failure to apprehend this great truth tliat
induces so many unsuccessful attempts at final compromise between the
Slave and Free States, and it is the existence of this great fact that renders
all such pretended compromises, when made, vain and ephemeral.”.
Speech at Rochester, New York, October 25, 1858.
ensues.
24
EFFECT OF THE STRUGGLE.
1
Chap. I. triumph now at hand, with a Republican President in
power, State after State, quitting the condition of a
Territory, and spurning slavery, will be welcomed into
our plural unit, and, joining hands together, will become
a belt of fire about the Slave States, in which slavery
must die.' “I believe,” said the sober judgment of the
man who afterwards became President of the United
States, “this Government cannot permanently endure
half slave and half free. I do not expect the Union to
be dissolved. I do not expect the house to fall, but I
do expect that it will cease to be divided. It will
become all one thing, or all the other. Either the
opponents of slavery will arrest the further spread of it
and place it where the public mind shall rest in the
belief that it is in the course of ultimate extinction, or
its advocates will push it forward till it shall become
alike lawful in all the States, old as well as new, North
as well as South.”]
In the South itself the contest had not failed to
produce its natural effects. It had strengthened power-
fully throughout the Slave States the common tie of
sectional interest and feeling; it had accustomed them to
regard the Free States as opponents, if not as enemies;
and the counter-movement in the North, as it advanced,
awoke in the Southern people, high-spirited, hasty, and
sensitive, as we have seen, from the character of their
institutions, to the least approach of danger, the liveliest
emotions of anger and alarm-a state of mind more
prone than any other to precipitation and less accessible
to reason. The tendencies of Northern opinion were
exaggerated; slavery itself, no longer defended as a
necessary evil, was eulogised with almost fantastic extra-
vagance. The journals were filled with violent abuse
of everything Northern; and two old grievances--the
imperfect execution of the laws providing for the sur-
1 Mr. Lincoln's Speech at Springfield, Illinois, June 17, 1858.
FUGITIVE SLAVE LA W.
25
1
Chap. I.
render of runaway slaves, and the injustice of a protective
tariff, were insisted on with new and redoubled vehemence.
II. The Constitution of the Union, framed at a time
when slavery had ceased in one at least of the Thirteen
States, and was in process of extinction in others, re-
garded the relation of master and slave as what it was
in fact-a local institution—the creature of local laws,
existing where those laws had force, and not existing
elsewhere. It contains, however, the following clause,
introduced at the instance of South Carolina shortly
before the Convention concluded its labours :
“No person held to service or labour in one State under the law
thereof, escaping into another, shall in consequence of any
regulation therein be discharged from such service or labour, but shall be
delivered up on claim of the party to whom such service or labour may
law or
be due."
An account of the insertion of this clause and a
defence of it may be read in Mr. Curtis's History of
the Constitution of the United States.)
66 It was re-
garded at the time," observes that lucid and careful
writer, “by the Southern States as absolutely necessary
to secure to them their right of exclusive control over
the question of emancipation; and it was adopted in the
Convention by unanimous consent, for the express pur-
pose of protecting a right that would otherwise have
been without satisfactory security.”
It was held by the Supreme Court that the power
and duty created by this clause belong exclusively to the
Covernment of the United States, and that Congress
aione could legislate on the subject; that Congress itself
could not exact from the several States any service which
they were unwilling to perform; and that laws made by the
States to prevent, or even to assist, the arrest and recovery
of fugitive slaves were unconstitutional and void. This
1 Book iv, chap. xv.
2 Prigg v. Commonwealth of Pennsylvania, Peters's R. xvi, 539, 622.
The judgment of the Supreme Court was pronounced by Mr. Justice
Story.
26
FUGITIVE SLAVE LAW.
The general purport of these Acts was to authorize
Chap. I.
decision, though it had been sometimes disapproved,
continued to be law.
For the purpose of giving effect to the clause, two
Acts had been passed, divided by a long interval of
time—the first in 1793, the second (drawn by Mr. Mason
of Virginia, and supported by Mr. Webster, and adopted
as one of the series of measures known as Mr. Clay's
Compromise) in 1850.
in every case the claimant of an alleged fugitive to seize
and remove him to the State from whence he came.
Authority to remove was obtained from a Judge of a
Circuit or District Court of the United States, or (under
Mr. Mason's Act) from a Commissioner chosen by the
claimant out of a certain number holding their appoint-
ments under the Circuit Courts.
All the necessary
evidence might, under that Act, be given either by depo-
sitions or by affidavit at the option of the claimant; the
Commissioner's fee was 10 dollars if he granted the
authority, 5 dollars if he refused it; he might issue to
any person whom he thought fit a warrant for the arrest
of the alleged fugitive, and the holder of the warrant was
entitled to summon the posse comitatus to aid in
executing it.
These provisions, which appear plainly designed to
make slave-catching in the Free States a business pro-
fitable to petty officials and such private persons as
chose to engage in it, had at first the effect intended;
but in achieving their ulterior object, in rendering an
obnoxious law independent of that support which all
laws derive from public sentiment and enabling it to
make head against an adverse current of opinion, they
failed, as it was inevitable that they should. Their
very rigour, and the tragical incidents which some-
times attended the execution by peace-officers of what
a Judge of the Supreme Court did not scruple to call
1 Mr. Justice Grier. Greeley's American Conflict, p. 217.
FUGITIVE SLAVE LAW.
27
“a most dangerous and disgusting duty,” exasperated Chap. I.
popular feeling against the law itself, and helped to
defeat its purpose. But for this the Federal Govern-
ment was not to blame. A law which the bulk of the
community believe to be immoral and detest as inhuman
can be enforced by nothing short of despotic and over-
whelming power; and this is eminently true where, as
in the case of slave-catching, the detection, pursuit,
seizure, and removal of the runaway-in a word, the
whole process from beginning to end-is liable to be
thwarted in a hundred ways without open resistance.
These obstacles were augmented, indeed, in many of the
Free States by State enactments, framed to make the
execution of the Act as difficult and troublesome as
possible, and to deter persons from taking part in it-
enáctments which were commonly and justly regarded
as unconstitutional. The real loss, however, sustained
by the Slave States from these causes does not appear to
have been considerable; and of this but little was pro-
bably due to the action of the State Legislatures, none
to the Federal Congress. All that the latter could do,
and more than it ought to have done, it did.?
1 There is a summary of these laws in the American Annual
Cyclopædia for 1861, under the heading “ Personal Liberty Laws."
% During the discussions of the “Peace Conference” in 1861, the
present Chief Justice of the Supreme Court spoke as follows on this
subject (February 26th) :-
Aside from the Territorial question—the question of Slavery outside
of Slave States I know of but one serious difficulty. I refer to the
question concerning fugitives from service. The clause in the Consti-
tution concerning this class of persons is regarded by almost all men,
North and South, as a stipulation for the surrender to their masters of
slaves escaping into Free States. The people of the Free States, how-
ever, who believe that slave-holding is wrong, cannot and will not aid in
reclamation, and the stipulation becomes therefore a dead letter. You
complain of bad faith; and the complaint is retorted by denunciations of
the cruelty which would drag back to bondage the poor slave who has
escaped from it. You, thinking slavery right, claim the fulfilment of the
stipulation; we, thinking slavery wrong, cannot fulfil the stipulation
without consciousness of participation in wrong. Here is a real diffi-
28
THE TARIFF,
Chap. I.
III. On the score of the Tariff the South had two
complaints to urge, which should be kept distinct from
one another. The Congress of the United States is by
the Constitution prohibited from imposing export duties,
but it has authority to tax imports, provided the taxa-
tion be uniform and no preference be given by any
regulation of commerce or revenue to the ports of one
culty; but it seems to me not insuperable. It will not do for us to say
to you, in justification of non-performance, The stipulation is immoral,
and therefore we cannot execute it;' for you deny the immorality, and
we cannot assume to judge for you. On the other hand, you ought not
to exact from us the literal performance of the stipulation when you know
that we cannot perform it without conscious culpability. A true solution
of the difficulty seems to be attainable by regarding it as a simple case
where a contract, from changed circumstances, cannot be fulfilled exactly
as made. A court of equity in such a case decrees execution as near as
may be. It requires the party who cannot perform to make a compen-
sation for non-performance. Why cannot the same principle be applied
to the rendition of fugitives from service? We cannot surrender-but
we can compensate. Why not, then, avoid all difficulties on all sides,
and show respectively good faith and good will, by providing and
accepting compensation where masters reclaim escaping servants and
prove their right of reclamation under the Constitution ? Instead of a
judgment for rendition, let there be a judgment for compensation,
determined by the true value of the services, and let the same judgment
assure freedom to the fugitive. The cost to the Natio' al Treasury would
be as nothing in comparison with the evils of discord and strife. All
parties would be gainers.”—Chittender's Debates and Proceedings of
the Peace Conference, p. 430.
On the amount of the loss suffered, by escapes the following
passage occurs in the Introduction to the American Census Returns of
1860:
“ The number of slares who escaped from their masters in 1860 is
not only much less in proportion than in 1850, but greatly reduced
numerically. The greatest increase of escapes appears to have occurred
in Mississippi Missouri, and Virginia, while the decrease is most marked
in Delaware, Georgia, Louisiana, Maryland, and Tennessee.
“ That the complaint of insecurity to slave property by the escape of
this class of persons into the Free States, and their recovery impeded,
whereby its value has been lessened, is the result of misapprehension, is
evident.not only from the small number who have been lost to their
owners, but from the fact that up to the present time the number of
escapes has been grailually diminishing to such an extent that the whole
annual loss to the Southern States, from this cause, bears less proportion
I
THE TARIFF.
29
State over those of another. It had been the uniform Chap. I.
practice, in exercise of this power, to raise by import
duties nearly the whole (I believe, about seven-eighths)
of the supplies necessary for the public expenditure of
the Union, leaving the State Governments to provide
for their public expenditure by direct taxation. This
practice, it was alleged, was disadvantageous not so much
to the amount of capital involved, than the daily rariations which in
ordinary times occur in the fluctuations of State or Government securities
in the city of New York alone.
“ From the tables annexed, it appears that while there escaped from
their masters 1,011 slaves in 1850, or one in each 3,165 held in bondage
(being about 3th of 1 per cent), during the census year ending June 1,
1860, out of 3,949,557 slaves, there escaped only 803, being 1 to about
5,000, or at the rate of oth of 1 per cent.
Small and inconsiderable as
this number appears, it is not pretended that all missing in the Border
States, much less any considerable number escaping from their owners in
the more Southern regions, escaped into the Free States; and when we
consider that, in the Border States, not 500 escaped out of more than
1,000,000 slaves in 1860, while near 600 escaped in 1850 out of 910,000,
and that at the two periods near 800 are reported to have escaped from the
more Southern slave-holding States, the fact becomes evident that the escape
of this class of persons, while rapidly decreasing in ratio in the Border Slave
States, occurs independent of proximity to a free population, being, in
the nature of things, incident to the relation of master and slave.
“ It will scarcely be alleged that these returns are not reliable, being,
as they are, made by the persons directly interestec), who would be no
more likely to err in the number lost than in those retained. Fortunately,
however, other means exist of proring the correctness of the results
ascertained, by noting the increase of the free coloured population,
which, with all its artificial accretions, is proven by the census to be less
than 13 per cent. in the last ten years in the Free States, whereas the
slaves have increased 233 per cent., presenting a natural augmentation
altogether conclusive against much loss by escapes; the natural increase
being equal to that of the most favoured nations, irrespective of immi-
gration, and greater than that of any country in Europe for the same
period, and this in spite of the 20,000 manumissions which are beliered
to have occurred in the past ten years. An additional evidence of the
slave population having been attended from year to year, up to the
present time, with fewer vicissitudes, is further furnished by the fact
that the free coloured population, which from 1820 to 1830 increased at
the rate of 36 per cent., in 1840 exhibited but 204 per cent. increase,
gradually declining to 1860, when the increase throughout the United
States was but 1 per cent. per annum.”
30
THE TARIFF.
Chap. I.
to the consumer of the imported goods as to the pro-
ducer of the exports which paid for them. These consisted
chiefly of raw products, while the imports were chiefly
manufactured goods; and of the former the great bulk
had until recently come from the South, the official
returns for 1840 giving to the South in round numbers
78,000,000 dollars (of which more than 61,000,000 dollars
represented raw cotton), to the West 18,000,000 dollars,
and to the East somewhat less than 5,400,000 dollars. I
Immigration, the extension of the Western railways,
with the abolition of protective duties in England, and
the generally increased demand for food in Europe, had
indeed, within the twenty years ensuing, tripled the
exports from the West: they stood in 1860 at 61,000,000
dollars in round numbers, and those of the East at
26,000,000 dollars, but the South exported in that year
not less than 229,000,000 dollars. The South then, it
was urged, in this way alone paid more than her share of
the general charges of the Union. But the tariff, it was
added—and on this the chief stress was laid-had been
made to serve, not only for revenue, but for protection;
and the Southerners complained, with justice, that
they were compelled to pay higher prices for all the
things they wanted most, in order that the mill-owners
and iron-masters of the Northern and Middle States
might be enabled to manufacture goods at a profit. To
this it was answered, as it has often been answered else-
where, that the encouragement of native industry was
for the benefit of the whole nation, and that those who
had to pay for it ought to resign themselves to the
sacrifice. The controversy is one with which we are
familiar, and it had in America no special character
beyond what it owed to its connection with the slavery
question, to the peculiar structure of the Union, and the
local distribution of the great branches of industry.
1 American Annual Cyclopædia for 1861, p. 100.
THE TARIFF.
31
The tariff underwent in fact ten or twelve changes Chap. I.
during the forty years preceding 1860, not in one uni-
form direction, the planting and maritime States fighting
against the protective system with varying success,
and not with uniform consistency. In 1832 the total
revenue from import duties had risen to nearly 50 per
cent. of the aggregate value of the goods subject to
duty; and it was in that year that South Carolina broke
into open resistance, which was partly overcome by the
resolute firmness of President Jackson, partly bought off
by the large prospective reductions made in the Com-
promise Tariff of Mr. Clay. The scale had been raised
in 1842; lowered, on the whole, in 1846, when the
ad valorem principle was made general ; and lowered
again considerably in 1857. The duties, however, on
iron, woollen, and manufactured cotton goods, though
not so high as formerly, were still protective. Sugar
was protected for the benefit of Louisiana, as iron was
for that of Pennsylvania, lead for Missouri, and hemp
for Kentucky. Tea and coffee had long been admitted
duty free. Of the changes made by the Morrill Tariff
I do not speak; they did not become law until after the
Secession, and have therefore no place among its causes
or its apologies.)
1 In the foregoing account of the grievances of the South, and of the
state of feeling there, I have relied on speeches delivered by prominent
Southerners in Congress and elsewhere before the Secession, and on the
manifestoes published afterwards.
CHAPTER II.
Parties in the United States...The Disorganizing Influence of the Slavery
Question.--Elections to the Presidency from 1848 to 1860 —Election
of President Lincoln.-Constitutioral and Moral Aspects of " Seces-
sion."
In America, as in England, that lower form of
public spirit which we call the spirit of party-low
sometimes to the verge of baseness, but useful as an
antidote to mere selfishness, laziness, and indecision,
and as an engine for working out great political aims-
has never been wanting; and there, as here, the need
for the stimulant has been strengthened by habit. The
general cleavage, if I may so say, of party organization
has been determined by the structure of the Republic
itself, which in its earlier form was a mere federation or
perpetual league of independent communities, and still
has imbedded in it a substantial element of federalism.
Under such a Constitution, wherever it exists, there will
always be persons inclined to strengthen the General
Government, and side with it against the Local Govern-
ments as often as the limits of its authority are in
question, and other persons whom feeling or opinion
lead the opposite way. Two parties, therefore, have
always divided the American commonwealth; they were
in existence, indeed, before the Constitution was framed,
and it was shaped by their opposing influences. The
great States of Virginia, Pennsylvania, and Massa-
chusetts, with the Carolinas and Georgia, then formed
the Union party, which was kept in check by a minority
possessing less than half their population and not a
PARTIES IN UNITED STATES.
33
fourth of their area, and composed of New York, New Chap. II.
Jersey, Connecticut, Maryland, and Delaware. They
have at different times borne various names, more or
less arbitrarily chosen, and only expressing, as it seems,
the pretensions of each to be the true representatives
of the founders of the commonwealth; the Democrats
were once Republicans; the Republicans of to-day are
successors of the Whigs, who had originally called them-
selves Federalists. But these parties, each carefully dis-
ciplined, and exercised, by the recurrence of elections
of all kinds at very short intervals, in frequent trials of
strength, have not in reality had much to fight about
beyond the disposal of offices and emoluments; for the
Constitution, working with a smoothness which does
honour to the sagacity of its framers, has given rise in
practice to few questions on which they could directly
disagree. They have thrown their strength, therefore,
into other questions, often local and temporary; and
they have been themselves split and traversed irregu-
larly by subdivisions, which perplex the observer by
their number and apparent capriciousness. To these
circumstances—to a political activity which, healthy
and bracing as it is, may be called excessive compared
with the objects on which it spends itself-and to the
vastness of the field over which every great canvass
must extend, the reproach of shiftiness, which Americans
themselves are apt to level at their foremost politicians,
is probably due. At every election to the President's
chair many different interests have to be gained, and
jarring opinions harmonized by judicious management;
new “platforms,” or confessions of faith, have to be
constructed; and the “planking” of these fabrics—that
is, the choice and arrangement of the party tenets to be
insisted on-is often a pattern of ingenuity and skill.
The Democratic party, which soon came to have its
chief seat in the Southern States, but had a large
organization everywhere and was especially strong in
D
34
PARTIES IN UNITED STATES.
Chap. II. New York, has usually been the more powerful of the
two. Its creed was the more popular; in the foreign
politics of the Union it took the more forward part; and
it has been the constant champion of annexations, which
are always popular. It had sided on the whole steadily
enough with the South, had opposed the claim advanced
on behalf of Congress to prohibit slavery in the Terri-
tories, and been warmly hostile to Abolitionism, following
in these respects the bias impressed on it by its cardinal
tenet, but yielding also to its party attachments and its
anxiety to secure the Southern vote for party ends.
As for the Whigs, they had undergone frequent and
severe reverses. More than once they had been utterly
disorganized. They had resisted the extension of slavery,
but not with unwavering firmness, disliking it as a body,
but caring above all things for the strength and stability
of the Union. Their greatest orator, Daniel Webster, had
late in life employed his splendid eloquence in advocating
the Compromise of 1850, and had strenuously urged
the duty of enforcing with alacrity the Fugitive Slave
Law. Although the strength of the party lay in the
North and West, it had many adherents in the South.
Their aid had carried the election of Harrison and Tyler
in 1840, and of General Taylor in 1848; and Harrison,
a Virginian born though resident in the North, had, as
Governor of the Indiana Territory, supported the petition
of the earlier settlers to be allowed to import slaves into
that region. Taylor, a Louisiana man and himself
a slaveholder, had earned his popularity by driving the
Mexicans out of Texas and winning a new dominion for
slavery.
Long before 1860, the advance of the slavery ques-
tion, its growing magnitude and trenchant edge, had
begun to threaten the demolition of both the great
parties. At the election of 1848, a considerable body of
Whigs and Democrats deserted their respective flags and
appeared in the field under the name of Free-soilers,
DISORGANIZATION OF PARTIES.
35
with candidates of their own. At Mr. Pierce's election Chap. II.
in 1852, the Free-soil vote sunk from 291,342 to 155,825;
most of the seceding Democrats had been induced to
return to their standard, and among the managers of
the Whig party the predominant feeling was anxiety for
peace. But in 1856 a great change had come. It had
been discovered that the Compromise measures of 1850,
the maintenance of which had formed a "plank” in the
Whig platform of 1852, were regarded by the Slave
States as having cancelled the older Compromise of 1820.
The struggle for Kansas and Nebraska had begun ; and
in the spring of the year an insulting speech, as it
was thought, delivered by a prominent Free-soiler,
Mr. Sumner, had been resented by a violent assault
within the walls of the Senate. The Whig party broke
and disappeared ; a large fragment joined the Free-soilers
and chose the title of Republicans; the remainder clung
still to a middle course, endeavoured to put the question
of slavery aside, and called themselves “ Americans," to
denote that they had no political creed beyond the duty
of upholding the laws and Constitution of the Union.
This insured the success of the Democrat, but it did not
escape observation that the votes recorded for the Repub-
lican and American candidates exceeded in the aggregate
those given to Buchanan. During his term of office,
several circumstances contributed to quicken the move-
ment of opinion. The judgment of the Supreme Court
in the case of Dred Scott was delivered immediately after
the accession of the new President. It ruled, first, that
Congress had no power to prohibit slavery in the Terri-
tories; secondly, that no coloured person of slave descent
was or ever could be an American citizen, or entitled to
sue as such in the Courts of the United States. The
Constitution seemed to require amendment, if this was
indeed a true interpretation of the Constitution. The
petty civil war waged in Kansas betweeen the Free-soil
settlers and the pioneers of slavery from Missouri did
D 2
36
CONFLICT OF PARTIES.
Chap. II. · more, perhaps, than any other cause to chafe the tempers
of both North and South, and render the breach irre-
concilable. In October 1859, a daring enthusiast who
had fought in Kansas, and who, had he lived three years
longer, would probably have made himself famous by
the union of austere piety with the skill and dash of a
partizan leader, made a desperate attempt to free and
arm the slaves in North Virginia, and actually succeeded
in surprising, with a little handful of devoted adherents,
the Federal arsenal at Harper's Ferry.
As Mr. Buchanan's term drew to a close, it became
apparent that at the next election an issue never dis-
tinctly raised before would be presented to the country;
that this issue would be sharp and clear; and that it
could hardly fail to complete the ruin of the old party
organization. When in April and May 1860 the party
conventions met, according to custom, to construct
their respective platforms and choose their candidates,
these anticipations were realized. The Republicans and
“ Americans” raised their former flags, the latter dis-
carding their title for a more expressive one, and calling
themselves the party of “ Constitutional Union.” But
the Democrats now broke, as the Whigs had previously
done, into two sections, the more moderate of which,
including all the delegates of Free States, except those
from California and Oregon, was content to affirm these
two principles
“That the Democratic party will abide by the decisions of the
Supreme Court of the United States on the questions of Constitutional
Law;
“That it is the duty of the United States to afford ample and complete
protection to all its citizens, whether at home or abroad, and whether
native or foreign."1
1 “Minority Report " adopted by the Charleston Democratic Con-
vention, Resolutions 2 and 3.
CONFLICT OF PARTIES.
37
By the more advanced it was insisted--
Chap. II.
- 1st. That the Government of a Territory organized by an Act of
Congress is provisional and temporary; and, during its existence, all
citizens of the United States have an equal right to settle with their
property in the Territory without their rights, either of person or pro-
perty, being destroyed or impaired by congressional or territorial legis.
lation.
“ 2nd. That it is the duty of the Federal Government, in all its
departments, to protect, when necessary, the rights of persons and
property in the Territories, and wherever else its constitutional authority
extends. .
“ 3rd. That when the settlers in a Territory having an adequate
population form a State Constitution, the right of sovereignty commences,
and, being consummated by admission into the Union, they stand on an
equal footing with the people of other States ; and the State thus orga-
nized ought to be admitted into the Federal Union, whether its consti-
tution prohibits or recognizes the institution of slavery.” 1
}
Both joined in denouncing the “Personal Liberty
Laws,” and in recommending the acquisition of Cuba.
The range of disagreement between the extremes on
both sides may be measured by comparing the resolu-
tions last quoted with those adapted at Chicago by the
Republican Convention on the same subject:-
“ 7. That the new dogma that the Constitution, of its own force,
carries slavery into any or all of the Territories of the United States, is
a dangerous political heresy, at variance with the explicit provisions of
that instrument itself, with contemporaneous exposition, and with legis-
lative and judicial precedent; is revolutionary in its tendency, and sub-
versive of the peace and harmony of the country.
“8. That the normal condition of all the territory of the United
States is that of Freedom. That, as our Republican fathers, when they
had abolished Slavery in all our national territory, ordained that no
person should be deprived of life, liberty, or property, without due
process of law, it becomes our duty, by legislation, whenever such legis-
lation is necessary, to maintain this provision of the Constitution against
all attempts to violate it; and we deny the authority of Congress, of a
territorial legislature, or of any individuals, to give legal existence to
slavery in any territory of the United States.” ?
1 “ Majority Report” rejected by the Convention, Resolutions
1, 2, and 3.
2 Resolutions 7 and 8,
38
CONFLICT OF PARTIES.
Chap. II.
There were thus four parties in the field, whose
views on the question practically chosen as the test of
political orthodoxy may be shortly stated as follows:-
1. The Republicans, not content with affirming the
moderate and reasonable propositions, that to exclude
slavery from the Territories was within the power of Con-
gress, and (subject to the supreme authority of Congress)
within that of the Territorial Legislatures, and that the
exercise of this power by Congress was expedient, went
further, and maintained that slavery neither had nor
could have legal existence in any Territory. The candi-
date of this party was Mr. Lincoln.
2. The “Seceding Democrats," as they were called,
affirmed on the contrary that slavery had legal exist-
ence, under the Constitution, in every Territory; that
the inhabitants, when formed into a State, could abolish
it if they thought fit; but that it could be excluded
in the meanwhile neither by the Territorial Legislature
nor by Congress. The candidate of this party was
Mr. Breckenridge, of Kentucky.
3. Another section of Democrats were understood to
hold that it might be excluded by the Territorial Legis-
latures, but not by Congress. Their candidate was
Mr. Douglas, of Illinois.
4. A fourth party, declaring that experience had
proved the mischievous effect of partisan platforms in
misleading the people, and in widening party divisions
and making them sectional, refused to recognize any
other political principle than " the Constitution of the
country, the Union of the States, and the enforcement
of the laws.' This party was represented by Mr. Bell,
of Tennessee.
The more moderate politicians—the men of less
9
1 This doctrine, commonly denoted by the phrases “ Popular Sove-
reignty” and “Squatter Sovereignty," was not clearly expressed in the
platform of the Charleston Convention, and is indeed hardly consistent
with it; but it was the ground practically taken throughout the canvass.
CONTEST FOR THE PRESIDENCY.
39
.
absolute convictions or less unflinching resolution, by Chap. II.
whom, in ordinary times, the action of parties is
restrained and controlled—were in this way sifted off,
and forced to mass themselves in separate bodies, whilst
the two great opposing interests, each represented by its
most thorough-going partizans, were brought face to
face and foot to foot with one another.
About six months had yet to elapse before the day
fixed by Congress for the choice of electors—a choice
which virtually elects the President himself, since the
electors are all pledged men, and their proceedings a
mere formality. This interval was spent in a feverishly
active canvass, in the course of which many fruitless
endeavours were made to effect coalitions. On the 6th
November, 1860, the vote was taken throughout the
Union with the following result:-
NORTH AND WEST.
[These Tables are taken from Macpherson's Political History of the
Rebellion.]
Lincoln.
Breckenridge.
Douglas.
Bell.
California
Connecticut
Illinois
Indiana
Iowa
Maine
Massachusetts
Michigan
Minnesota
New Hampshire
New Jersey
New York
Ohio..
Oregon
Pennsylvania
Rhode Island
Vermont
Wisconsin
39,173
43,792
172,161
139,033
70,409
62,811
106,533
88,480
22,069
37,519
58,324
362,646
231,610
5,270
268,030
12,244
33,808
86,110
34,334
14,641
2,404
12,295
1,048
6,368
5,939
805
748
2,112
38,516
15,522
160,215
115,509
55,111
26,693
34,372
65,057
11,920
25,881
62,8011
312,5101
187,232
3,951
16,765
7,7071
6,849
65,021
6,817
3,291
4,913
5,306
1,763
2,046
22,331
405
62
441
1
11,405
5,006
178,871
12,194
183
12,776
218
888
1,969
161
Total
1,840,022
277,082
1,211,632
74,658
1 In these States electors for Breckenridge, for Douglas, and for Bell,
were combined in one ticket, and voted for in the lump by supporters of
each of those candidates.
40
ELECTION OF LINCOLN.
Chap. II.
MIDDLE OR BORDER SLAVE STATES.
Lincoln.
Breckenridge.
Douglas.
Bell.
Arkansas
Delaware
Maryland
Kentucky
Missouri
North Carolina
Tennessee
Virginia
3,815
2,294
1,364
17,028
28,732
7,337
42,482
53,143
31,317
48,539
64,709
74,323
5,227
1,023
5,966
25,651
58,801
2,701
11,350
16,290
20,094
3,864
41,760
66,058
58,372
44,990
69,274
74,681
1,929
Total
26,430
350,582
127,009
379,093
SOUTHERN OR COTTON STATES.
Alabama
Florida
Georgia
Louisiana
Mississippi
South Carolina?
Texas
48,831 13,651
8,543
367
51,889 11,590
22,681
7,625
40,797
3,283
No popular Vote.
47,548
27,875
5,437
42,886
20,204
25,040
15,438
Total
220,289
36,516
136,880
Grand Total
1,866,452
847,953
1,375,157
590,631
Lincoln over Douglas
Breckenridge
Bell
Other Candidates over Lincoln
491,295
1,018,499
1,275,821
947,289
:
The events which immediately followed give import-
ance to these figures. The candidate who had an over-
whelming ascendancy in the North and West failed, as
we see, to obtain a single vote in the Cotton States; the
candidate who in those States occupied a corresponding
position had an insignificant minority in the North and
West. In the Middle or Border States the most powerful
party was that of Constitutional Union. Here lay the
strength of this party, which was feeble in the West and
North, but in the Cotton States themselves mustered
about half as many as the supporters of Breckenridge.
Even in the Free States the two sections of the Demo-
cratic party, taken together, were to the Republicans in
proportion of seven to nine, whilst in the whole Union
1 The vote of this State, in which the electors are chosen by the
Legislature, was cast for Breckenridge. This should be taken into
account in a comparison of numbers.
LEGAL ASPECTS OF SECESSION.
41
they were as twelve to ten. Finally, Mr. Lincoln, Chap. II.
though he headed the poll, had scarcely two-fifths of
the votes recorded.
We have now followed the course of this great
quarrel to the very brink of the Civil War. On the
legal and moral aspects of it I shall permit myself only
a very few words.
few words. To the Government of Great Britain
and other European Governments, the war, when it
came, came as a fact, which they could not help recog-
nizing, but they had no part or concern in the discords
out of which it sprang. They had been, and they
continued to be, friends to the whole American people
thus unhappily divided; and profound as was their
interest in the future of the Republic, they rightly
resolved to stand altogether aloof from the contest on
which that future appeared to depend. Whether an
aggrieved State had a right to secede from the Union,
or whether the Southern States had grievances, they
were not, as Governments, called upon to judge; re-
maining neutral, they had but to pursue the line of
conduct traced out for neutral Powers by the law of
nations.
By the South it was insisted that the Union was
composed of States united on certain terms which are
expressed in the Constitution; that a substantial viola-
tion of these terms would entitle any State to secede;
and that they had been substantially violated. On the
thesis embodied in the first and second of these proposi-
tions much has been written and said; but the contro-
versy, like most attempts to discuss a grave question of
conduct on high abstract grounds, was really barren and
inconclusive, and the research spent upon it only made it
appear more difficult than it really was. If the supposed
right to secede be represented as a legal right, it is surely
enough to ask whether, on an indictment for treason
against the United States, a plea that, before the com-
mitting of the alleged treason, the State of which the
42
LEGAL ASPECTS OF SECESSION.
Chap. II.
accused was a citizen had for good cause seceded from
the Union could under any circumstances have been a
legal defence? It would have been impossible, I con-
ceive, to state such a defence in any form in which it
would have been legally admissible; and this is only
another way of saying that secession, instead of being
guaranteed by the law of the United States as a right,
is absolutely prohibited by it as a crime. From a con-
stitutional point of view it is only a particular form of
rebellion. This was the law under which the people of
the South lived, and to which they were subject, in
common with the people of the North. The question
therefore must be whether, though punishable by law, it
was morally justifiable, as rebellion sometimes may be,
though it very rarely is. But as soon as this question is
stated, we see that it opens an inquiry of the widest
kind, that it admits every argument of expediency or
justice that may be urged for and against rebellions, and
amongst these, but not to the exclusion of them, such
arguments as may be drawn from the peculiar Constitu-
tion of the United States. The abstract assertion that
the Southern States “had a right" to secede is merely
illusory; it assumes the question which it affects to
solve, and conceals this assumption by disguising it as a
proposition of constitutional law.
To say that the
people composing a State would be morally justified not
only in rebelling against the law, but in destroying at a
blow the whole mass of interests dependent on the
Union, without any reason at all except that they or a
majority of them so willed it, would be absurd; we are
therefore always thrown back on the question whether
the reasons which they have to allege are sufficient.
What then are those peculiarities of the American
Constitution on which so much stress has been laid ?
Whoever reads the Constitution attentively will see,
even without the aid of its history, and with that still
more clearly, that it establishes a political society resem-
i
+
LEGAL ASPECTS OF SECESSION.
43
bling others, but with this characteristic feature, that Chap. II.
the mass of powers which in most countries is gathered
into one hand or set of hands is there divided in unequal
shares between a general Government, composed of a
Legislature and an Executive, and many local and State
governments respectively organized on the same model.
Each of these authorities, the general and the local, has
within its own sphere power to make and execute laws,
in the exercise of which it is perfectly independent of
the other.) The apportionment limits the power of
each, and therefore gives absolute sovereignty to neither.
According to the Constitution, Congress could no more
abolish slavery in Alabama whilst slavery existed there,
or prohibit polygamy in any State which might think fit
to allow polygamy, than it could establish slavery or
polygamy in Massachusetts. Congress, therefore, is
not sovereign or supreme in the precise sense of those
words, and for the same reason those by whom Congress
is elected are not sovereign or supreme.
But behind
both general and local authorities there is a power,
intricate in respect of its machinery, and extremely
difficult to set in motion, requiring the concurrence of
three-fourths of the States acting by their Legislatures
or in Conventions, which can amend the Constitution
itself. This power is unlimited, or very nearly so.
It could abolish slavery everywhere or establish it
everywhere, and we have lately seen examples of its
exercise. A proposed Amendment to the Constitution,
1 The language of the Supreme Court in Ableman v. Booth (Howard's R.,
xxi, 506) is accurate, if the word sovereignty be not taken in its strict
sense“ The powers of the general Government and of the State,
although both exist and are exercised within the same territorial limits,
are yet separate and distinct sovereignties, acting separately and
independently of each other within their respective spheres. And the
sphere of action appropriated to the United States is as far beyond the
reach of the judicial process issued by a State Judge or a State Court as
if the line of division was traced by landmarks and monuments visible to
the eye.”
44
LEGAL ASPECTS OF SECESSION.
Chap. II.
recommended by Congress early in 1861 but never
ratified, purported to provide that no future amendment
should authorize Congress to abolish slavery in any
State. The 13th Amendment abolished slavery.
What are the effects of this peculiar limitation and dis-
tribution of powers ? They have kept alive, as I observed
in the preceding chapter, the spirit of local independence
in the States, and local allegiance in the people of the
States; they appear to have clouded and confused, more
or less, the sense of allegiance to the sovereignty of the
nation. By restricting also the powers of the general
Government, they restrict the number of cases in which
resistance to the general Government is unlawful. So
far as regards the question we are now concerned with,
they seem to have no other effects than these.
I have endeavoured to state, accurately and fairly, the
1 An American of the North will hardly acknowledge this, because
he is hardly sensible of it; but it was clearly so in the South. The
difference is well expressed in the following extract quoted by Mr. Greeley
(American Conflict, p. 427) from a Charleston letter in the New York
Herald of 9th November, 1860 :-
66 It must be understood that there is a radical difference in the
patriotism of a Northerner and a Southerner. The Northerner invari-
ably considers himself as a citizen of the Union; he regards the Federal
army and navy as his country's army and navy, and looks upon the
Government at Washington as a great consolidated organization, of
which he forms an integral part, and to which whatever love of country
he may possess is directed. Beyond paying the State taxes, voting for
State officers, and seeking redress primarily in the State Courts, he has
very little idea of any special fealty being due to his own particular
State.
“ The Southerner, on the other hand, generally (and the South Caro-
linian always) repudiates this theory of consolidation. He feels that he
owes allegiance to his own State, and to her alone ; be is jealous of her
rights and honour, and will never admit that any step taken in obedience
to her mandate can involve the idea of treason. The Federal Govern-
ment is, in his eyes, but the embodiment of certain powers delegated by
the States from motives of policy. Let those motives be once removed
or counterbalanced, and he holds that the State has no longer any reason
for maintaining a connection which it was her right, at any time, to have
dissolved.”
PLEAS FOR SECESSION.
45
only reasons which were ever alleged for secession. We Chap. II.
are accustomed to associate in our minds the idea of
revolt with that of grinding and intolerable oppression,
or at the least of the privation of some rights, substan-
tial in themselves, or dear to those who have been
accustomed to enjoy them. But the people of the
Southern States had suffered no oppression.
They had
been deprived of no rights. The internal government
of these States had been perfectly free. In the direction
of the general Government, in the nomination of the
Executive, in the making and administration of the laws,
they had enjoyed a more than ample share. Their
industry was prosperous, and, though unthrifty and pre-
carious, yielded large returns. On the very question
upon which the chief stress had been laid, no legislation,
no action, either of Congress or of the Executive, could
possibly take place, which would materially alter their
condition or affect their interests. If any danger
threatened the species of property which was so valu-
able to them, it was still remote and obscure. To the
Republicans themselves the abolition of slavery had not
become a definite aim; it could be reached only with
the consent of the slaveholders, or by a subversion of the
Constitution, and it was surrounded besides by difficulties
of various kinds which appeared insurmountable. Those
who avowed that they wished for it, with the exception
of a small handful of zealous agitators, looked forward
to the accomplishment of their wish by indirect and
gradual methods, without disturbance of the rights of
property, and at an indefinite distance of time.
And the Republicans, though the dissensions of their
adversaries had enabled them to carry their candidate,
were a minority in the House of Representatives, a
minority in the Senate, a minority in the Union. The
next election would probably have sent a Democratic
President to the White House. I see no reason to doubt
that, if the South had accepted Lincoln as it accepted
46
MOTIVES OF SECESSION.
Chap. II.
Harrison and Taylor, slavery would at this moment have
been as firmly established, and slave-industry at least as
profitable, as they were ten years ago.
The orators and agitators of the South, however,
reasoned otherwise. They insisted that the election of a
President by a “sectional” vote that is, by the votes
of a majority composed of persons living north of a
given geographical line—was an injury and a defiance
to those who lived south of it; and they prophesied that
the rights and institutions of the Southern States would
soon be at the mercy of this majority. But the more
ardent and plain-spoken among them frankly avowed
that Mr. Lincoln's election was, in their eyes, only a
favourable opportunity for the execution of a long-
cherished design. The interests of North and South,
they affirmed, had become palpably divergent, and it
was for the advantage of the South to cut herself adrift
and form an independent Confederacy of her own. In-
dependent, she would be safer, stronger, richer, than in
union-richer when she had no longer to share the
profits of her industry with Northern merchants and
manufacturers, safer and more powerful when her insti-
tutions and her policy should be under her own exclusive
control.
That arguments so frail and calculations so unstable
as these should have been thought to warrant so tremen-
dous a conclusion, may well appear unaccountable.
But behind them lay the true moving causes-an in-
creasing sense of insecurity, a profound estrangement of
feeling, a temperament suspicious of insult and quick to
take fire, and the irritation engendered by a long and
obstinate struggle. No election could be more strictly
constitutional than Mr. Lincoln's, or more irreproachably
fair. But it had in reality pitted against each other not
parties merely but portions of the Union, animated by
conflicting interests and passions, and had brought them
into the sharpest antagonism. This was the conjuncture
MOTIVES OF SECESSION.
47
of circumstances which Jefferson had foreboded forty Chap. II.
years before, consoling himself with the thought that he
should not live to see his fears realized. The mastery
fell into the hands of the more eager and restless spirits
a mastery hard to resist in a country where popular
feeling runs with so strong a current as in the United
States. Prudent and cautious men yielded to the stream,
or were swept away by it; and the mass of the people
prepared, with a sanguine audacity which afterwards
rose into obstinate courage, to defy the terrible risk of a
civil war.
2
1 66
Although I had laid down as a law to myself, never to write, talk,
or even think of politics, to know nothing of public affairs, and therefore
had ceased to read newspapers, yet this Missouri question aroused and
filled me with alarm. The old schism of Federal and Republican threatened
nothing, because it existed in every State, and united them together by
the fraternism of party. But the coincidence of a marked principle,
moral and political, with a geographical line, once conceived, I feared
would never more be obliterated from the mind; that it would be recur-
ring on every occasion, and renewing irritations until it would kindle
such mutual and mortal hatred as to render separation preferable to
eternal discord. I have erer been amongst the sanguine in believing
that our Union would be of long duration. I now doubt it much, and
see the event at no great distance, and the direct consequence of this
question, not by the line which has been so confidently counted on,—the
laws of nature control this,—but by the Potomac, Ohio, and Missouri, or
more probably the Mississippi upwards to our northern boundary. My
only comfort and confidence is that I shall not live to see this.”
Memoirs and Correspondence, vol. iv, p. 331.
2 The Albany Evening Journal, a Republican paper, on the 30th
of November, 1860, after speaking of the effect which Mr. Calhoun's
influence had produced in South Carolina, described the feeling of the
South in the following terms :
“ The contagion extended to other Southern States; and, by diligence,
activity, discipline, and organization, the whole people of the Gulf States
have come to sympathize with their leaders. The masses are, in their
readiness for civil war, in advance of their leaders. They have been
educated to believe us their enemies. This has been effected by sys-
tematic misrepresentations of the sentiments and feelings of the North.
The result of all this is, that, while the Southern people, with a unani-
mity not generally understood, are impatient for disunion, more than one
half of them are acting in utter ignorance of the intentions, views, and
feelings of the North. Nor will the leaders permit them to be disabused.
48
MOTIVES OF SECESSION.
Chap. II. - Those leaders know that Mr. Lincoln will administer the Government in
strict and impartial obedience to the Constitution and laws, seeking only
the safety and welfare of the whole people, through the prosperity and
glory of the Union. For this reason, they precipitate the conflict;
fearing that, if they wait for a provocation, none will be furnished, and
that, without fuel, their fires must be extinguished.
" The Disunion sentiment is paramount in at least seven States;
while it divides and distracts as many more. Nor is it wise to deceive
ourselves with the impression that the South is not in earnest. It is in
earnest; and the sentiment has taken hold of all classes with such blind
vehemence as to 'crush out' the Union sentiment."
“Disaffection lurked,' wrote Mr. Seward in 1861, “if it did not
openly avow itself in every department and in every bureau, in every
regiment, and in every ship of war; in the Post-office and in the Custom-
house, and in every Legation and Consulate from London to Calcutta.
Of 4,470 officers in the public service, civil and military, 2,154 were
representatives of States where the revolutionary movement was openly
advocated and urged, even if not actually organized.' "--Mr. Seward to
Mr. Adams, 10th April, 1861.
CHAPTER III.
Revolt of South Carolina, Georgia, and the Gulf States.-Organization
of the Southern Confederacy.–Attitude of President Buchanan and
of the Federal Congress.--Anxiety to avert a Conflict.—Fruitless
endeavours to devise a Plan of Compromise.
LONG before the election of 1860 the chances of
Secession, and the arguments for it, had been canvassed
throughout the South without any attempt at conceal-
ment; it had been openly threatened within the walls
of Congress, and the 6th November found the plans of
the leading Secessionists, if not complete, sufficiently
matured for immediate action.
The foremost part in this rash enterprise was accepted,
or assumed, by South Carolina. The South Carolinian
is reputed hasty and impetuous by nature; the institu-
tions of the State have retained a tincture of aristocracy,
and nowhere else in America has so commanding an
influence been commonly exercised by a few opulent
families. It has been her pride, as a State, to be prompt
in decision and fearless in action. The response of the
Colony, in 1765, to the Massachusetts Circular was
among the earliest and boldest steps towards American
independence. “South Carolina," in the somewhat over-
coloured language of Mr. Bancroft, “founded American
Union.”] Her fiery impatience in 1832 hurried her alone
1 “ As the united American people spread through the vast expanse
over which their jurisdiction now extends, be it remembered that the
blessing of uuion is due to the warmheartedness of South Carolina. She
was all alive and felt at every pore.'” History of the American
Revolution," vol. ii, p. 335. .
E
50
REVOLT OF SEVEN STATES.
!
Chap. III. to the very verge of revolt from that Union; and she
was the first in 1860 to raise her hand against it.
The South Carolina Legislature had assembled on
the 4th November. On the 7th, with hardly the for-
mality of a discussion, an Act was passed summoning
a Convention of delegates to be elected by the inhabi-
tants of the State, and to meet at Columbia on the 17th
December following. The Convention met, adjourned
to Charleston, and immediately appointed a Committee
to prepare an Ordinance of Secession. So rapid were its
proceedings, that on the 20th the Ordinance was pre-
sented, and adopted by a unanimous vote; and South
Carolina was on the same day solemnly proclaimed
an independent commonwealth. )
Her example was
followed in quick succession by Florida, Mississippi,
Alabama, Georgia, Louisiana, and Texas. In all of these
States Conventions were held, on the summons either
of the Legislature or of the Governor, and Ordinances
of Secession passed; and each, one by one, declared itself
free, sovereign, and independent. The dates of these
proceedings are shown in the subjoined Table :-
State.
Convention met. Ordinance passed.
Majority in
Convention.
3rd Jan. 1861
7th
>
7th
Florida
Mississippi
Alabama
Georgia
Louisiana
Texas
10th Jan. 1861
9th
llth
19th
25th
1st Feb. 1861
62 to 7
84 to 15
61 to 39
208 to 89
113 to 17
166 to 7
17th
23rd
28th
1 This Ordinance, on the model of which those of other seceding
States were afterwards framed, was in the following terms :-
“ An Ordinance to dissolve the Union between the State of South
Carolina and other States United with her under the compact
entitled " The Constitution of the United States of America.'
“We, the people of the State of South Carolina, in Convention assem-
bled, do declare and ordain, and it is hereby declared and ordained, that the
Ordinance adopted by us in Convention on the 23rd day of May, in the
year of our Lord 1788, whereby the Constitution of the United States was
ratified, and also all Acts and parts of Acts of the General Assembly of
REVOLT OF SEVEN STATES.
51
:
In Texas the Ordinance, after being adopted by the Chap. III.
Convention, was submitted to the people of the State
for ratification. The majority for secession was 34,794,
the minority against it 11,235. The Convention in
this State was summoned by a private requisition, but
was sanctioned by the Legislature.
All marks of the Federal sovereignty within the
seceding States were immediately effaced, and all the
instruments through which the general Government
had exercised its constitutional powers were destroyed,
or appropriated by the State Governments. The Circuit
and District Courts ceased to sit, and the Federal tri-
bunals were supplanted by those of the State; the State
authorities took possession of custom-houses and post-
offices; Federal officials resigned, or were dismissed, or
passed into the service of the State and took the oath
of allegiance to it. The Federal arsenals at Charleston,
Mount Vernon, Augusta, Baton Rouge, and Mobile,
the Pensacola navy-yard, the forts commanding the
approaches to Savannah, Mobile, and New Orleans,
were seized and wrested from the Federal Government,
without a shot fired or a blow struck, as well as Forts
Moultrie, Castle Pinckney, and Sullivan's Island in
South Carolina, and Forts Barrancas and McRae, near
Pensacola. All of these seizures were effected before
the end of January, and some of them without waiting
for the passing of a Secession Ordinance, the active
secessionists throughout the South being in regular
correspondence with one another, and the Governors for
the most part warmly devoted to the cause. In Texas,
where the United States had a regular force about
2,500 strong, Commissioners were sent to the head-
quarters of the officer commanding the department, with
the State ratifying amendments of the said Constitution, are hereby
repealed, and the Union now subsisting between South Carolina and other
States, under the name of The United States of America,' is hereby
dissolved."-American Annual Cyclopædia for 1861, p. 650.
E 2
52
COMPLETENESS OF THE REVOLT.
Chap. III. instructions to demand the withdrawal of the troops and
a surrender of the ordnance stores and public property
under his control. A military force was organized to
support these demands. General Twiggs, a Georgian
by birth and an officer of long service, yielded to them,
and marched his soldiers to the coast, whence they
were conveyed to the North--an act of timidity or
supineness for which he was soon afterwards cashiered.
Two detachments, which had been left behind in his
retreat, subsequently surrendered to a superior force and
were dismissed on parole. Two military posts of some
strength--Fort Sumter at the mouth of Charleston
harbour, and Fort Pickens situated on the extremity of
a long island which bars the entrance of Pensacola Bay
--continued to be held for the United States by officers
whose fidelity was unshaken; but, except at these
isolated points, the authority of the Federal Government
had everywhere throughout the seceding States ceased
to be acknowledged, and every symbol of the Union had
disappeared.
The revolt of this group of States was effected, as we
have seen, not suddenly or simultaneously, but by a
series of acts extending over a considerable time, with-
out violence or disorder, and with as near an approach
perhaps as a revolt is capable of to formal regularity of
proceeding. The declaration of independence was pre-
ceded in every case by the holding of a Convention; and,
in the choice of delegates, “secession or no secession"
was known to be the real issue presented to the electors.
The authority of the Union was dethroned and de facto
abolished; but in the internal administration of the
several States there was no violent displacement of
power, since none was called for, and in most instances
there was no change at all. If the South had suc-
ceeded in severing itself from the Union, the complete
sovereignty of these States, as regards their internal
government and laws, must have been held to date from
THE SOUTH NOT UNANIMOUS.
53
1
their respective declarations. This could hardly be dis- Chap. III.
puted at least by an American jurist.
Yet in most of these States, if not in all, opinion
during the earlier stages of the revolt was far from
being unanimous. The division was especially marked
in Alabama,—where the northern and upland counties
were generally Unionist,-in Mississippi, Louisiana, and
Texas. Men whose station, character, and experience
made them respectable, were found to urge, not only
that secession was not justified by the election of a Re-
publican President, but that it was inexpedient. The
South and its institutions, they urged, even slavery
itself, were really safer under the Constitution than they
would be if the Union were dissolved. No one spoke
more eloquently in this sense than Mr. A. H. Stephens,
of Georgia, who, scarcely three months later, became
Vice-President of the Confederacy. Few, however
appear to have directly opposed Secession; the many
who dreaded the movement, and followed it reluctantly,
confined themselves for the most part to counselling delay
and co-operation among the Slave States, in preference
to separate action. But opposition and reluctance were
everywhere overborne and silenced, sometimes perhaps
by direct intimidation, but more generally by that instinc-
tive deference which Americans, like Englishmen, are
accustomed to yield to the decision of majorities, as well
as by the strong and blinding attachment which the
Southerner cherished towards his State. To his appre-
1 See the well-known case of McIlvainev. Coxe's Lessee, Cranch, iv, 212.
2 Of the state of feeling in Texas General Houston wrote as follows,
in September 1861 :
“ The time has been when there was a powerful Union sentiment in
Texas, and a willingness on the part of many true patriots to give
Mr. Lincoln a fair trial in the administration of the Federal Government.
There was also a time when many of the best men in the country hoped
that by an energetic demonstration they might bring about a recon-
struction of the Government upon such principles as might guarantee
the rights of the South. These times have passed by, while Union and
reconstruction have become obsolete terms, or, if even mentioned, it is
2
54
ORGANIZATION OF THE CONFEDERACY.
Chap. III, hension this was patriotism ; duty to his State ranked
high, perhaps highest, among his public duties. With
men like Lee and Maury, and many thousands more, this
was the ruling motive. The sword once drawn, such
men, though they would never have unsheathed it
voluntarily, felt bound to side with their own Govern-
ment and their own people, threw themselves into the
cause with unhesitating gallantry, and adhered to it with
unswerving constancy. And yet I think it must always
be a doubtful question whether there would ever have
been a secession at all, but for the deliberate temerity of
South Carolina.
Even before the revolt was consummated, prepara-
tions had been made in the seceding States to form a
Confederacy for their common government and defence.
Delegates from all except Texas, which had not yet
seceded, met on the 4th February at the town of Mont-
gomery in Alabama, and proceeded to organize them-
selves as a General Convention and Provisional Congress
of the" Confederate States of North America,” to establish
a temporary form of Government, and elect a President
and Vice-President. For the Presidency their choice
fell on Mr. Jefferson Davis, a Mississippi planter, who
had sat as Senator in Congress, and had long exercised a
commanding influence among the politicians of the
South. Educated at the Military Academy at West Point,
he had served in Mexico, and had held the office of
Secretary at War. Mr. Davis hastened at once to
Montgomery, took the oath of office, formed a Cabinet,
and threw himself into the arduous work of organizing
the resources of the Confederacy. On the 11th March
the temporary form of Government, which had been
only in reference to past events. If there is any Union sentiment in
Texas, I am not apprised of it."-American Annual Cyclopædia for 1861,
p. 692.
General Houston had himself been unwilling to follow the movement,
and bad been deprived of the Governorship for refusing to take the oath
of allegiance to the Confederacy.
ORGANIZATION OF THE CONFEDERACY.
55
borrowed from the Constitution of the United States, Chap. III.
was superseded by a permanent Constitution, framed on
the same general model, but containing an express pro-
hibition of protective duties, and a declaration that in
all new territories which the Confederate States might
acquire, negro slavery, as it existed in those States,
should be recognized and protected by the territorial
Legislatures and by Congress. This Constitution was
forthwith submitted for ratification in each of the seven
seceding States, not to the popular suffrage, but to the
Convention by whose instrumentality the work of seces-
sion had been accomplished; and each, by a vote of its
Convention, laid down its lately acquired independence,
and took its place within the new Confederacy.
The internal affairs of the Confederate Govern-
ment,” says a painstaking and generally accurate
chronicler, “were early placed upon an organized and
efficient system. The withdrawal from the United
States and the creation of a Confederacy caused but few
changes, and these consisted rather in the persons who
held public offices than in any change in the nature of
the offices themselves. The transmission of the mails
was gradually suspended by the Federal Government
after the secession of each State, and was entirely
assumed by the Confederate Government within the
limits of the Confederate States after the 31st of May.
The Courts of the United States were also organized as
Courts of the Confederate States, and the officers of the
army and navy who resigned became officers in the
1 The Convention sat and acted as a Provisional Congress from
February 1861 to February 1862, when it was succeeded by the first
regular Congress of the Confederate States, which sat for two years.
The second Congress met on the 19th February, 1864, and ceased to
exist on the dissolution of the Confederacy, Mr. Davis was chosen
Provisional President for one year, from 18th February, 1861, to 19th
February, 1862. In the autumn of 1861 he was elected, under the
Constitution, . President for six years, and held office till the same
catastrophe.
56
CONDUCT OF PRESIDENT BUCHANAN.
Chap. III. army and navy of the Confederate States. Revenue
officers, in like manner, continued as such under the
new Government.”l
What, during the progress of the events which have
been briefly told, was the attitude of the Federal
Government and of the States which remained faithful
to the Union ?
The vote of November, momentous as were the
consequences attached to it, made no immediate change
in the Federal Executive. In the eye of the law that
vote did but nominate 303 persons, whose duty it was
to elect a President; the election itself took place early
in December, and the votes then given were transmitted
under seal to Washington, to be opened and counted on
a stated day, in the presence of the House of Repre-
sentatives and the Senate; at the conclusion of this
ceremony, which took place on the 13th February,
the name of the successful candidate was for the first
time publicly announced by the Vice-President, Mr.
Breckinridge, and on the 4th of March he entered on
the duties of his office. The object which the framers of
the Constitution contemplated when they made the
election indirect is frustrated, for, except in form, the
election is not indirect; the delay which they deemed
necessary has been made unnecessary by the increasing
swiftness of communications; but the old machinery is
retained, and for four months after the choice of the
nation has been ascertained the President elect con-
1 American Annual Cyclopædia for 1861, p. 1512.
Mr. Davis, in his Message to Congress (29th April, 1861), said, “Since
your adjournment all the Courts, with the exception of those of Missis-
sippi and Texas, have been organized by the appointment of marshals
and district attorneys, and are now prepared for the exercise of their
functions. In the two States just named the gentlemen confirmed as
Judges declined to accept the appointment, and no nominations have yet
been made to fill the vacancies.”— See also Acts and Resolutions of the
Provisional Congress of the Confederate States, Tyler & Co., Richmond, ,
1861.
CONDUCT OF PRESIDENT BUCHANAN.
57
tinues to be a private citizen, and the Government to Chap. III.
be administered as before by the person whom he is
destined to succeed. When the change of President
denotes also a change of policy, this arrangement has
its inconveniences, which are liable to become serious
should occasion arise for prompt and decided action.
Mr. Buchanan then continued until the 4th March,
1861—that is, until the revolt of the Gulf States was
complete_to be the Chief Magistrate of the Union;
and it has been commonly affirmed in America that to
his supineness and the disloyalty of his Ministers the
calamities of the four ensuing years were largely due.
There was disaffection - perhaps there was treachery
in the President's Cabinet, and he was
was himself
irresolute and supine. But in justice to Mr. Buchanan
it must be remembered that he had been borne into
office as a Democrat and by the Democratic party, that a
majority of Americans were, or had been, Democrats, and
that to men imbued with these principles the idea of
coercing a refractory State—though, as Jackson had
shown, not intolerable--was still distasteful in the
highest degree. It must be remembered also that the
seven middle States were trembling on the verge of
revolt, pulled hither and thither by contending in-
fluences, protesting vehemently against coercion, and
calling out for concessions which they were themselves
unable to specify or define. Representatives of these
States sat in Congress until after the 1st of March.
The Gulf States themselves were represented there
until they had formally resolved on secession. More-
over, it cannot be stated too plainly that as to the
course which ought to be pursued towards the South,
opinion was, and long continued to be, wavering and
undecided. The sentiment which predominated through-
out the North was a sincere desire to tranquillize and
win back the South, if possible, by any reasonable
measures of conciliation. And behind this was a feel-
58
CONDUCT OF PRESIDENT BUCHANAN.
Chap. III. ing, not dominant indeed but strong, which found
expression in Congress, at public meetings, and in the
press, was shared by many Republicans and openly
avowed by men of great eminence and unimpeached
patriotism, that should conciliation prove hopeless, a
peaceable separation ought to be preferred to civil war.
It was natural that this should be so.
When men are
really plunged in such a struggle, when their passions
are roused and their nerves braced, and they have come
to apprehend thoroughly the value of the interests at
stake, the thought of yielding becomes a crime, and to
have nourished it passes for a reproach. But they feel
otherwise whilst the calamity is still in prospect, and is
not known to be inevitable.
The President's own view of the character of the
revolt and of his own duties was expressed in his annual
Message of the 4th December, 1860, and fortified by a
written opinion from Mr. Black, an eminent Pennsyl-
vanian lawyer, then Attorney-General and afterwards
Secretary of State. It is unquestionably true, said
Mr. Buchanan, that no State has or can have a right to
secede from the Union, which was clearly intended to be
perpetual. But the Constitution does not arm the Pre-
sident with power to enforce the laws, except through
the machinery of the Federal Courts and in aid of process
issued by them; there are now no Federal Courts in South
Carolina, and it would be impracticable to re-establish
them there. Again, it is only by waging war on South
Carolina that Congress could “coerce her into submis-
But the Constitution gives no such power to
Congress. Having satisfied himself that there was no
escape from this curious puzzle, Mr. Buchanan resigned
himself to inaction. He sat still. He refused, on the
one hand, to receive or recognize the two Commissioners
whom South Carolina had sent to negotiate for the
transfer of public property within the State and an ap-
portionment of the public debt; he refrained, on the
sion.”
ATTITUDE OF FEDERAL CONGRESS.
59
other, from any attempt to re-establish his authority in Chap. III.
the South, to collect the revenue or enforce the laws.
Nor, feeble and unsatisfactory as the Message was
deemed by the Republican party, does this inertness
appear to have provoked in either House of Congress
remonstrance or complaint. No extraordinary appro-
priations were made for the army or navy. The Session
which began on the 3rd December, 1860, and closed on the
4th March, 1861, was chiefly spent in long and desultory
debates on various projects of conciliation. During the
latter part of this period a voluntary Convention of 135.
persons, assembled at Washington on the request of the
Virginian Legislature, and representing all the States not
actually in revolt, were engaged, under the presidency
of Mr. Tyler, in the same fruitless labour. These dis-
cussions produced no substantial result. Proposal after
proposal was eloquently debated, only to be set aside in
its turn when the moment came for action. It was in
the evening of Sunday the 3rd March, "at an unusual
hour at the close of a peaceful day,” that the Senate met
for the last time to decide on the recommendations pre-
sented by the Peace Conference, on another elaborate
and important series known as Mr. Crittenden's, and on
a further proposition emanating from the minority of a
committee of its own body. The debate, which lasted
far into the night, ended in the rejection of them
all. The House of Representatives, on the 27th
February, after the members for the seceding States had
withdrawn, agreed, by a majority of 136 against 53, to
the following string of Resolutions, which have import-
ance only as showing how the Republican party, at that
time rising into the ascendant, were prepared to deal
with the slavery question immediately before the com-
mencement of the war :-
“ Resolved, That all attempts on the part of the Legislatures of any
of the States to obstruct or hinder the recovery and surrender of fugitives
from service or labour are in derogation of the Constitution of the
60
ATTITUDE OF FEDERAL CONGRESS.
66
Chap. III. United States, inconsistent with the comity and good neighbourhood that
should prevail among the several States, and dangerous to the peace of
the Union.
Resolved, That the several States be respectfully requested to cause
their statutes to be revised, with a view to ascertain if any of them are
in conflict with or tend to embarrass or hinder the execution of the laws
of the United States, made in pursuance of the second section of the
fourth article of the Constitution of the United States, for the delivering
up
of persons held to labour by the laws of any State and escaping there-
from; and the Senate and House of Representatives earnestly request
that all enactments having such tendency be forthwith repealed, as re-
quired by a just sense of constitutional obligations, and by a due regard
for the peace of the Republic; and the President of the United States is
requested to communicate these resolutions to the Gorernors of the
several States, with a request that they will lay the same before the
Legislatures thereof respectively.
Resolved, That we recognize slavery as now existing in fifteen of
the United States by the usages and laws of those States; and we recog.
nize no authority, legally or otherwise, outside of a State where it so
exists, to interfere with slaves or slavery in such States, in disregard of
the rights of their owners or the peace of society.
Resolved, That we recognize the justice and propriety of a faithful
execution of the Constitution, and laws made in pursuance thereof, on
the subject of fugitive slares, or fugitives from service or labour, and dis-
countenance all mobs or hindrances to the execution of such laws, and
that citizens of each State shall be entitled to all the privileges and im-
munities of citizens in the several States.
“ Resolved, That we recognize no such conflicting elements in its
composition, or sufficient cause from any source, for a dissolution of this
Government; that we were not sent here to destroy, but to sustain and
harmonize the institutions of the country, and to see that equal justice is
done to all parts of the same; and finally, to perpetuate its existence on
terms of equality and justice to all the States.
“ Resolved, That a faithful observance, on the part of all the States,
of all their constitutional obligations to each other and to the Federal
Gorernment, is essential to the peace of the country.
Resolved, That it is the duty of the Federal Government to enforce
the Federal laws, protect the Federal property, and preserve the Union
of these States.
" Resolved, That each State be requested to revise its statutes, and, if
necessáry, so to amend the saine as to secure, without legislation by Con-
gress, to citizens of other States travelling therein, the same protection
as citizens of such State enjoy; and also to protect the citizens of other
States travelling or sojourning therein against popular violence or illegal
summary punishment, without trial in due form of law, for imputed
crimes.
“ Resolved, That each State be also respectfully requested to enact
!
1
COMPROMISE PROVES HOPELESS.
61
such laws as will prevent and punish any attempt whatever in such Chap. III.
State to recognize or set on foot the lawless invasion of any other State
or territory.
Resolved, That the President be requested to transmit copies of the
foregoing resolutions to the Governors of the several States, with a
request that they be communicated to their respective Legislatures.”
One proposition, and only one, obtained the con-
current assent of both Houses. It was as follows:
" That the following Article be proposed to the Legislatures of the
several States as an Amendment to the Constitution of the United States,
which, when ratified by three-fourths of said Legislatures, shall be valid,
to all intents and purposes, as part of the said Constitution, namely :-
66No Amendment shall be made to the Constitution which will
authorize or give to Congress the power to abolish or interfere, within
any State, with the domestic institutions thereof, including that of persons
held to labour or service by the laws of said State.'
This vote was made abortive by the circumstances
which immediately followed.
All endeavours then to repair, by one more compro-
mise, a breach which had been gradually widening in
spite of repeated compromises proved utterly vain. They
were, indeed, well nigh hopeless from the first. Originated
chiefly by politicians from the Middle States, among
which Kentucky took the lead, they offered no prospect
of a solid and durable reconciliation. Few Republicans
could have accepted them with a clear conscience, and
they were really distasteful to the thorough-going seces-
sionists, who took no part in the Peace Conference, and
during the debates in Congress on Mr. Crittenden's
scheme had either stood aloof or given it a cold and
languid support. The object of their desires was not a
redress of grievances; they had, indeed, none which
legislation could redress. No action of Congress, no
mere patching of the Constitution, could, they well
knew, arrest the growth of population in the North and
West, stifle in that population the freedom of thought
and speech, or secure to the South a permanent lease of
power. What they dreaded was this steady, irresistible
62
ACTS OF CONFEDERATE CONGRESS.
Chap. III. advance of an interest and sentiment hostile to their
own; what they aspired to was the foundation of an
independent commonwealth which should absorb the
Middle States, drain the resources of the North, and
command the West. No fresh. compromise could now
dissipate that fear, or divert them from the pursuit of
that chimera.
NOTE.
Among the Acts passed by the Provisional Congress of the Confederate
States during its first Session are the following :-
1861.
February 9.--To continue in force certain laws of the United States
of America.
14.-To continue in office the officers connected with the
collection of the Customs in the Confederate States
of America.
20.–To provide munitions of war and for other purposes.
[Authorizes President or Secretary of War under
his direction to make contracts for the purchase of
heavy ordnance and small-arms, and manufacture
of powder.]
21.–To fix salaries of Vice-President and Heads of Depart-
ments.
21.- To organize the Departments of State, and the Treasury,
War, Navy, and Post-Office Departments, and a
Department of Justice (six Acts).
23.—To prescribe the Rates of Postage in the Confederate
States of America.
25.-To declare the free navigation of the Mississippi.
26.–To modify the Navigation Laws and repeal all discrimi-
nating duties on ships or vessels.
26.–For the establishment and organization of a General
Staff for the Army of the Confederate States of
America.
28.—To authorize the Secretary of the Treasury to establish
ports and places of entry and delivery.
28.--To raise money for the support of the Government, and
to provide for the defence of the Confederate States
92
>
79
ACTS OF CONFEDERATE CONGRESS.
63
1
>>
of America. [Authorizes a loan of 15,000,000 Chap. III.
dollars, and an export duty of gth of a cent per
pound on raw cotton.]
NOTE.
February 28.—To raise Provisional Forces for the Confederate States
of America, and for other purposes.
March 6.—To provide for the Public Defence. [Authorizes Presi.
dent to employ militia, military and naval forces,
of the Confederate States, and to ask for and accept
services of volunteers not exceeding 100,000.]
6.-To provide for the registration of vessels owned by
citizens of the Confederate States.
6.-To establish a Light-house Bureau.
6.–For the establishment and organization of the Army of
the Confederate States.
7 & 8.—To create the clerical force of the Executive Depart.
ments (including the Navy Department).
9.-To authorize the issue of Treasury Notes.
11.--Making appropriations for the support of 3,000 men
for twelve months, to be called into service at
Charleston, and for the support of the Regular
Army of the Confederate States. (Two Acts.)
11.-To establish a Court of Admiralty and Maritime Juris-
diction at Key West, Florida (Amended 16th March).
15.—Making appropriations for the Legislative, Executive,
and Judicial expenses of Government.
15.-To authorize the appointment of Commercial Agents
or Consuls to foreign ports.
15.-To authorize the construction or purchase of ten steam
gunboats (five to be of a tonnage not exceeding
750 tons, and fire not exceeding 1,000 tops).
15.—Making appropriations for the support of the Navy.
[The appropriations are as follows:-
“ 1st. For the pay of officers of the navy on duty and off duty,
based upon the presumption that all the grades authorized by the Act of
1861 will be filled, 131,750 dollars.
“ 2nd. For the pay of officers, non-commissioned officers, musicians,
and privates of the marine corps, 175,512 dollars.
“ 3rd. For provisions and clothing and contingencies in paymaster's
department, 133,860 dollars.
“ 4th. For the pay of warrant and petty officers, and of seamen,
ordinary seamen, landsmen, and boys, and engineer's department, 168,000
dollars.
“ 5th. For expenditures which will be required for coal for the use of
steamers, 235,000 dollars.
“ 6th. For the probable cost of 10 steam-gunboats for coast defences
of the Confederate States, to be built or purchased as may be most con-
venient, 1,100,000 dollars.
64
ACTS OF CONFEDERATE CONGRESS.
Chap. III.
NOTE.
" 7th. For the probable cost of completing and equipping the steam
sloop Fulton, now at the Pensacola navy yard, 25,000 dollars.
6 8th. For the pay of officers and others at the navy yard, Pensacola,
54,363 dollars.
“ 9th. For compensation of four clerks on duty at the Navy Depart-
- ment as per Act of 11th March, at 1,500 dollars each, 6,000 dollars."]
Mareh 16.—To provide for the organization of the Navy. [Authorizes
President to appoint 4 Captains, 4 Commanders,
30 Lieutenants, &c., and to employ as masters,
midshipmen, naval constructors, warrant and
petty officers, and seamen, any number not ex-
ceeding 3,000.]
16.- To establish the Judicial Courts of the Confederate
States of America. [This Act, of 54 sections, pro-
vides a complete judicial machinery, modelled on
that of the United States. The District Courts to
have admiralty and maritime jurisdiction.]
99
CHAPTER IV.
Accession of President Lincoln.—His Character, and the Commence-
ment, of his Administration.-Attempt to provision Fort Sumter;
followed by the Bombardment and Reduction of the Fort.--Procla-
mation calling for 75,000 Men.-Revolt of Virginia, North Carolina,
Arkansas, and Tennessee.-Attitude of Kentucky, Maryland, and
Delaware.-Events in Missouri.—The Arsenal at Harper's Ferry
and the Norfolk Navy Yard fall into the hands of.the Confederates.
Troops raised for the Defence of the Confederacy.—Mr. Davis's
Proclamation offering Letters of Marque.—President Lincoln's
Proclamations of Blockade.--Naval Resources of the United States ;
of the Confederacy.–Successive Levies of Troops by the Federal
Government.--Military Operations.-Campaign on the Potomac.-
Observations on the Character and Magnitude of the Revolt.
On the 4th March, 1861, Mr. Lincoln took office as
President of the United States. A native of Kentucky,
born of poor parents, and bred up in a log cabin in
what was then the Far West, he had struggled in early
years for a livelihood, trying, as was common in that
rough and primitive society, one occupation after
another, until he finally attained the position of a
country lawyer in good practice. He had been elected,
when twenty-five years old, to the Legislature of his
own State, Illinois ; had sat for three years in Con-
gress and been a candidate against Mr. Douglas for
the Senatorship; and was known as a terse and ready
speaker. The obscurity of his birth and early life,
his homely air and rough humour, created, on his
sudden elevation to the highest dignity in the United
States, a prejudice against him which was really in-
jurious to his office, and was never quite overcome.
F
66
PRESIDENT LINCOLN,
But no
Chap. IV. Nor does he appear to have been a man of quick or
commanding judgment. But his understanding was
robust, his character straightforward and steadfast, his
sense of public duty keen and high; and these qualities,
joined to a serene temper and a disposition singularly
gentle and kind, enabled him to serve his country better
than she might have been served by a far abler man.
In politics he had been an “old Whig" and fervent
admirer of Henry Clay, and was now a staunch but
sober Republican. “I have no purpose," he had said,
“ directly or indirectly, to interfere with the institution
of slavery in the States where it exists. I believe I
have no lawful right to do so, and I have no inclina-
tion to do so.” And he repeated these words in his
Inaugural Address. no man had more firmly
opposed the extension of slavery into the Territories,
or more unreservedly expressed the conviction that
sooner or later it must perish in the States themselves.
His Cabinet, formed immediately after his accession to
office, was, of course, Republican; four of its members,
indeed, had been proposed at the Chicago Convention as
candidates for the Presidency; and the Secretaryship of
State was assigned to Mr. Seward, a man of shining
ability, who had headed the list of candidates until the
third ballot, when the choice of the party fell on
Mr. Lincoln.
Mr. Lincoln found the seven Confederated States in
open and flagrant revolt from the Union. They had
usurped its powers, removed its officers, seized its forts,
stores, and money, and were levying and appropriating
the duties which should have found their way into its
treasury; they had organized a Government of their
own, and insisted on their right to treat the United
States as a foreign Power. They were preparing to
raise an army and navy, and one of their forts had
opened fire on a steam-ship hoisting the American
ensign. To enforce the authority of the Union, or to
PRESIDENT LINCOLN'S POLICY.
67
surrender it altogether, withdraw the remaining garri- Chap. IV.
sons, and rest in the hope that time might dissolve the
Confederacy and bring the seceders back again, were the
two alternatives between which the choice really lay.
Yet for a little while, perhaps, it might still be possible
to temporize. Mr. Lincoln proposed to temporize ; but
his plan of action, which was stated somewhat obscurely
in his Inaugural Address, was one which could hardly
fail to lead straight to war
“I consider that, in view of the Constitution and the laws, the Union
is unbroken, and, to the extent of my ability, I shall take care, as the
Constitution itself expressly enjoins upon me, that the law of the Union
is faithfully executed in all the States. Doing this I deem to be only a
simple duty on my part; and I shall perform it, so far as practicable,
unless my rightful masters, the American people, shall withhold the
requisite means, or, in some authoritative manner, direct the contrary. I
trust this will not be regarded as a menace, but only as the declared
purpose of the Union that it will constitutionally defend and maintain
itself.
“ In doing this there need be no bloodshed or violence; and there
shall be none, unless it be forced upon the national authority. The
power confided to me will be used to hold, occupy, and possess the pro-
perty and places belonging to the Government, and to collect the duties
and imposts; but, beyond what may be necessary for these objects, there
will be no invasion, no using of force against or among the people any-
where. Where hostility to the United States, in any interior locality,
shall be so great and universal as to prevent competent resident citizens
from holding the Federal offices, there will be no attempt to force
obnoxious strangers among the people for that object. While the strict
legal right may exist in the Government to enforce the exercise of these
offices, the attempt to do so would be so irritating, and so nearly
impracticable withal, I deem it better to forego, for the time, the uses
of such offices.
“The mails, unless repelled, will continue to be furnished in all parts
of the Union.”
In pursuance of this plan, he resolved, instead of
withdrawing the garrison from Fort Sumter,-a place
ascertained to be indefensible,—to provision it, or at
least to make the attempt to do so.
It is uncertain at what time this decision was
formed. Early in March, the Confederate Government
F 2
68
FORT SUMTER.
Chap. IV. had sent Commissioners to Washington with instruc-
tions to endeavour to arrange terms for a peaceable
separation. They had applied, on the 12th March, for
· leave to present their credentials, and it was not until
three weeks later that they received a formal answer,
which was, as might be expected, a civil but peremp-
tory refusal. This delay has never been fully explained :
by some it has been ascribed to the officious interference
of one of the Judges of the Supreme Court, who was a
friend of the South—by others to vacillation-by others,
again, to a deliberate design to gain time for preparation,
whilst amusing the Confederates with a vain hope of
being permitted to negotiate. Be this as it may, nothing
appears to have been done before the 1st April. On
that and the following day orders were sent to Brooklyn
and Governor's Island to fit out several vessels with the
utmost despatch; and between the 6th and the 10th,
the ships following one another as they were got ready,
an expedition put to sea and sailed southwards. It
consisted of a large merchant-ship chartered by the
Government and laden with provisions for Fort Sumter,
and a small armed steam-cutter, the Harriet Lane,
with two transports, full of men and military stores,
attended by the steam-frigate Powhatan. These last
appear
to have been destined for Fort Pickens, in
Alabama, the reinforcement of which was afterwards
accomplished without difficulty. The gun-boats Poca-
hontas and Pawnee were at the same time dispatched
from Norfolk.
Fort Sumter, three miles and a half from Charleston,
and commanding the entrance to the harbour, had been a
constant object of jealousy and uneasiness to the Con-
federates, and of perplexity to the Federal Government;
and many informal communications bearing reference to it
had passed to and fro, both before and after the accession
of Mr. Lincoln. President Buchanan had steadily re-
fused to abandon the fort, and asserted his resolution to
FORT SUMTER,
69
Chap. IV,
defend it against attack, both as a military post and as
“public property” of the United States; and this had
led to dissensions in his Cabinet, and furnished a pretext
at least for the resignation of some of its disaffected
members. The Confederates, on the other hand, had
declared themselves resolved to regard any attempt to
reinforce the garrison as a menace to their independence
and an act of war. Early in January an unarmed
steam-ship, the Star of the West, had been actually sent
thither from New York with troops and stores, but was
driven back by the batteries on Morris Island and Fort
Moultrie, after having been ten minutes under fire; and
the attempt was not renewed. The fort itself, a struc-
ture of solid masonry, some sixty feet high, rising sheer
out of the water and capable of mounting 140 guns,
was well adapted for its intended purpose,--defence
against attacks from the sea. But it was now exposed
to the fire of the powerful batteries, which, under the
superintendence of Brigadier-General Beauregard, an
engineer officer of Southern extraction formerly in the
United States' service, had been completed with much
labour and skill on both shores of the inlet; and it was
further threatened on the side of the town by a floating
battery, heavily armed. The garrison was small, their
stock of ammunition low, and their provisions almost
exhausted; and the number of guns available did not
exceed forty-eight, many of which, being en barbette,
were practically useless under a well-aimed vertical fire.
On the 8th April, before the whole of the relieving
expedition had left New York, notice that provisions
were about to be sent to the garrison, "peaceably, or
otherwise by force,” was delivered by an officer of the
United States' army to the civil and military authorities
at Charleston, by whom it was transmitted to the Con-
federate Secretary at War. The fort was summoned on
the 11th, and by the afternoon of the 13th it was
reduced, after a heavy but bloodless bombardment of
70
CALL FOR MILITIA.
t
Chap. IV. many hours. Major Anderson capitulated on honour-
able terms, and was conveyed with his handful of sola
diers to New York in the same vessel which had brought
their intended supplies. The ships composing the expe-
dition had appeared off the bar before the attack began,
a gale blowing at the time; but they remained spectators
of the combat, and did not venture, as indeed they could
not usefully have done, within the range of the Confede-
rate batteries.
With these events vanished instantly all hopes of a
peaceable separation or a peaceable reunion, and no
future historian will hesitate to date from them the com-
mencement of the civil war. The sword was drawn, and
all over the country it was thoroughly understood that
the question whether the revolted States were to be
regained by the Republic or lost to her for ever must
now be decided by force.
On the day following that on which Fort Sumter
had been evacuated, the following Proclamation, under
the President's signature, was issued by the Government
at Washington :
“PROCLAMATION.
“ Whereas the laws of the United States have been for some time
past and now are opposed, and the execution thereof obstructed, in the
States of South Carolina, Georgia, Alabama, Florida, Mississippi,
Louisiana, and Texas, by combinations too powerful to be suppressed by
the ordinary course of judicial proceedings, or by the powers vested in
the marshals by law
“Now, therefore, I, Abraham Lincoln, President of the United
States, in virtue of the power in me vested by the Constitution and the
laws, have thought fit to call forth, and hereby do call forth, the militia
of the several States of the Union, to the aggregate number of 75,000,
in order to suppress said combinations, and to cause the laws to be duly
executed.
The details for this object will be immediately communicated to the
State authorities through the War Department.
• I appeal to all loyal citizens to favour, facilitate, and aid this effort
to maintain the honour, the integrity, and the existence of our National
Union, and the perpetuity of popular Government, and to redress wrongs
already long enough endured.
CALL FOR MILITIA.
71
“I deem it proper to say that the first service assigned to the forces Chap. IV.
called forth will probably be to re-possess the forts, places, and property
which have been seized from the Union; and in every event the utmost
care will be observed, consistently with the objects aforesaid, to avoid
any devastation, any destruction of or interference with property, or any
disturbance of peaceful citizens in any part of the country.
“ And I hereby command the persons composing the combinations
aforesaid to disperse and retire peaceably to their respective abodes
within twenty days from this date.
“ Deeming that the present condition of public affairs presents an
extraordinary occasion, I do hereby, in virtue of the power in me vested
by the Constitution, convene both Houses of Congress.
“ Senators and Representatives are therefore summoned to assemble at
their respective Chambers, at 12 o'clock, noon, on Thursday, the 4th day
of July next, then and there to consider and determine such measures as,
in their wisdom, the public safety and interest may seem to demand.
“In witness whereof, I have hereunto set my hand and caused the
seal of the United States to be affixed.
“Done at the City of Washington, this 15th day of April, in the year
of our Lord 1861, and of the Independence of the United States the 85th.
(Signed) “ABRAHAM LINCOLN."
An accompanying circular, signed by the Secretary
of War, informed the Governors of the several States
that the men would be required to serve for three
months unless sooner discharged.
Throughout the Free States of the Union this call was
answered with the greatest alacrity. Three Massachu-
setts regiments were on their road in little more than
forty-eight hours after it reached Boston; a regiment
from Indiana, and one from New York, marched on the
18th, and troops were soon pouring into Washington from
every part of the North and West. On the Middle or
Border Slave States the summons to action produced a
very different effect, and the revolt, which speedily fol-
lowed, of four of these States to the Southern Confede-
racy, forms another important era in the history of the
war.
Virginia, North Carolina, Tennessee, Arkansas, Mis-
souri, Kentucky, and Maryland had hitherto refrained
from casting in their lot with the South. Their sym-
72
REVOLT OF MIDDLE STATES.
Chap. IV. pathies, as Slave States, were more or less strongly
Southern; but they were extremely unwilling to desert
the Union. In all, except South Carolina, there was a
division of interests ; party spirit in most of them ran
high, and in some—especially Arkansas, Missouri, and
Tennessee—there was an element of violence and law-
lessness which had a tendency to make dissensions fierce
and dangerous. In the contests for the Presidency, these
States, as we have seen, had given the bulk of their
votes to the neutral candidate, and during January and
February they had made anxious efforts to promote a
compromise. In all, except Kentucky and Maryland, Con-
ventions had been summoned, but in none of them had
the secessionists been able to secure the passing of an
Ordinance. In North Carolina and Tennessee the hold-
ing of a Convention had been negatived by the popular
vote. Such, throughout this large zone of the Union,
was the situation of affairs, until the attempt to provision
Fort Sumter forced upon the people the hard necessity
of taking arms, either against the Union to which they
earnestly wished to adhere, or against that portion of their
countrymen with whom they had been long accustomed
to feel and act in common. Thus pressed, Virginia,
North Carolina, Arkansas, and Tennessee chose the
former alternative. Kentucky struggled hard for some
time to preserve a neutrality which had become impos-
sible, and finally threw in her lot with the Union. The
little State of Delaware, a mere slip of sea-coast with
scarcely 1,800 slaves, made the same choice, but without
hesitation. She had no militia, but answered the Pre-
sident's call by sending volunteers. Maryland, seces-
sionist at heart and at first turbulent and unmanageable,
was soon held firmly in the gripe of the Federal army.
Within her limits was the district of Columbia, the seat
of the Government of the United States; through them
also ran the high road to the region which was destined
to become the principal theatre of war; whilst her
REVOLT OF MIDDLE STATES.
73
narrow straggling territory, overhung along its whole Chap. IV.
northern boundary by free Pennsylvania, was estimated
to contain not less than 50,000,000 dollars' worth of
slaves. The distant State of Missouri had, like Mary-
land, a military importance derived from its situation;
for the possession of it might be said to command, more
or less, Kansas and the great territories of the South-
West. She never actually seceded, but her Governor
and Legislature were secessionist, and the State soon
became, and long continued, the scene of desultory hos-
tilities, sustained at first by troops raised within the
State and fighting in its name, and later by detached
wings of the great Confederate army. These events
have been mentioned, for the sake of convenience, a
little out of their chronological order. Nor were the
acts by which the four seceding States purported to
sever themselves from the Union formally completed
until some time afterwards. But these acts had in all
1 Virginia,
April 17th. Ordinance of Secession passed by Convention (88 to 55).
May 23rd. Ordinance ratified by popular vote (128,884 to 32,134).
[A considerable portion of Virginia broke off and remained faithful to
the Union, and was subsequently erected, with some adjoining counties,
into a separate State, under the title of Western Virginia. It contained
nearly a fourth of the whole white population, and embraced the Valley
of the Kanawha and the greater part of the tract west of the Alleghanies
sloping down to the Ohio, together with the long narrow strip which runs
up between the States of Ohio and Pennsylvania, nearly to the latitude
of New York, and to which its shape and position have given the
nickname of the “ Pan-handle.'']
North Carolina-
April 26th. Legislature summoned.
May 1st. Legislature met, and called Convention.
May 21st. Secession Ordinance passed unanimously.
Tennessee
May 7th. Ordinance of Secession passed by the Legislature.
June 8th. Ordinance ratified by popular vote (104,913 to 47,238).
[East Tennessee was strongly Unionist.
Arkansas-
May 6th. Ordinance passed by Convention (69 to 1).
74
HARPER'S FERRY.
Chap. IV. of them been forestalled, not only by popular move-
ments, but by their Governments and Legislatures. On
the 25th April the Virginian Convention, in the name of
the Commonwealth, had entered into a formal Treaty
with the Confederate States, under which, until the
Union should be perfected, “the whole military force
and military operations, offensive and defensive, of the
said Commonwealth in the impending conflict with the
United States,” were placed under the direction and
control of the President of the Confederacy "on the
same principles, basis, and footing as if the said Com-
monwealth were now and during the interval a member
of the Confederacy.” The Governor of Tennessee was
empowered by his Legislature, on the 1st May, to con-
clude a like Treaty; and the Treaty itself was ratified
by the Senate on the 7th. Still earlier the forts on the
coast of North Carolina had been seized and armed, and
these, with the arsenals of Fayetteville in that State and
of Little Rock in Arkansas, were handed over to the
Confederate Government.
The United States had within the State of Virginia
two valuable possessions, which its revoit threatened
with sudden peril, the navy-yard and magazines of
Norfolk, and the great arsenal and armoury of Harper's
Ferry, situated at the confluence of the Shenandoah and
Potomac Rivers, whose united waters here break through
the most easterly of the long Alleghany ranges and
descend towards the sea. On the night of the 18th
April the subaltern in charge of the arsenal was apprised
that it was about to be attacked by a strong Virginian
force, and hastily withdrew the handful of troops under
his command, having first set fire to the buildings,
destroyed about 15,000 stand of arms, and attempted,
but in vain, to blow up the workshops and machinery.
Commodore Macauley, who commanded at Norfolk, had
recourse to the same desperate expedient. But here the
destruction was greater. The noble harbour of Norfolk,
NORFOLK NAVY YARD.
75
.
opening into Hampton Roads, where the James River, Chap. IV.
on which Richmond stands, discharges itself into the sea,
was a naval station of the first importance. Its great
navy-yard, on the opposite side of Elizabeth River, gave
employment to the populous town of Portsmouth with
its suburb, Gosport; and the harbour and yard con-
tained at that time, beside 2,000 pieces or more of
heavy ordnance and large quantities of small-arms,
ammunition, and naval stores, eight or ten ships of war,
of different classes. Of these, however, some were dis-
mantled; one had been thirty-eight years on the stocks,
and others were under repair. A subsequent report of
the Secretary of the Navy confines the list of those which
were or could have been made serviceable to one steam-
frigate, three sloops (including the Cumberland, which
escaped), and a 4-gun brig. Norfolk was occupied on
the 20th by a Virginian Brigadier, with a small force
hastily collected in the neighbourhood; and, on the
same night, the United States' Commandant, who
had about 800 men at his disposal, made his escape
front Portsmouth, after burning and scuttling the ships,
firing the huge ship-houses, and destroying everything
else that he could destroy. One sloop' of war, the
Cumberland, was safely towed out by the Pawnee,
which had arrived just in time. The Merrimac, a
fine 40-gun steam-frigate, though injured, was rescued
by the Confederates, and afterwards did good service
as the iron-clad Virginia ; the cannon and powder
also came into their possession, with much valuable
machinery and large quantities of shot and shell.
Portsmouth was immediately afterwards occupied, as
Harper's Ferry had been, by Confederate troops. But
Fortress Monroe, a place of great strength and com-
manding position, remained in the hands of the Federal
Government. Seated on the extreme point of the land
which divides the James River from Chesapeake Bay,
directly opposite to the great outlet between the Capes
76
CONFEDERATE LEVIES.
Chap. IV. of Virginia into the open sea, this fortress, in the hands
of a strong maritime power, controlled the access not
only to Richmond, by the James, but to all the interior
waters of the bay, and secured to its possessors a foothold,
which could not be shaken off, upon all the lower or
“ tide-water” part of the revolted State.
In the meanwhile, the Confederate Government,
which still remained at Montgomery but subsequently
removed to Richmond, was preparing, as it best could,
to meet the coming storm. On the 6th March the
Congress had passed a short Act, by which, "in order
to provide, speedily, forces to repel invasion, maintain
the rightful possession of the Confederate States of
America in every portion of territory belonging to each
State, and secure the public tranquillity and inde-
pendence against threatened assault," the President was
authorized to employ the militia, military and naval
forces of the Confederacy, and to " ask for and accept
the services of any number of volunteers, not exceeding
100,000," to serve for twelve months, unless sooner dis-
charged. This power was exercised immediately after
the outbreak of the war;and in the first flush of excite-
ment the efforts of the Administration were seconded,
and indeed outrun, by the enthusiasm of the people.
“ The military spirit raised by President Lincoln's pro-
clamation reached an indescribable state of excitement
during the months of April and May. It was estimated
that 100,000 men were then organized, armed, and
1 Mr. Davis's Message, delivered on the 29th April, contained the
following passage:
“ There are now in the field at Charleston, Pensacola, Forts Morgan,
Jackson, St. Philip, and Pulaski, 19,000 men, and 16,000 are now en
route for Virginia. It is proposed to organize and hold in readiness for
instant action, in view of the present exigencies of the country, an army.
of 100,000 men. If further force be needed, the wisdom and patriotism
of the Congress will be confidently appealed to for authority to call into
the field additional numbers of our noble spirited volunteers, who are
constantly tendering their services far in excess of our wants.''
CONFEDERATE LEVIES.
77
-
awaiting orders from the Confederate Government, in Clap. IV.
the seven States which first seceded. In Virginia
60,000 were under arms. This number included the
troops from the other States, together with the militia
of Virginia. This latter class were ready and disposed,
in all parts of the State, except the western, to turn out
almost en masse. This enthusiasm, the prosperous con-
dition of the people generally, and the cause of self-
defence and self-preservation in which they conceived
they were about to fight, rapidly furnished the Govern-
ment with the men and munitions required.”'l The
Virginian troops in the field on the 30th June were
reported as 41,885 men, and at the close of the year
they were estimated at 70,000.
“ For this struggle, so suddenly commenced, Virginia had for some
time been making such preparations as her means enabled her, and
although she was not so well provided as the Secessionists desired, still
she was better prepared than most of her Southern sisters—better, per-
haps, than any one of them. For some time anterior to the secession
she had been engaged in the purchase of arms of different kinds, ammu.
nition, and other necessary articles, and in mounting artillery, in antici-
pation of the event which subsequently occurred. A large portion of
the ammunition which was used during the year was captured at Norfolk,
and the heavy guns supplied to the Southern States for coast, rirer, and
land defence, were captured at the same time with the nary yard. All
the field artillery issued belonged exclusively to the State of Virginia,
and much the larger part of it had been in her possession for half a
century. The small arms were all her own exclusive property, save
7,500 altered percussion muskets, furnished by Governor Ellis, of North
Carolina."-American Annual Cyclopædia for 1861, p. 740.
Of these levies the larger number were hurried
forward, as fast as they could be brought into the field,
to the northern frontier of Virginia, and massed so as
to resist the approach of an enemy who should attempt
to penetrate the State from Maryland. Two armies
were thus gradually formed: one, disposed behind the
Potomac, occupied the plain and the woody undulating
1 American Annual Cyclopædia for 1861, pp. 146, 147.
78
LETTERS OF MARQUE OFFERED.
Chap. IV. ground which slopes westward to the hills, and which
was afterwards the scene of the battle of Manassas Gap
or Bull Run; the other, west of the Blue Ridge and,
therefore, within the Alleghany ranges, held the line of
the Shenandoah, and manoeuvred, when it was judged
expedient, on that of the Upper Potomac, above Harper's
Ferry.
On the 17th April, two days after President Lincoln's
call for troops, Mr. Davis issued a Proclamation inviting
applications for letters of marque and reprisal :-
“ PROCLAMATION.
.
.
“ Whereas Abraham Lincoln, President of the United States, has by
proclamation announced the intention of invading the Confederacy with
an armed force for the purpose of capturing its fortresses, and thereby
subverting its independence and subjecting the free people thereof to the
dominion of a foreign power; and whereas it has thus become the duty
of this Government to repel the threatened invasion and defend the
rights and liberties of the people by all the means which the laws of
nations and usages of civilized warfare place at its disposal.
Now, therefore, I, Jefferson Davis, President of the Confederate
States of America, do issue this my proclamation, inviting all those who
may desire by service in private armed vessels on the high seas to aid
this Government in resisting so wanton and wicked an aggression, to
make application for commissions or letters of marque and reprisal, to be
issued under the seal of these Confederate States; and I do further
notify all persons applying for letters of marque to make a statement in
writing, giving the name and suitable description of the character,
tonnage, and force of the vessel, name of the place of residence of each
owner concerned therein, and the intended number of crew, and to sign
such statement, and deliver the same to the Secretary of State or
Collector of the Port of Entry of these Confederate States, to be by him
transmitted to the Secretary of State; and I do further notify all appli-
cants aforesaid, that before any commission or letter of marque is issued to
any vessel or the owner or the owners thereof and the commander for
the time being, they will be required to give bond to the Confederate
States, with at least two responsible sureties not interested in such vessel,
in the penal sum of 5,000 dollars, or, if such vessel be provided with
more than 150 men, then in the penal sum of 10,000 dollars, with the
condition that the owners, officers, and crew who shall be employed on
hoard such commissioned vessel shall observe the laws of these Con-
federate States and the instructions given them for the regulation of
their conduct, and shall satisfy all damages done contrary to the tenor
thereof by such vessel during her commission, and deliver up the same
CONFEDERATE CONGRESS DECLARES WAR.
79
when revoked by the President of the Confederate States; and I do Chap. IV,
further specially enjoin on all persons holding offices, civil and military,
under the authority of the Confederate States, that they be vigilant and
zealous in the discharge of the duties incident thereto ; and I do, more-
over, exhort the good people of these Confederate States, as they love
their country, as they prize the blessings of free Government, as they
feel the wrongs of the past and those now threatened in an aggravated
form by those whose enmity is more implacable because unprovoked,
that they exert themselves in preserving order, in promoting concord, in
maintaining the authority and efficary of the laws, and in supporting and
invigorating all the measures which may be adopted for a common
defence, and by which, under the blessing of Divine Providence, we
may hope for a speedy, just, and honourable peace.
“ In witness whereof, I have set my hand and hare caused
the seal of the Confederate States of America to be
attached this 17th day of April, in the year of our
Lord, 1861.
(Signed) “JEFFERSON DAVIS,"
At the time when this Proclamation was issued, the
Confederate Congress was not in Session. It met on
the 29th April, and on the 6th May passed an Act
recognizing the Existence of War between the United
States and the Confederate States, and concerning
Letters of Marque, Prizes, and Prize Goods." i This
was followed on the 14th May by “ An Act regulating
the sale of Prizes and the distribution thereof."
On the 19th April the following Proclamation was
issued by President Lincoln :-
66
• PROCLAMATION,
“ Whereas an insurrection against the Government of the United
States has broken out in the States of South Carolina, Georgia, Alabama,
Florida, Mississippi, Louisiana, and Texas, and the laws of the United
States for the collection of the revenue cannot be effectually executed
therein conformably to that provision of the Constitution which requires
duties to be uniform throughout the United States;
“And whereas a combination of persons, engaged in such insurrection,
have threatened to grant pretended letters of marque to authorize the
bearers thereof to commit assaults on the lives, vessels, and property of
good citizens of the country lawfully engaged in commerce on the high
seas, and in waters of the United States;
1 See Note II at the end of the Chapter.
80
PROCLAMATION OF BLOCKADE.
Chap. IV.
“ And whereas an Executive Proclamation has been already issued,
requiring the persons engaged in these disorderly proceedings to desist
therefrom, calling out a militia force for the purpose of repressing the
same, and convening Congress in extraordinary session to deliberate and
determine thereon :
“Now, therefore, I, Abraham Lincoln, President of the United States,
with a view to the same purposes before mentioned, and to the protection
of the public peace, and the lives and property of quiet and orderly
citizens pursuing their lawful occupations, until Congress shall have
assembled and deliberated on the said unlawful proceedings, or until the
same shall have ceased, have further deemed it advisable to set on foot a
blockade of the ports within the States aforesaid, in pursuance of the
laws of the United States and of the Law of Nations in such case provided.
For this purpose a competent force will be posted so as to prevent
entrance and exit of vessels from the ports aforesaid. If, therefore, with
a view to violate such blockade, a vessel shall approach, or shall attempt
to leave, any of the said ports, she will be duly warned by the commander
of one of the blockading vessels, who will endorse on her register the
fact and date of such warning, and if the same vessel shall again attempt
to enter or leave the blockaded port, she will be captured and sent to the
nearest convenient port, for such proceedings against her and her cargo
as prize as may be deemed advisable.
“ And I hereby proclaim and declare that if any person, under the
pretended authority of the said States, or under any other pretence, shall
molest a vessel of the United States, or the persons or cargo on board of
her, such person will be held amenable to the laws of the United States
for the prevention and punishment of piracy.
“ In witness whereof I have hereunto set my hand, and caused the
seal of the United States to be affixed.
“Done at the City of Washington, this 19th day of April, in the
year our Lord 1861, and of the Independence of the United States
the 85th.
(Signed) “ ABRAHAM LINCOLN.''
The blockade thus declared was extended by Pro-
clamation, on the 27th April, to the ports of North
Virginia.
The naval resources of the United States were at this
time very limited. At the date of Mr. Lincoln's acces-
sion, the whole naval force, excluding ships unfinished
or otherwise useless for war, consisted of 69 vessels of
all classes, only three of which were of the rank of
frigates. Of the 69, 42 only were in commission, and
of these again the great bulk were on foreign stations.
STATE OF FEDERAL NAVY.
81
The home squadron numbered 12 vessels, carrying Chap. IV.
187 guns. The available force was subsequently re-
duced by the loss of the ships destroyed at Norfolk,
and of a steamer seized by the Confederates at Pen-
sacola. This small marine was utterly out of pro-
portion to the demands about to be made on it, and
no exertion was spared to increase it as rapidly as
possible. The East India, Mediterranean, Brazil, and
African squadrons were brought home, ships unfinished
were pressed on to completion, a great number of
vessels, from first-class steamers to ferry-boats and tug-
boats, were bought or chartered, and such as could
be made serviceable for enforcing the blockade were
manned, armed, and sent with all speed to the South.
The naval force employed on this service was divided
into two squadrons, one for the Atlantic and the other
for the Gulf of Mexico.
Of the blockade itself I shall have occasion to speak
hereafter. Here it is enough to say—
1. That it was set on foot, as regards the ports of
Virginia, on the 30th April, and was extended to the
principal ports of the Atlantic and Gulf coasts before
the end of May.
2. That it was enforced from first to last as inter-
national blockades are enforced. The rules of interna-
tional, not of municipal, law were invoked and applied.
Neutral ships and cargoes were captured, not only at
the mouths of blockaded ports, but on the high seas-
an exercise of force which no municipal law can
possibly warrant, and which international law permits
only in time of war, and to belligerent Powers. And this
exercise of power was sustained by the Courts of the
1
1 The total number of vessels purchased for the naval service in 1861
was 137; the total number of steamers built and contracted for was 52,
of which three were iron-clads. At the close of 1863 the naval force of
the United States numbered 588 vessels, complete or in course of com-
pletion. Of these 75 were iron-clads.
G
82
NAVAL RESOURCES OF CONFEDERACY.
1
Chap. IV. United States against the complaints of neutral ship-
owners and merchants, on the express ground that it
was a belligerent right, and that the United States were .
a belligerent Power.
If at the beginning of the war the naval force at the
disposal of the Federal Government was insignificant,
compared with the work expected of it and the dimen-
sions it afterwards assumed, it must be added that the
revolted States had at the same time no naval force at
all. They had, as we have seen, a Naval Department,
and had made considerable appropriations for the sup-
port of a navy and the purchase of gun-boats, and they
had at their command many capable officers who were
eager for employment. But they had not a single ship
constructed for war, nor had they a large mercantile
marine to draw upon. The Southerners were not a sea-
faring race. Their carrying trade had been divided
between foreign shipowners and those of the North ;
and though their forests yielded ship-timber in abund-
ance, few ships were either built or owned in Southern
seaports. All that the Confederate Government could
do was to arm as many vessels as it could find, capable
of being employed in that predatory warfare which has
1 See Note I at the end of this Chapter.
2 Between the 11th November and the 4th March 56 officers of the
United States' Navy resigned their commissions. The number of those
who resigned or were dismissed between the 4th March and the 4th June
was 259.
..
..
..
..
..
..
:
•
•
3 The tonnage built in Southern ports in 1854 was as follows:
Tons.
Virginia
3,228
North Carolina
2,532
South Carolina
1,162
Georgia
667
Florida
562
Alabama
2,000
Louisiana
1,509
The total was less than was built in the small State of New Hampshire
alone.
..
..
..
.
:
.. .
:
EFFORTS OF CONFEDERACY.
83
hitherto been sanctioned by the law and practice of Chap. IV.
nations, and send them to sea as fast as means and
opportunity would allow. A long pivot-gun, or a
couple of 8-inch columbiads, with a fighting crew, was
armament enough for this purpose. Before the end of
May several of these troublesome insects were on the
wing, and not fewer than twenty prizes had been
brought into New Orleans. From thirty to forty armed
ships appear to have been fitted out in Confederate ports
during the year, of which six or seven had been United
States' revenue-cutters, and two or three had been
slavers. Some sailed with letters of marque, but many,
perhaps the greater number, were owned and commis-
sioned by the Confederate Government. The most
powerful was the paddle-wheel steamer Calhoun, of
1,058 tons, commanded by Captain Hollins, an officer of
some repute in the United States' navy. The smallest,
probably, was the tiny Savannah, of 54 tons, converted
from a Charleston pilot-boat into a privateer. She ran
out from Charleston early in June, and succeeded in
making one prize; but, closing her career immediately
afterwards by mistaking a Federal brig-of-war for a
merchantman, was the first Confederate craft that fell
into the hands of the enemy.
7
1 On the 1st May Mr. Seward wrote to Lord Lyons: “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
upon 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.”—Mr. Seward
to Lord Lyons, 1st May, 1861.
When the Confederate authorities proposed to issue. letters of
marque but little attention was paid to it, under the supposition that
they had neither the facilities to equip vessels, nor the power to break
the blockade. The appearance of the vessels on the ocean soon dispelled
such illusions, and the Powers of Europe were called upon immediately
to define their policy.”-- American Annual Cyclopædia for 1861, p. 589.
G 2
84
EFFORTS OF CONFEDERACY.
Chap. IV.
The Jeff. Davis, a brig which had formerly been
engaged in the slave trade, was more successful in
her audacity. She ran northwards early in June, stood
in towards shore as near as Nantucket Shoals, took
many valuable prizes (one within 200 miles of New
York), escaped capture, and in August ran aground and
was lost in trying to cross the bar off a little port in
Florida. The Sumter obtained greater celebrity, and
her performances afford us an example of what may
be done in this sort of warfare by a ship which has
neither strength nor speed, but is in the hands of an
officer of daring and resource. She was mentioned by
Mr. Davis in his Message of the 29th April, 1861, as being
then in preparation; her officers had been appointed to
her on the 18th of that month; on the 18th June she
was ready for sea, and on the 30th she steamed out of
one of the passes of the Mississippi and ran away from
the blockading war-steamer Brooklyn. She cruised for
some time in the West India seas, and afterwards crossed
the Atlantic, visiting successively Cienfuegos, Curaçoa,
Puerto Cabello in Venezuela, Trinidad, Paramaribo in
Dutch Guiana, Maranham in Brazil, Martinique, Cadiz,
and Gibraltar, where she was sold, and afterwards came
Liverpool as a merchantman. She cruised for six
months and captured seventeen prizes, and succeeded
in spreading an alarm which, before November, had
raised the rate of insurance on United States' ships.
Like the Calhoun and Nashville, she never was a privateer,
1 “ The operations of the Navy Department have been necessarily
restricted by the fact that sufficient time has not yet elapsed for the
purchase or construction of more than a limited number of vessels
adapted for the public service. Two vessels have been purchased and
manned, the Sumter and McRae, and are now being prepared for sea
at New Orleans with all possible despatch. Contracts have also been
made at that city with two different establishments for the casting of
ordnance,-cannon, shot, and shell,---with the view to encourage the
manufacture of these articles, so indispensable for our defence, at as
many points within our territory as possible."
FEDERAL LEVIES.
85
He gave
and, like them, was commanded by an officer who had Chap. IV.
held rank in the navy of the United States.
The events of the war in America do not enter into
the course of this narrative. I shall merely glance at
them. Mr. Lincoln was not long in discovering that in
his Proclamation of the 15th April he had taken a
very inadequate measure of the resistance with which
he had to deal. On the 4th May be issued a second
call, asking for forty additional regiments of volunteers,
making a maximum aggregate of 42,034 men, to serve
for three years, and for 18,000 seamen.
orders, at the same time, for an increase of the regular
army by ten regiments and a maximum aggregate of
22,714 soldiers. “ So patriotic and enthusiastic were
the people in favour of preserving the Union that under
this call 208 regiments had been accepted by July 1st.
A number of other regiments were also accepted on
condition of being mustered into service within a
specified time."'l Thus by the 1st July the Govern-
ment was computed to have at its command not less
than 307,875 troops, of whom, however, 77,875 had
enlisted for three months, and nearly completed their
term of service. From 70,000 to 80,000 men, collected
on the line of the Potomac, formed an army destined for
the defence of the capital and the invasion of Virginia.
But the raw levies which had flocked so fast to
Washington needed training in the rudiments of soldier-
ship; means of transport were required, and the other
appliances for an army in the field; and during many
weeks the Federal forces remained almost inactive
within easy distance of the enemy. Towards the end
of May, McDowell, under the orders of Scott, began to
feel his way into Virginia, and occupied the town of
Alexandria, eight miles from Washington, and on the
verge of the Federal district; but two months more were
1 American Annual Cyclopædia for 1861, p. 27.
86
MILITARY OPERATIONS.
was
Chap. IV. suffered to elapse before he hazarded an advance. On
the Upper Potomac, above Harper's Ferry, Patterson,
in command of 20,000 troops, was opposed to the
Confederate General Joseph Johnson, by whom he was
greatly overmatched in military skill; and Butler, who
had been sent by sea, with 15,000 men, to establish
himself at Fortress Monroe and menace the surround-
ing country, had received on the 10th June, in
attempting to penetrate inland, a sharp check from a
Confederate force under Magruder. At length, on the
16th July, McDowell began to move. Advancing
southwards, with an army which may be reckoned at
about 35,000 men, he found the enemy strongly posted
amidst broken ground, near a point where the southern
and western railways intersect, and a line strikes off,
through the hills, to the valley of the Shenandoah. .
Here he fought a pitched battle, sustained a severe
defeat, and driven back in
back in disorder upon
Washington.
After this disaster, the command of the army of the
Potomac was transferred to General. McClellan, who
had distinguished himself by a smart and successful
campaign in Western Virginia; but no second attempt
was made, until the spring of 1862, to advance beyond a
day's march from Washington. McClellan occupied
himself in drilling and organizing an army which rose
by the middle of October to 150,000, and by the end of
the year to nearly 220,000 strong.
The coasts of North and South Carolina were visited
by Federal squadrons, some forts destroyed, and a per-
manent lodgment effected at Port Royal; and in
Kentucky and Missouri a desultory war was waged,
extending over a wide surface, and bringing into the
field on both sides forces which in the aggregate were
considerable. This, in brief, is the military history of
the remainder of the year, which saw, as it wore on,
enormous and increasing bodies of combatants drawn
CHARACTER OF THE REVOLT.
87
1
from the pursuits of industry to slaughter one another. Chap. IV.
The Confederate troops in the field are reckoned to
have exceeded 200,000 in August, and 290,000 at a
later period. The total strength of the Federal armies
on the 1st December was estimated by the War Depart-
ment at upwards of 660,000 men.
The revolt of the Confederate States has some charac-
teristic features. We cannot fail to be struck by the
celerity with which the revolted communities established
a regular Government, the long interval which was
suffered to elapse before any attempt was made to
reconquer them, and the footing of equality on which
!
1 The following statement shows the demands made on the North and
West up to May 1864:
1861.
April 15.-Proclamation calling out Militia to the aggregate
number of 75,000.
May 3.---Call for 39 volunteer regiments of Infantry, and i
regiment of Cavalry, with a minimum aggregate
of 34,506 officers and men and a maximum of
42,034, and for the enlistment of 18,000 seamen.
The President also directs an increase of the regular
army by 8 regiments of Infantry, 1 of Cavalry,
and 1 of Artillery; minimum aggregate 18,054,
maximum 22,714.
July 22&25.-Congress authorizes enlistment of 500,000 Volunteers.
1862.
July 2.--Call for 300,000 Volunteers.
August 4.-President orders a draft of 300,000 militia.
1863.
March 3.-Conscription Act.
June 15.-Call for 100,000 men for 6 months to repel the
invasion of Maryland, West Virginia, Ohio, and
Pennsylvania.
October 17.-Call for 300,000 men to serve for 3 years, or the war.
1864.
February 1.-Draft for 500,000 men for 3 years, or the war.
March 14.-Draft for 200,000 additional men for the army, navy,
and marine corps, to supply navy and provide
reserve.
April 23.-25,000 one-hundred-day men tendered by Ohio, Indiana,
Illinois, Iowa, and Wisconsin, and accepted.
88
CHARACTER OF THE REVOLT.
1
Chap. IV. the combatants met at their first encounter in the
field. The explanation of these things is easy, and lies
upon the surface of this narrative. The eleven States
were completely organized as self-governed communities
before they attempted to sever their connection with the
Union; as a Confederacy, they had only to reproduce
and set in motion a machinery with the working of
which they were perfectly familiar, and of which both
the model and the materials were ready to their hands.
Yet, could the Federal Government have marched an
army on Charleston as soon as South Carolina issued
her Declaration of Independence, the revolt might have
been crushed in its infancy, and the Union might have
been saved four years of devastation and carnage. But
the Federal Government was paralyzed, not only by its
own weakness, but by peculiar restraints and extra-
ordinary difficulties. It had at its disposal no regular
army. The regular troops of the United States, in
April 1861, numbered barely 16,000, not much more
than enough to keep in check the roving Indian tribes
of the Far West, which is ordinarily their chief employ-
ment. Armies had to be raised on both sides, and they
could be raised on one side almost as fast as on the
other, though they could not be sustained as long.
Further, there is no doubt that the Federal Government
was really embarrassed, as I have already said, by that
peculiar reluctance to resort to force which an American
Government might be expected to entertain. This reluc-
tance--the consciousness that it was generally felt
around him—the fear lest an attempt to "invade
should drive (as in fact it did) the Border Slave States,
in whom the feeling was most keen and irritable, into
open revolt-the hope, which many sensible and expe-
rienced men were loth to abandon, that attachment to
the Union might yet revive, and the Confederacy, if left
to itself, crumble away—these influences speak in
Mr. Lincoln's inaugural address, though they can hardly
MAGNITUDE OF THE REVOLT.
89
be said to supply a reasonable account of his policy. Chap. IV.
Americans have been accustomed to think and speak of
their Government as resting altogether on the consent of
the governed. It is in truth, more than most others-
perhaps more than any, though all are so, more or
less—supported by an intelligent opinion, pervading the
bulk of the community, that it exists for the general
good. But, like
But, like every other Government without excep-
tion, it is supported also by force; it would, indeed,
be no Government, and its laws no laws, if it had not
power to compel obedience to its authority, or were not
ready, in case of necessity, to exert that power. The
necessity came, and was accepted; but it came in the
form of a revolt of a large part of the whole population
of the Union--a revolt which had attained its full
proportions before any attempt was made to subdue it.
It had then to be attacked, not as sovereigns suppress
insurrections, but as nations wage a great war. Govern-
ment was confronted with Government; armies were
arrayed against armies; the seat of rebellion could only
be reached by invading, with all the precautions which
invaders use, a hostile territory; resistance could only
be overcome, after a long and most obstinate struggle,
by a re-conquest so stern and thorough that for years
after the contest had ceased all the inhabitants of the
South had to be kept under military rule, in the prostrate
condition of a subject people.
1 Mr. Seward (April 10th), after speaking of the manifest instability
of the Confederacy, and the President's hope that the Southern people
would be wise enough to see it, wrote: “For these reasons he would not
be disposed to reject a cardinal doctrine of theirs, namely, that the
Federal Government could not reduce the seceding States to obedience
by conquest, even although he were disposed to question that proposition.
But, in fact, the President willingly accepts it as true. Only an imperial
or despotic Government could subjugate thoroughly disaffected or revo-
lutionary members of the State. This Federal Republican system of ours
is of all forms of government the very one which is most unfitted for
such a labour."--Mr. Seward to Mr. Adams, 10th April, 1861.
90
COMMENCEMENT OF CIVIL WAR.
1
Chap. IV
Note I.
NOTE I.
Opinions of American Courts and American Lawyers on the Question at
what date the War ought to be deemed to have begun.
It may be convenient to state here the view taken of the contest by the
legal tribunals of the United States. The questions (1), whether it was a
war;(2), at what time it become a war; (3), what were its effects (a) under
the municipal law of the United States on the status of citizens and
inhabitants of the revolted States, and (6) under international law on the
rights of foreign Powers and their subjects (questions some of which
had previously occupied the District Courts sitting as Courts of Prize),
were elaborately discussed and carefully decided by the Supreme Court,
in December Term, 1862. This judgment settled the law of the United
States on these important questions, and I shall therefore place it under
the reader's eye, omitting only such parts of it as dealt with the special
circumstances by which the Appellants' Counsel endeavoured to with-
draw particular cases from the operation of the general principle.
The "Hiawatha," 8c., Prize Cases.-- The question was, whether
certain vessels and cargoes, some the property of persons resident
in the Confederate States, others owned by foreigners, were properly
captured for breach of the blockade, instituted under the President's
Proclamations of April 1861. All the nine Judges were agreed that
the validity of the captures turned on the question whether the
President had, in April 1861, “power to set on foot a blockade
under the Law of Nations.” They were all agreed that he had no such
power, unless war existed at the time. On this last point they were
divided. Four (including Chief Justice Taney) held that the Federal
Courts could not recognize the existence of a public or civil war “carry-
ing with it belligerent rights" until it had been recognized by Congress.
They held that it was recognized for the first time by the Act of Congress,
13th July, 1861, and that captures, jure belli; made before that Act, must
be regarded by the tribunals of the United States as invalid.
positions contained in the judgment of the majority, which was the
judgment of the Court, may be stated as follows :-
1. At and before the date of the President's Proclamation of blockade
a war was in existencc, under which the Government of the United
States was entitled to exercise the jus belli, both against its enemy and
against neutrals.
2. The “belligerent powers” were the Confederated States on one
side, “ acting as States ” and as a Confederacy, and the United States,
claiming sovereignty over the Confederated States, on the other side.
3. The blockade was an act of war instituted jure belli, by virtue
of a right which had already accrued and which sprang from the
existence of a war. Proclamations did not originate the war, but
The pro-
DECISIONS OF FEDERAL COURT'S.
91
.
recognized it as existing, and must be held “ official and conclusive Chap. IV.
evidence" that it existed.
Note I.
4. “ A civil war”—which this was—“is never formally 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
as a war.
5. All persons residing in the Confederate States were clothed by the
war with the character of public enemies ; and their property became
liable to capture and confiscation as enemies' property. If actively dis-
loyal to the United States, they were at the same time liable to be
punished as traitors.
6. Foreign Powers were clothed by that war with the character of
neutrals. British ships and property became neutral ships and property;
and the blockade, being instituted jure belli, and not as a municipal
regulation or mere exercise of public authority within the limits of the
United States, might be enforced by the capture of neutral ships and
property on the high seas.
I subjoin the judgment itself, extracted from Black's Reports, ii,
665 (Prize Cases). The reasons of the dissentient minority, as stated
by Mr. Justice Nelson, will be fouud at p. 686 of the same volume.
MR. JUSTICE GRIER: “There are certain propositions of law which
must necessarily affect the ultimate decision of these cases, and many
others which it will be proper to discuss and decide before we notice the
special facts peculiar to each. They are-
“ 1. Had the President a right to institute a blockade of ports in
possession of persons in armed rebellion against the Government, on
the principles of international law, as known and acknowledged among
civilized States ?
“ 2. Was the property of persons domiciled or residing within
those States a proper subject of capture on the sea as enemies'
pro-
perty?'
“1. Neutrals have a right to challenge the existence of a blockade
de facto, and also the authority of the party exercising the right to
institute it. They have a right to enter the ports of a friendly nation
for the purposes of trade and commerce, but are bound to recognize the
rights of a belligerent engaged in actual war, to use this mode of
coercion, for the purpose of subduing the enemy.
" That a blockade de facto actually existed, and was formally declared
and notified by the President on the 27th and 30th of April, 1861, is an
admitted fact in these cases.
“ That the President, as the Executive Chief of the Government and
Commander-in-Chief of the Army and Navy, was the proper person to
make such notification, has not been, and cannot be, disputed.
1
92
COMMENCEMENT OF CIVIL WAR.
Chap. IV.
Note I.
“ The right of prize and capture has its origin in the jus belli, and
is governed and adjudged under the law of nations. To legitimate the
capture of a neutral vessel or property on the high seas, a war must
exist de facto, and the neutral must have a knowledge or notice of the
intention of one of the parties belligerent to use this mode of coercion
against a port, city, or territory, in possession of the other.
“Let us inquire whether, at the time this blockade was instituted, a
state of war existed which would justify a resort to these means of
subduing the hostile force.
• War has been well defined to be, That state in which a nation
prosecutes its right by force.'
“ The parties belligerent in a public war are independent nations.
But it is not necessary, to constitute war, that both parties should be
acknowledged as independent nations or sovereign States. A war may
exist where one of the belligerents claims sovereign rights as against the
other.
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 orga-
nization 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 terri-
tory; 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 as
They claim to be in arms to establish their liberty and indepen-
dence, 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 founda-
tion in reason, and all tend to mitigate the cruelties and misery 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
a war.
wars.
“A civil war,' says Vattel, breaks the bands of society and
Government, or at least suspends their force and effect; it produces in
the nation two independent parties, who consider each other as enemies,
and acknowledge no common judge. Those two parties, therefore, must
necessarily be considered as constituting, at least for a time, two separate
bodies, two distinct societies. Having no common superior to judge
between them, they stand in precisely the same predicament as two
nations who engage in a contest and have recourse to arms. This
being the case, it is very evident that the common laws of war—those
maxims of humanity, moderation, and honour—ought to be observed by
both parties in every civil war. Should the Sovereign conceive he
has a right to hang up his prisoners as rebels, the opposite party will
DECISIONS OF FEDERAL COURTS.
93
make reprisals, &c.; the war will become cruel, horrible, and every day Chap. IV.
more destructive to the nation.'
“ As a civil war is nerer publicly proclaimed, eo nomine, against
Note I.
insurgents, its actual existence is a fact in our domestic history which
the Court is bound to notice and to know.
“ The true test of its existence, as found in the writings of the sages
of the common law, may be thus summarily stated :- When the
regular course of ju-tice is interrupted by revolt, rebellion, or insurrec-
tion, so that the Courts of Justice cannot be kept open, civil war exists,
and hostilities may be prosecuted on the same footing as if those opposing
the Gorernment were foreign enemies invading the land.'
• By the Constitution, Congress alone has the power to declare a
national or foreign war. It cannot declare war against a State, or any
number of States, by virtue of any clause in the Constitution. The Con-
stitution confers on the President the whole executive power. He is
bound to take care that the laws be faithfully executed. He is Com-
mander-in-Chief of the Army and Navy of the United States, and of the
militia of the several States when called into the actual service of the
United States. He has no power to initiate or declare a war either
against a foreign nation or a domestic State. But by the Acts of Con-
gress of February 28th, 1795, and March 3rd, 1807, he is authorized
to call out the militia and use the military and naval forces of the
United States in case of invasion by foreign nations, and to suppress
insurrection against the Government of a State or of the United
States.
“If a war be made by invasion of a foreign nation, the President is not
only authorized but bound to resist force by force. He does not initiate
the war, but is bound to accept the challenge without waiting for any
special legislative authority. And whether the 'hostile party be a
foreign invader, or States organized in rebellion, it is none the less a war,
although the declaration of it be unilateral.' Lord Stowell (1 Dodson,
247) observes: “It is not the less a war on that account, for war may
exist without a declaration on either side. It is so laid down by the best
writers on the law of nations. A declaration of war by one country only,
is not a mere challenge to be accepted or refused at pleasure by the other.'
“ The battles of Palo Alto and Resaca de la Palma had been fought
before the passage of the Act of Congress of 13th May, 1846, which
recognized 'a state of war as existing by the act of the Republic of
Mexico.' This Act not only provided for the future prosecution of the
war, but was itself a vindication and ratification of the act of the Presi-
dent in accepting the challenge without a previous formal declaration of
war by Congress.
“This greatest of civil wars was not gradually developed by popular
commotion, tumultuous assemblies, or local unorgavized insurrections.
Howerer long may have been its previous conception, it nevertheless
sprang forth suddenly from the parent brain, a Minerva in the full
panoply of war. The President was bound to meet it in the shape it
94
COM-MENCEMENT OF CIVIL WAR.
1
Chap. IV. presented itself, without waiting for Congress to baptize it with a name ;
and no name given to it by him or them could change the fact.
Note I.
“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 says : “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.' (See also 3 Binn., 252.)
“ As soon as the news of the attack on Fort Sumter, and the orga-
nization of a Government by the seceding States, assuming to act as
belligerents, could become known in Europe, to wit, on the 13th of May,
1861, the Queen of England issued her proclamation of neutrality,
recognizing hostilities as existing between the Government of the
United States of America and certain States styling themselves the
Confederate States of America.' This was immediately followed by
similar declarations or silent acquiescence by other nations.
“After such an official recognition by the Sovereign, a citizen of a
foreign State is estopped to deny the existence of a war with all its
consequences as regards neutrals. They cannot ask a Court to affect a
technical ignorance of the existence of a war, which all the world
acknowledges to be the greatest civil war known in the history of the
human race, and thus cripple the arm of the Government and paralyze
its power by subtle definitions and ingenious sophisms.
“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 the insurgents who
have risen in rebellion against their Sovereign, expelled her Courts,
established a Revolutionary Government, organized armies, and com-
menced 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.'
“ Whether the President, in fulfilling his duties, as Commander-in-
chief, in suppressing an insurrection, has met with such armed hostile
resistance, and a civil war of such alarming proportions, as will compel
him to accord to them the character of belligerents, is a question to be
decided by him, and this Court must be governed by the decisions and
acts of the political department of the Government to which this power
was entrusted.
• He must determine what degree of force the crisis
demands.'. The proclamation of the blockade is itself official and
DECISIONS OF FEDERAL COURTS.
95
conclusive evidence to the Court that a state of war existed which Chap. IV.
demanded and authorized a recourse to such a measure, under the
circumstances peculiar to the case.
Note I.
“The correspondence of Lord Lyons with the Secretary of State
adınits the fact and concludes the question.
“ If it were necessary to the technical existence of a war that it
should have a legislative sanction, we find it in almost every Act passed
at the Extraordinary Session of the Legislature of 1861, which was
wholly employed in enacting laws to enable the Government to prosecute
the war with vigour and efficiency. And finally, in 1861, we find Congress
ex majore cautela and in anticipation of such astute objections, passing an
Act approving, legalizing, and making valid all the acts, proclamations,
and orders of the President, &c., as if they had been issued and done
under the previous express authority and direction of the Congress of
the United States.'
“ Without admitting that such an Act was necessary under the
circumstances, it is plain that, if the President had in any manner
assumed powers which it was necessary should have the authority or
sanction of Congress, on the well-known principle of law, omnis
ratihabitio retrotrahitur et mandato æquiparatur, this ratification has
operated to perfectly cure the defect. In the case of Brown v. United
States (8 Cranch, 131, 132, 133), Mr. Justice Story treats of this subject,
and cites numerous authorities to which we may refer to prove this
position, and concludes: 'I am perfectly satisfied that no subject can
commence hostilities or capture property of an enemy, when the
Sovereign has prohibited it. But suppose he did, I would ask if the
Sovereign may not ratify his proceedings, and thus by a retroactive
operation give validity to them ?'
Although Mr. Justice Story dissented from the majority of the
Court on the whole case, the doctrine stated by him on this point is
correct and fully substantiated by authority.
“ The objection made to this act of ratification, that it is ex post facto,
and therefore unconstitutional and void, might possibly have some weight
on the trial of an indictment in a Criminal Court. But precedents from
that source cannot be received as authoritative in a tribunal administering
public and international law.
• On this first question therefore we are of the opinion that the
President had a right, jure belli, to institute a blockade of ports in
possession of the States in rebellion, which neutrals are bound to
regard.
II. We come now to the consideration of the second question.
What is included in the term 'enemies' property ?'
“Is the property of all persons residing within the territory of the
States now in rebellion, captured on the high seas, to be treated as
• enemies' property' whether the owner be in arms against the Govern-
ment or not?
“ The right of one belligerent not only to coerce the other by direct
96
COMMENCEMENT OF CIVIL WAR.
i
Chap. IV. force, but also to cripple his resources by the seizure or destruction of
his property, is a necessary result of a state of war. Money and wealth,
Note I.
the products of agriculture and commerce, are said to be the sinews of
war, and as necessary in its conduct as numbers and physical force.
Hence it is, that the laws of war recognize the right of a belligerent to
cut these sinews of the power of the enemy, by capturing his property
on the high seas.
" The Appellants contend that the term 'enemy' is properly applic-
able to those only who are subjects or citizens of a foreign State at war
with our own. They quote from the pages of the Common Law, which
say, “that persons who wage war against the King may be of two kinds,
subjects or citizens. The former are not proper enemies, but rebels
and traitors; the latter are those that come properly under the name of
enemies.'
“ They insist, moreover, that the President himself, in his Proclama-
tion, admits that great numbers of the persons residing within the terri-
tories in possession of the Insurgent Government, are loyal in their
feelings, and forced by compulsion and the violence of the rebellious
and revolutionary party and its 'de facto Government' to submit to their
laws and assist in their scheme of revolution; that the acts of the
usurping Government cannot legally sever the bond of their allegiance;
they have, therefore, a co-relative right to claim the protection of the
Government for their persons and property, and to be treated as loyal
citizens, till legally convicted of having renounced their allegiance and
made war against the Government by treasonably resisting its laws.
They contend, also, that insurrection is the act of individuals, and
not of a Government or Sovereignty. That the individuals engaged are
subjects of law. That confiscation of their property can be effected only
under a municipal law. That by the law of the land such confiscation
cannot take place without the conviction of the owner of some offence,
and finally that the Secession Ordinances are nullities and ineffectual to
release any citizen from his allegiance to the national Government, and
consequently that the Constitution and laws of the United States are
still operative over persons in all the States, for punishment as well as
protection.
“ This argument rests on the assumption of two propositions, each of
which is without foundation in the established law of nations. It
assumes that where a civil war exists, the party belligerent, claiming to
be Sovereign, cannot, for some unknown reason, exercise the rights of
belligerents, although the revolutionary party may. Being Sovereign, he
can exercise only sovereign rights over the other party. The insurgent
may be killed on the battle-field or by the executioner; his property on
land may be confiscated under the municipal law; but the commerce on
the ocean, which supp'ies the rebels with means to support the war, can-
not be made the subject of capture under the laws of war, because it is
' unconstitutional.' Now, it is a proposition never doubted, that the
belligerent party who claims to be Sovereign, may exercise both belli-
66
}
DECISIONS OF FEDERAL COURTS.
97
gerent and sovereign rights (see 4 Cranch, 272). Treating the other party Chap. IV.
as a belligerent and using only the milder modes of coercion which the
law of nations has introduced to mitigate the rigours of war, cannot be a Note I.
subject of complaint by the party to whom it is accorded as a grace or
granted as a necessity. We bave shown that a civil war such as that
now waged between the Northern and Southern States is properly con-
ducted according to the humane regulations of public law as regards
capture on the ocean.
“ Under the very peculiar Constitution of this Government, although
the citizens owe supreme allegiance to the Federal Government, they
owe also a qualified allegiance to the State in which they are domiciled.
Their persons and property are subject to its laws.
“Hence, in organizing this rebellion, they have acted as States
claiming to be Sovereign over all persons and property within their
respective limits, and asserting a right to absolve their citizens from
their allegiance to the Federal Gorernment. Several of these States
have combined to form a new Confederacy, claiming to be acknowledged
by the world as a sovereign State. Their right to do so is now being
decided by wager of battle. The ports and territory of each of these
States are held in hostility to the General Government. It is no loose,
unorganized insurrection, having no defined boundary or possession. It
has a boundary marked by lines of bayonets, and which can be crossed
only by force; south of this line is enemies' territory, because it is
claimed and held in possession by an organized, hostile, and belligerent
power.
“ All persons residing within this territory whose property may be
used to increase the revenues of the hostile power are, in this contest,
liable to be treated as enemies, though not foreigners. They have cast
off their allegiance and made war on their Government, and are none
the less enemies because they are traitors.
“ But in defining the meaning of the term 'enemies' property,' we
will be led into error if we refer to Fleta and Lord Coke for their defini-
tion of the word “enemy. It is a technical phrase peculiar to Prize
Courts, and depends upon the principles of public policy as distinguished
from the Common Law.
“ Whether property be liable to capture as 'enemies' property'
does not in any manner depend on the personal allegiance of the
owner. • It is the illegal traffic that stamps it as
“ enemies' property.”
It is of no consequence whether it belongs to an ally or a citizen.
(8 Cranch, 384.) The owner, pro hac vice, is an enemy.' (3 Wash.
C. C. R., 183.)
“ The produce of the soil of the hostile territory, as well as other
property engaged in the commerce of the hostile power, as the source of
its wealth and strength, are always regarded as legitimate prize, without
regard to the domicil of the owner, and much more so if he reside and
trade within their territory.
“III. We now proceed to notice the facts peculiar to the several
н
98
COMMENCEMENT OF CIVIL WAR.
Chap. IV. cases submitted for our consideration. The principles which have just
been stated apply alike to all of them.
Note I.
The Tropic Wind.--A decision to the same effect had been pro-
nounced on the 17th June, 1861, by the Judge of the District Court
of the United States for the District of Columbia, in the case of the
British schooner Tropic Wind, captured on the 21st May.
“ The President," said the Judge, “ in his Proclamation relating to
the blockade of the ports of the Confederate States, calling out 75,000
Militia to suppress insurrection and the resistance to the Federal laws,
alleges, that nine States have so resisted, and have threatened to
issue letters of marque, to authorize the bearersthereof to commit
assaults against the vessels, property, and lives of citizens engaged in
commerce on the high seas and in the waters of the United States; that
public property of the United States has been seized, the collection of
the revenue obstructed, and duly commissioned officers of the United
States, while engaged in executing the orders of their superiors, have
been arrested and held in custody as prisoners, or have been impeded in
the discharge of their official duties, without due legal process, by
persons claiming to act under authorities of the States of Virginia and
North Carolina.'
“ These facts, so set forth by the President, with the assertion of
the right of blockade, amount to a declaration that civil war exists.
“ Blockade itself is a belligerent right, and can only legally have
place in a state of war; and the notorious fact that immense armies in
our immediate view are in hostile array against each other in the Federal
and Confederate States, the latter having organized a Government, and
elected officers to administer it, attest the executive declaration that civil
war exists; a sad war, which, if it must go on, can only be governed by
the laws of war, and its evils mitigated by the principles of clemency
engrafted upon the war code by the civilization of modern times."
1
The Amy Warwick.—“ In addition,” said Judge Sprague, in the case
of the Amy Warwick, “to other important acts, the President, by
Proclamation of the 27th of April, established a blockade of the ports
of Virginia. This was the exercise of a great belligerent right, and
could bave been done under no other. He could not prohibit or restrict
the commerce of any State by a mere municipal regulation. The
blockade was avowedly established as a belligerent act under the law
of nations; and it was accordingly announced that it would be rendered
effective by an adequate naval force, and in all proceedings in relation
to it by our own country and other nations it has been regarded as a
belligerent act. That the United States in this war has on the ocean
all the rights of belligerents, has never been distinctly controverted. To
deny it is to break up the blockade, and every condemnation under it."
“ I understand and agree,” said Mr. Evarts, arguing as Counsel for
1
DECISIONS OF FEDERAL COURTS.
99
the United States in the prosecution of the crew of the Savannah, Chap. IV.
“that for certain purposes there is a condition of war which forces itself
on the attention and duty of Governments, and calls on them to exert
Note I.
the power and force of war for their protection and maintenance.
Nor, gentlemen, have I ever denied, nor shall I here deny, that when
the proportions of a civil dissension or controversy came to the port and
dignity of war, good sense and common intelligence require the Govern-
ment to recognize it as a question of fact according to the actual circum-
stances of the case, and to act accordingly. I, therefore, have no
difficulty in conceding that outside of any question of law and right-
outside of any question as to whether there is a Government down there,
whether nominal or real, or that can be described as having any con-
sistency of any kind under our law and Government—there is prevail-
ing in this country a controversy which is carried on by the methods
and which has the proportions and extent of what we call war. And I
admit that if this Government of ours were not a party to this contro-
versy—if it looked at it from the outside, as England and France have
donemour Government would have had the full right to treat these con-
tending parties in its courts and before its laws as belligerents engaged
in hostilities, as it would have had an equal right to take the opposite
course."
The reader may further consult an able pamphlet by a lawyer,
highly esteemed in this country as well as in the United States,
Mr. Whiting: The War Powers of the President, and the Legislative
Powers of Congress in relation to Rebellion, Treason, and Slavery.
(Boston: Seventh edition, 1863.)
Mr. Whiting observes, p. 45 : “ The Government have in fact treated
the insurgents as belligerents without recognizing them in express terms
as such. They have received the capitulation of rebels at Hatteras, as
prisoners of war, in express terms, and have exchanged prisoners of
war as such, and have blockaded the coast by military authority, and
have officially informed other nations of such blockade, and of their
intention to make it effective, under the present law of nations. They
have not exercised their undoubted right to repeal the laws making
either of the blockaded harbours ports of entry. They have relied solely
on their belligerent' rights, under the law of nations."
It would be a correct account, probably, of the law of the United
States as interpreted by the Supreme Court to say that, as regards
inhabitants of the Confederate States, the rights of citizenship were
suspended during the revolt, but not its obligations. Such persons, taken
in arms against the Union, would have been held punishable as offenders
against its laws. In the case of the crew of the Savannah, captured
on the 3rd June, 1861, and in that of William Smith, one of the crew
of the Jeff Davis, taken prisoner on board of the schooner Enchantress,
a re-captured prize, no doubt was entertained on that head. But the
H 2
100
COMMENCEMENT OF CIVIL WAR.
Chap. IV
Note I.
War.
crew of the Savannah were not, in fact, punished as malefactors, the
proceedings against them being dropped, after a trial in which the jury
were unable to agree upon a verdict; nor was Smith himself, though
against him a conviction was obtained. They were transferred, under an
order issued to the marshals in whose keeping they were by the Secretary
of State, to a military prison, where they were detained as prisoners of
The Confederate Government had threatened retaliation, and
would certainly have executed the threat. To avoid this, as well as on
general grounds of humanity, men taken in arms were throughout the
contest treated as prisoners of war, and exchanges were effected by
means of cartel arrangements between the Generals in command.
Some difference of opinion has existed, and, I believe, still exists,
as to the time at which the state of war, with the rights which it con-
ferred on the United States as against the people of the South, ought to
be deemed to hare terminated. The continued existence of those rights
has been regarded as justifying the Reconstruction Acts, the Act of the
2nd March, 1867, by which the Southern States were parcelled out
into military districts and placed under military control, and the exercise
of military jurisdiction in those States. Upon this head the reader may
refer to the opinion of Attorney-General Hoar on the case of Weaver,
tried and sentenced by a military tribunal in 1868 (in which Mr. Hoar
speaks of the war as having been a war between the States " as organized
communities," and the United States), and the case of Semmes v. City
Fire Insurance Company, in the United States' Circuit Court, American
Law Review, October 1869.
!
NOTE II.
Note II.
An Act recognizing the Existence of War between the United States and
the Confederate States; and concerning Letters of Marque, Prizes, and
Prize Goods.
(Passed by the Congress of the Confederate States, 6th May, 1861).
“ Whereas the earnest efforts made by the Government to establish
friendly relations between the Government of the United States and the
Confederate States, and to settle all questions of disagreement between
the two Governments upon principles of right, justice, equity, and good
faith, have proved unavailing by reason of the refusal of the Government
of the United States to hold any intercourse with the commissioners
appointed by this Government for the purposes aforesaid, or to listen to
any proposals they had to make for the peaceful solution of all causes of
difficulty between the two Governments : and whereas the President of
the United States of America has issued his proclamation making requi-
sition upon the States of the American Union for 75,000 men for the
purpose, as therein indicated, of capturing forts and other strongholds
within the jurisdiction of and belonging to the Confederate States of
CONFEDERATE PRIZE ACT.
101
America, and has detailed naral armaments upon the coasts of the Con- Chap. IV.
federate States of America, and raised, organized, and equipped a large
military force to execute the purpose aforesaid, and has issued his other
Note II.
proclamation announcing his purpose to set on foot a blockade of the ports
of the Confederate States : and whereas the State of Virginia bas seceded
from the Federal Union and entered into a convention of alliance offensive
and defensive with the Confederate States, and has adopted the Provi-
sional Constitution of the said States, and the States of Maryland, North
Carolina, Tennessee, Kentucky, Arkansas, and Missouri have refused,
and it is believed that the State of Delaware and the inhabitants of the
the territories of Arizona and New Mexico, and the Indian territory
South of Kansas, will refuse, to co-operate with the Government of the
United States in these acts of hostilities and wanton aggression, which
are plainly intended to overawe, oppress, and finally subjugate the people
of the Confederate States : and whereas, by the acts and means aforesaid,
war exists between the Confederate States and the Government of the
United States and the States and territories thereof, except the States of
Maryland, North Carolina, Tennessee, Kentucky, Arkansas, Missouri, and
Delaware, and the territories of Arizona and New Mexico, and the Indian
territory South of Kansas: therefore,
“1. The Congress of the Confederate States of America do enact,
That the President of the Confederate States is hereby authorized
to use the whole land and naval force of the Confederate States to meet the
war thus commenced, and to issue to private armed vessels commissions,
or letters of marque and general reprisal, in such form as he shall think
proper under the seal of the Confederate States, against the vessels,
goods, and effects of the Government of the United States, and of the
citizens or inhabitants of the States and territories thereof: Provided
however, That property of the enemy (unless it be contraband of war)
laden on board a neutral vessel shall not be subject to seizure under this
Act: And provided further, That vessels of the citizens or inhabitants of
the United States now in the ports of the Confederate States, except such
as have been since the 5th of April last, or may hereafter be, in the
service of the Government of the United States, shall be allowed thirty
days after the publication of this Act to leave said ports and reach
their destination; and such vessels and their cargoes, excepting articles
contraband of war, shall not be subject to capture under this Act during
said period, unless they shall have previously reached the destination
for which they were bound on leaving said ports.
“ 2. That the President of the Confederate States shall be, and he is
hereby, authorized and empowered to revoke and annul, at pleasure, all
letters of marque and reprisal which he may at any time grant pursuant
to this Act.
563. That all persons applying for letters of marque and reprisal
pursuant to this Act shall state in writing the name and a suitable
description of the tonnage and force of the vessel, and the name and place
of residence of each owner concerned therein, and the intended number
102
COMMENCEMENT OF CIVIL WAR.
Chap. IV. of the crew; which statement shall be signed by the person or persons
making such application, and filed with the Secretary of State, or shall be
Note II.
delivered to any other officer or person who shall be employed to deliver
out such commissions, to be by him transmitted to the Secretary of State.
" 4. That before any commission or letters of marque and reprisal
shall be issued as aforesaid, the owner or owners of the ship or vessel for
which the same shall be requested, and the commander thereof for the
time being, shall give bond to the Confederate States, with at least two
responsible sureties not interested in such vessel, in the penal sum of
5,000 dollars, or if such vessel be provided with more than 150 men, then
in the penal sum of 10,000 dollars, with condition that the owners, officers,
and crew who shall be employed on board such commissioned vessel,
shall and will observe the laws of the Confederate States, and the
instructions which shall be given them according to law for the regula-
tion of their conduct, and will satisfy all damages and injuries which shall
be done or committed contrary to the tenor thereof by such vessel
during her commission, and to deliver up the same when revoked by the
President of the Confederate States.
“5. That all captures and prizes of vessels and property shall be
forfeited and shall accrue to the owners, officers, and crews of the vessels
by whom such captures and prizes shall be made, and, on due condemna-
tion had, shall be distributed according to any written agreement which
shall be made between them; and if there be no such written agreement,
then one moiety to the owners and the other moiety to the officers and
crew, as nearly as may be, according to the rules prescribed for the
distribution of prize money by the laws of the Confederate States.
“6. That all vessels, goods, and effects, the property of any citizen
of the Confederate States, or of persons resident within and under the
protection of the Confederate States, or of persons permanently within
the territories and under the protection of any foreign prince, Govern-
ment, or State in amity with the Confederate States, which shall have
been captured by the United States, and which shall be re-captured by
vessels commissioned as aforesaid, shall be restored to the lawful owners,
upon payment by them of a just and reasonable salvage, to be determined
by the mutual agreement of the parties concerned, or by the decree of
any court having jurisdiction, according to the nature of each case, agree-
ably to the provisions established by law. And such salvage shall be
distributed among the owners, officers, and crews of the vessels com-
missioned as aforesaid, and making such captures, according to any
written agreement which shall be made between them; and in case of
no such agreement, then in the same manner and upon the principles
hereinbefore provided in cases of capture.
“7. That before breaking bulk of any vessel which shall be
captured as aforesaid, or other disposal or conversion thereof, or of any
articles which shall be found on board the same, such captured vessel,
goods, or effects shall be brought into some port of the Confederate States,
or of a nation or State in amity with the Confederate States, and shall be
CONFEDERATE PRIZE ACT.
103
proceeded against before a competent tribunal; and after condemnation Chap. IV
and forfeiture thereof shall belong to the owners, officers, and crew of the
vessel capturing the same, and be distributed as before provided; and in
Note II.
the case of all captured vessels, goods, and effects which shall be brought
within the jurisdiction of the Confederate States, the district courts of the
Confederate States shall have exclusive original cognizance thereof, as
the civil causes of Admiralty and Maritime jurisdiction; and the said
courts, or the courts, being courts of the Confederate States, into which
such cases shall be removed, and in which they shall be finally decided,
shall and may decree restitution in whole or in part, when the capture
shall have been made without just cause. And if made without probable
cause, may order and decree damages and costs to the party injured, for
which the owners and commanders of the vessels making such captures,
and also the vessels, shall be liable.
“8. That all persons found on board any captured vessel, or on
board any re-captured vessel, shall be reported to the collector of the
port in the Confederate States in which they shall first arrive, and shall
be delivered into the custody of the marshal of the district, or some court
or military officer of the Confederate States, or of any State in or near
such port, who shall take charge of their safe keeping and support, at the
expense of the Confederate States.
“9. That the President of the Confederate States is hereby authorized
to establish and order suitable instructions for the better governing
and directing the conduct of the vessels so commissioned, their officers
and crews, copies of which shall be delivered by the collector
of the customs to the commanders, when they shall give bond as
provided.
“ 10. That a bounty shall be paid by the Confederate States of
20 dollars for each person on board any armed vessel belonging to the
United States at the commencement of an engagement, which shall be
burnt, sunk, or destroyed by any vessel commissioned as aforesaid, which
shall be of equal or inferior force, the same to be divided as in other
cases of prize money; and a bounty of 25 dollars shall be paid to the
owners, officers, and crews of the private armed vessels commissioned ag
aforesaid, for each and every prisoner by them captured and brought into
port, and delivered to an agent authorized to receive them, in any port
of the Confederate States; and the Secretary of the Treasury is hereby
authorized to pay or cause to be paid to the owners, officers, and crews
of such private armed vessels commissioned as aforesaid, or their agent,
the bounties herein provided.
“11. That the commanding officer of every vessel having a com-
mission or letters of marque and reprisal during the present hostilities
between the Confederate States and the United States shall keep a
regular journal, containing a true and exact account of his daily proceed-
ings and transactions with such vessel and the crew thereof; the ports
and places he shall put into or cast anchor in; the time of his stay there
and the cause thereof; the prizes he shall take, and the nature and probable
ܐ
104
COMMENCEMENT OF CIVIL WAR.
Chap. IV.
Note II.
value thereof; the times and places when and where taken, and in what
manner he shall dispose of the same; the ships or vessels he shall fall in
with ; the times and places when and where he shall meet with them,
and his observations and remarks thereon; also of whatever else shall
occur to him, or any of his officers or marines, or be discovered by exami-
nation or conference with any marines or passengers of or in any other
ships or vessels, or by any other means, touching the fleets, vessels and
forces of the United States, their posts and places of station and destina-
tion, strength, numbers, intents and designs; and such commanding
officer shall, immediately on his arrival in any port of the Confederate
States, from or during the continuance of any voyage or cruise, produce
his commission for such vessel, and deliver up such journal so kept as
aforesaid, signed with his proper name and handwriting, to the collector
or other chief officer of the customs at or nearest to such port; the truth
of which journal shall be verified by the oath of the commanding officer
for the time being. And such collector or other chief officer of the cus-
toms shall, immediately on the arrival of such vessel, order the proper
officer of the customs to go on board and take an account of the officers
and men, and number and nature of the guns, and whatever else shall
occur to him on examination material to be known; and no such vessel
sball be permitted to sail out of port again until such journal shall have
been delivered up, and a certificate obtained under the hand of such
collector or other chief officer of the customs that she is manned and
armed according to her commission, and, upon delivery of such certificate,
any former certificate of a like nature which shall have been obtained by
the commander of such vessel shall be delivered up.
“ 12. That the commanders of vessels having letters of marque
and reprisal as aforesaid, neglecting to keep a journal as aforesaid, or
wilfully making fraudulent entries therein or obliterating the record of
any material transaction contained therein, where the interest of the
Confederate States is concerned, or refusing to produce and deliver such
journal, commission, or certificate, pursuant to the preceding section of
this Act, then and in such cases the commissions or letters of marque and
reprisal of such vessels shall be liable to be revoked ; and such com-
manders respectively shall forfeit for every such offence the sum of 1,000
dollars, one moiety thereof to the use of the Confederate States, and the
other to the informer.
“13. That the owners or commanders of vessels having letters
of marque and reprisal as aforesaid, who shall violate any of the Acts of
Congress for the collection of the revenue of the Confederate States, and
for the prevention of smuggling, shall forfeit the .commission or letters of
marque and reprisal, and they and the vessels owned or commanded by
them shall be liable to all the penalties and forfeitures attaching to
merchant-vessels in like cases.
“ 14. That on all goods, wares, and merchandize captured and made
good and lawful prizes of war by any private armed ship having
commission or letters of marque and reprisal under this Act, and brought
t
CONFEDERATE PRIZE ACT.
105
mto the Confederate States, there shall be allowed a deduction of 33} Chap. IV.
per cent on the amount of duties imposed by law.
‘ 15. That five per centum on the net amount (after deducting all Note II.
charges and expenditures) of the prize money arising from captured
vessels and cargoes, and on the net amount of the salvage of vessels and
cargoes re-captured by private armed vessels of the Confederate States,
shall be secured and paid over to the collector or other chief officer of the
customs, at the port or place in the Confederate States at which such
captured or re-captured vessels may arrive, or to the Consul or other
public agent of the Confederate States residing at the port or place, not
within the Confederate States, at which such captured or re-captured vessel
may arrive. And the moneys arising therefrom shall be held and are
hereby pledged by the Government of the Confederate States as a fund
for the support and maintenance of the widows and orphans of such
persons as may be slain, and for the support and maintenance of sueh
persons as may be wounded and disabled, on board of the private armed
vessels commissioned as aforesaid, in any engagement with the enemy, to
be assigned and distributed in such manner as shall hereafter be provided
by law."
1
CHAPTER V.
General Remarks on the effect of a Civil War on International Relations,
--Sovereignty, what it is, and how affected by a Revolt.-Sovereignty
de jure and de facto.-Effect of a Revolt, while it lasts, in displacing
assumptions common to Municipal and International Law.
Difficulties thus created, and how they are met.---Neutrality of
Foreign States during a Civil War.- Belligerent Rights, what they
are, when they arise and expire, and on what ground the recognition
of them proceeds.--A Rebel not a Pirate.
WE have reached a point at which the revolt and its
consequences began to affect the international relations
of the United States with other Powers. We are on the
confines, therefore, of the domain of International Law;
and it may be convenient that, before going further, I
should attempt to state, as clearly and concisely as I
am able, some simple propositions which meet us at the
outset.
The collection of rules called International Law
assigns to all Sovereign States certain rights and obliga-
tions. These rules are, in fact, opinions which have
acquired a force analogous to that of laws from their
general acceptance, from having been often acted upon,
and from the sense that the recognition of some fixed
standards for the regulation of conduct and the adjust-
ment of disputes is a matter of great and universal
convenience. When we speak of an international obli-
gation, we mean that there is a rule which, as between
nations, enjoins or forbids a given act, and that this rule
is the accepted measure, so far as it goes, of what is just
or unjust in a given case. The force of the rule, what-
ever it be and from whatever source derived, constitutes
THEORY OF SOVEREIGNTY.
107
Chap. V.
the obligation, and every nation against which the rule
may be invoked is said to be bound or obliged by it.
By an international right we mean a claim to the per-
formance of an international obligation.
By a Sovereign State we mean a community or
number of persons permanently organized under a Sove-
reign Government of their own; and by a Sovereign
Government we mean a Government, however con-
stituted, which exercises the power of making and
enforcing law within a community, and is not itself
subject to any superior Government. These two factors,
one positive, the other negative-the exercise of power,
and the absence of superior control-compose the notion
of sovereignty, and are essential to it. The question
whether a given community is a Sovereign State, and
the question who is or are sovereign in a given com-
munity, are thus, properly speaking, pure questions of
fact.
The rebellion of part of a community against the
Sovereign Government has the effect, while it lasts, of
paralyzing or suspending the actual sovereignty of the
Government as to the rebellious part. If successful, it
has the further effect of substituting a new Government
without impairing the integrity of the State, or else of
dividing the community itself into more States than one.
A new State thus created has the same general rights
and obligations as others, and is entitled to have them
acknowledged, since the reasons on which those rights
and obligations depend are good for all States indiscrimi-
nately, without reference to their origin; and it is, as
we have seen, only a question of fact whether a com-
munity which lays claim to the character of a State be
such or no. An acknowledgment by other States that
this character has actually been acquired by a revolted
community, is usually spoken of as a recognition of its
independence.
Isolated acts of resistance to the law, local risings
108
EFFECT OF A REVOLT.
Chap. V.
soon suppressed, do not suspend or interrupt the sove-
reignty of the Government. The power is there; all
that is necessary is to exert it.
Sovereignty, independence, subjection, are permanent
conditions, though the degree of permanence is incapable
of precise definition. A revolted community seldom
succeeds in establishing a Government, and achieving
independence, at a blow; and some time must usually
elapse before it can be safely and prudently recognized
as independent by other nations. There is commonly a
period of transition and struggle, until the expiration of
which it is uncertain whether the old state of things will
be re-established or no. During this period the sove-
reignty of the original Government over its refractory
subjects has really ceased to exist, for power which cannot
be exercised is not power: there remains only the hope
or expectation that it will be restored, coupled in the
minds of its adherents with the opinion that it ought to
be restored-an opinion which is expressed by the phrase
“Sovereignty de jure.” A de jure Government is one
which, in the opinion of the person using the phrase,
ought to possess the powers of sovereignty, though at the
time it may be deprived of them. A de facto Govern-
ment is one which is really in possession of them,
although the possession may be wrongful or precarious.
This is a period in which troublesome questions are
likely to arise, both in respect of the administration of
law within the country thus divided against itself and in
respect of its international relations. For both municipal
and international law assume, as they necessarily must,
the existence in every State of a Government exercising
a reasonable and substantial, though not an absolute,
control within every part of its dominions; and on this
basis all their rules are framed. But this assumption
may be displaced in particular cases, just as the analo-
gous assumption, common to all law whatsoever, that
men are masters of their own actions, is displaced in
EFFECT OF A REVOLT.
109
cases where the mind is unhinged and the understanding Chap. V.
clouded by disease. Here is a Government, supposed to
be sovereign, at war with those who are supposed to be
its subjects; here is a body of people supposed to be
subject to a Sovereign against whom they are fighting
with all their might, and who is fighting with all his
might against them. Such anomalies baffle the applica-
tion of general rules; and, in order to provide for them
without breaking in more than is absolutely necessary
on the rule itself, nations and Governments have had
recourse to shifts and expedients.
Thus it is clear—although courts of justice may shut
their eyes to it—that the character of a subject or citizen
of a State, and that of a public enemy of the same State,
are really incompatible with one another. Yet it has
been decided, as we have already seen, in the Supreme
Court of the United States, not only that the same
person may be both a citizen and a public enemy, but
that this double character belonged in fact to all persons
residing in the Confederate States, whether they had
personally shared in the revolt or no. Their status, in
the view of the law, was changed by the acts of others,
in which they had not participated. A citizen is entitled
to claim, for his property as well as his person, the pro-
tection of the law, and is liable to punishment for break-
ing the law; a public enemy, as such, is exempt from
that liability, and has no claim to that protection. Loyal
Southerners, resident in the South, though regarded by
the law as citizens, were placed, as regards their property,
out of the pale of its protection ; disloyal Southerners,
taken in arms against the United States, though re-
garded by the law as malefactors, were not punished as
such, but detained and exchanged as prisoners of war.
Further, the Federal Courts, whilst regarding the Govern-
ments of the revolted States as unlawful because in
open
rebellion, have recognized the fact that they were really
Governments in a country where there was no other, and
110
DISPLACEMENT OF SOVEREIGNTY.
Chap. V.
have regarded their acts as valid, so far as those acts were
unconnected with the rebellion.
If it is found in practice that considerations, too
powerful to be resisted, force such expedients and com-
promises as these on the authorities whose duty it is
to compel obedience to the laws; it would certainly be
very unreasonable to expect foreign nations, who are
under no such obligation, to apply a more rigid rule.
The practice of nations does not require this of them.
As long as it is uncertain whether the new Government
will succeed in establishing its independence, it is usual
for them to abstain from official intercourse with it.
But the existence of a large body of people yielding
1 In the case of Texas v. White (Wallace, vii, 700), the question
arose whether a sale during the war, under the authority of the Texas
Legislature, of certain United States' Bonds, transferable by delivery and
belonging to the State of Texas, was valid. In the course of the judg-
ment, delivered by Chief Justice Chase, the Court made the following
observations :-
“ The Legislature of Texas, at the time of the repeal, constituted one
of the Departments of a State Government established in hostility to the
Constitution of the United States. It cannot be regarded, therefore, in the
Courts of the United States as a lawful legislature, or its acts as lawful
acts.
And yet it is a historical fact that the Government of Texas, then
in full control of the State, was its only actual Government; and certainly,
if Texas had been a separate State and not one of the United States, the
new Government, having displaced the regular authority, and having
established itself in the customary seats of power and in the exercise of
the ordinary functions of administration, would have constituted, in the
strictest sense of the word, a de facto Government; and its acts, during
the period of its existence as such, would be effectual, and in almost all
respects valid. And to some extent, this is true of the actual Government
of Texas, though unlawful and revolutionary as to the United States.
“It is not necessary to attempt any exact definitions within which the
acts of such a State Government must be treated as valid or invalid. It
may be said, however, that Acts necessary to peace and good order among
citizens, such for example as Acts sanctioning and protecting marriage
and the domestic relations, governing the course of descents, regulating
the conveyance and transfer of property, real and personal, and providing
remedies for injuries to person and estate, and other similar acts, which
would be valid if emanating from a lawful government, must be regarded
in general as valid when proceeding from an actual though unlawful
INTERNATIONAL CONSEQUENCES.
111
Chap. V.
obedience to no recognized Government, and therefore
formally shut out from the pale of public law, is in
itself an evil, and may be a source of grave incon-
veniences. If such persons commit wrongful acts
against the subjects of other States, to whom is com-
plaint to be made, and who is responsible ? Their
original Sovereign ? But he is helpless; no redress
can be obtained from him; and he would refuse,
with justice, to be answerable for the misdeeds of
those who are wholly beyond his control. Foreign
nations, which must for awhile endure these incon-
veniences, have a right to protect themselves and their
subjects against them in every reasonable way. In-
> >
Government, and that acts in furtherance or support of rebellion against
the United States, or intended to defeat the just rights of citizens, and
other acts of like nature, must in general be regarded as invalid and
void.”
Applying this test, the Court held the sale invalid as against the State
of Texas.
Io Thorington v. Smyth and Hartley, decided by the Supreme Court
in December 1868, it was held that, where a contract had been made in
Alabama during the war for the purchase of an estate, the price to be
paid in Confederate notes, a Bill to enforce the vendor's lien for the
unpaid purchase-money could be sustained, after the restoration of peace,
in a Court of the United States.
“ It is familiar history,” said Chief Justice Chase, “that early in
1861 the authorities of seven States, supported as was alleged by popular
majorities, combined for the overthrow of the national Union, and for the
establishment within its boundaries of a separate and independent Con-
federation. A governmental organization representing these States was
established at Montgomery, in Alabama, first under a Provisional Consti-
tution, and afterwards under a Constitution intended to be permanent.
In the course of a few months four other States acceded to this Confede-
ration, and the seat of the central authority was transferred to Richmond,
in Virginia. It was by the central authority thus organized, and under
its direction, that civil war was carried on upon a vast scale against the
Government of the United States for more than four years. Its power
was recognized as supreme in nearly the whole of the territory of the
States confederated in insurrection. It was the actual Government of
all the insurgent States, except those portions of them protected from its
control by the presence of the armed forces of the national Government.”
The precise character of such a Government, the Court proceeded, can
112
MARITIME NEUTRALITY.
Chap. V.
formal communications, exchanged as occasion may
arise, with the persons who actually exercise control
within the revolted community, are among the means
of doing this. It is an expedient, however, which
like most temporary makeshifts, is troublesome and
imperfect. As to the contest itself, it is to foreign
Powers a war in which they are neutral; the con-
tending parties—two portions of a people with the
whole of which they have been accustomed to live
in friendship-are to them two belligerents, between
whom they have to hold an even hand.
Neutrality, in wars which do not extend to the
hardly be defined with exactness. It was a de facto Government; but
not“ such a Government in its highest degree.” This exists where a
usurper has succeeded not only in establishing his power over particular
localities, but in gaining actual possession of the whole authority of the
Sovereign. It was analogous rather to cases in which a temporary
but complete authority over part of a country is established by con-
quest. (United States v. Rice, Wheaton's R., iv, 253; Fleming v. Page,
Howard's R., ix, 614.) The Government here “ did not indeed originate
in lawful acts of regular war, but it was not on that account less
actual or less supreme. It is to be observed that the rights and
obligations of a belligerent were conceded to it in its military
character very soon after the war began, from motives of humanity and
expediency, by the United States. The whole territory controlled by it
was thereafter held to be enemies' territory, and the inhabitants of that
territory were held to be in most respects enemies. To the extent, then,
of actual supremacy, however gained, in all matters of government
within its military lines, the power of the insurgent Government cannot
be questioned. That supremacy did not justify acts of hostility to the
United States. How far it should excuse them must be left to the lawful
Government upon the re-establishment of its authority. But it made
obedience to its authority in civil and local matters not only a necessity
but a duty; without such obedience civil order was impossible.” Hence,
although notes of the Confederate Gorernment were, as contracts, mere
nullities, they must be regarded as having constituted, while the revolt
lasted, the actual currency of the Confederate States, exactly as if they
bad been issued by a foreign Government temporarily occupying the
territory of those States. Contracts, therefore, made in that currency
ought to be enforced “after the restoration of peace," and the vendor was
held entitled to recover “ the actual value of the notes at the time and
place of the contract in lawful money of the United States."
0
MARITIME NEUTRALITY.
113
;
sea, is for the most part a merely negative condi- Chap. V.
tion: it is abstinence from active participation in a
strife with which the neutral can rarely be brought
into contact against his will. But maritime hostilities
are waged on the common highway of nations, in the
midst of peaceful traffic, with which they are liable to
interfere, and which is liable to interfere with them;
and(International Law, yielding to the necessities of the
case, has assigned to the belligerent, as against the
neutral, certain specific rights and powers, and has
regulated the exercise of them by a code of rules,
which, though rude and imperfect, is not on the whole
inequitable. Under this code neutral nations suffer,
and are bound to suffer, their merchant-ships to be
forcibly detained and searched on the high seas, and the
property of their subjects to be seized and confiscated
for acts which in time of peace would fall within the
common course of legitimate trade. These neutral
obligations,” these belligerent “rights,” arise when
war arises, and cease when it ceases : in peace the
code is dormant, it is active only during war; and
when it revives, it revives as a whole. To claim or
to concede the exercise of any belligerent right as
against a friendly power, is to recognize the existence
of war, with the entire train of consequences attached
to the fact by the law of nations; to claim the dis-
charge of any neutral obligation is to concede the
exercise of all neutral rights ; to concede to one party
the exercise of any belligerent right, is either to become
the ally and adherent of that one, or to concede all
such rights to both.
The code of maritime war, like every other branch of
International Law, is framed to govern the acts and
relations of Sovereign States. The wars which it con-
templates are wars between such States; it assumes the
existence on each side of a responsible authority com-
petent to enforce the observance of rules, commission
I
114
RECOGNITION OF BELLIGERENCY.
1
virarkan
Chap. V. public ships, and constitute Courts of Prize. Theoretically
it has no place in a struggle between a Sovereign Govern-
ment and its rebellious subjects; theoretically, no belli-
gerent right could in such a struggle be exerted against
a friendly nation, because the latter would be disabled
from exercising the rights of a neutral. But revolters
do not admit that they are subjects, and cannot be
expected to act as if they did; and it is certain that,
when they have acquired sufficient force and organiza-
tion to fight as an independent nation fights, they will
employ, as far as they can, all those means which
independent nations have deemed indispensable for the
effectual prosecution of hostilities. The Government
which they are assailing will, under the same circum-
stances, as certainly use the same weapons against
them. Indeed, if we consider what those belligerent
rights of which we are speaking are, we shall see that
a refusal of them by neutral nations would never be
tolerated by any body of people actually engaged in
war, and strong enough to resent it. No Government
with arms in its hands, whatever its character or origin,
would tamely submit to see its blockades set at nought
and its plans frustrated by the conveyance to the enemy,
under the very guns of its own fleet, of despatches,
troops, or munitions of war. Such a refusal would
speedily be followed by hostile collisions on every sea,
and the refusing nation would find itself engaged, against
its will, in irregular warfare with those against whom it
had no cause of quarrel.
A simple practical solution of this difficulty is found
in recognizing both the contending parties as belli-
gerents—that is (to expand the phrase into an expres-
sion of its full meaning), as entitled, in respect of the
neutral, to all those exceptional rights or powers with
which Sovereign States at war with one another are
clothed by International Law. And since these rights
can only be regularly exercised by means of a certain
RECOGNITION OF BELLIGERENCY.
115
known machinery, the recognition of them draws after it Chap. V.
a recognition of the machinery. The sentences, therefore,
of Prize Courts sitting within the territory occupied by
a population in revolt and under the authority of a
Government established there--commissions issued by
that Government--the flag which it has chosen-are
accepted and recognized within the jurisdiction of the
neutral, as emanations and symbols not, indeed, of the
sovereignty to which the Government lays claim, but of
that substantial though temporary and precarious power
which it possesses in fact. The flag and commission
are not those of a Sovereign State; but they are those
of an organized body of persons, who, so far as waging
war goes, are able to act as a Sovereign State ; for the
purposes of the war, therefore, they are permitted by
the neutral to confer within his jurisdiction the same
substantial powers and immunities as if the revolted
community were really Sovereign.
It is sometimes said that recognition to this extent
is due as of right to any body of people whose numbers
and organization enable them to carry on regular war-
fare, and who are actually engaged in it. It is not only
the right of the neutral to recognize—it is the right of
the belligerent to have recognition accorded to him. I
am averse to the use of language which appears vague
and abstract. But this, I think, cannot be denied-
that recognition in such cases has been sanctioned by
the practice and opinion of nations, not solely with a
view to the protection of the neutral, but on wider
grounds of general expediency. It is generally expe-
dient that the ordinary rules of war should extend, as
far as possible, to civil wars. The restraints which they
impose are here as wholesome, their influence in making
war regular and humane and in confining its range are
as useful; all the reasons of convenience on which they
repose apply to these wars with as much force as to
others. These considerations appear to show not only
I 2
116
RECOGNITION OF BELLIGERENCY.
Chap. V. that recognition may be conceded, but that it ought not
to be withheld. If this be true, as I have no doubt it
is, the change of expression will denote merely a change
in the point of view from which we contemplate the
rule. Regarded as giving an advantage to the belli-
gerent, it confers a right on the belligerent: regarded
as securing protection to the neutral, it confers a right
on the neutral.
On this assumed right the Government of the United
States acted, when, without previous communication
with neutral Governments, it declared a blockade and
proceeded to enforce it against neutral vessels. The
Confederate Government acted on the same assumed
right in proposing to issue letters of marque. And it
must be a confused mind which fails to see that, if
the right existed on one side, it existed also on
the other--or, in other words, that any rule of inter-
national law which may be invoked as against
neutrals by either belligerent may be equally invoked
by both.
If it be asked when and how foreign nations may
recognize the existence of a state of war, the answer is
easy. They may recognize it as soon as it exists, and in
whatever way they please. They are at liberty, if they
think fit, to wait until their ships are actually detained
or captured by either belligerent; they are equally at
liberty to anticipate these contingencies by an early
notification; and this latter course, which is the more
prudent of the two, is commonly pursued by States
which are near to the theatre of hostilities or have a
large mercantile marine. If it be further asked what
constitutes a state of war-where the line which divides
it from a mere insurrection is to be drawn-what
amounts to a sustained struggle--what quantity of force
is necessary, and what degree of organization ?--the
answer must be that these terms, though intelligible
enough, and not too vague for common use, do not
.
RECOGNITION OF BELLIGERENCY.
117
admit of precise definition. It would be trifling with Chap. V.
language to dignify by the name of war the rebellion of
which Massachusetts was the scene in 1786, and it
would be equally trifling with language to refuse it to
the late contest in America. A Government which has
itself begun to exercise belligerent rights can raise, of
course, no objection on this score. This is one of those
propositions which appear too obvious to be stated, till
experience shows that they are not too obvious to be
overlooked.
2
1 If it be asked (as it sometimes is) whether the moral quality of an
act of violence or rebellion can be affected by the number or fewness of
those who take part in it, by their organization, their prospects of success,
and the like,the answer is, that this is so far from being the true
question at issue that it has nothing at all to do with it. But it is clear
that these and other like considerations may affect, and that materially,
the moral quality of the act. To stab a policeman, and to take up arms
in a civil war, are not acts of the same class or on the same level,
though the motive, and the object sought to be obtained, may have been
in both cases the same.
% The American precedents on the subject of this Chapter may be read
in Lawrence's Wheaton (1863) p. 40, note, and more fully in a mure
recent work by the same author, of which only the first two volumes have
as yet appeared (Commentaire sur les Eléments du Droit International
et sur l'Histoire des Progrès du Droit des Gens de H. Wheaton), in
Mr. Harcourt's Letters (Letters of Historicus, 1863), and other well.
known books. Itself the offspring of a successful rerolt and a war of inde:
pendence waged by land and sea against the parent State, the American
Commonwealth has generally adhered with great steadiness to two
principles >
1. That questions of sovereignty and independence are to be treated
as questions of fact, and hence that, where a community has forcibly
separated itself from another, of which it formed an integral part and which
still claims dominion over it, recognition should follow, without reference
to the merits of the original controversy, on clear evidence, but only on
clear evidence,—that the revolted community has established its inde-
pendence. This course the Government of the United States has pursued
whenever the question arose, at the cost of " a transient estrangement of
good-will in those against whom it has by force of evidence been
compelled to decide.”—(President Jackson's Message in Relation to Texas,
1836.)
2. That, in a struggle for independence carried on by a revolted
portion of the State against the State itself, foreign nations may and
i
118
WHO ARE PIRATES ?
Chap. V.
Another observation may be added to the foregoing.
A person making war in any customary way, under the
flag of a de facto Government, against a Government
which has a claim on his allegiance, is unquestionably a
rebel; but it is a mistake to suppose that he can be
brought under the condemnation of International Law
by calling him a pirate. Piracy is said to be an offence
against the law of nations. It is really punished, like
every other crime, as an offence against the criminal
law of the country in which the offender is tried; the
peculiarity of it is, that it is everywhere recognized as a
crime, has a common definition, which is everywhere
accepted (though by the laws of some countries the
stigma and the punishment of piracy have been affixed
to other crimes also), and is justiciable everywhere. A
pirate is not entitled to the protection of any nationality,
nor is the ship in which he sails and which is under his
control reputed to be a ship of any nation. And, as he
is liable to be tried in one country as much as in
another, an acquittal in one country may be pleaded to
an arraignment in another. The reason why this crime
is taken out of the general classification of crimes and
should maintain a strict and impartial neutrality, opening their ports to
both parties, and on the same conditions, and not interfering in favour of
either to the prejudice of the other.—(President Monroe's Third Annual
Message, 1819.)
The second proposition, with reference especially to the question, in
what cases a revolted mass of population should be recognized as
belligerent, is stated with great clearness in a report presented to the
French Chamber of Deputies in February 1864, on a proposal to “recog-
nize” the Polish insurgents.(Lawrence, Commentaire, vol. i, p. 185.)
I may here refer to the “Proclamation of the President of the United
States for the Prevention of Unlawful Interference in the Civil War in
Canada” (5th January, 1838). This Proclamation spoke of “the Civil
War begun in Cavada,'' and proceeded to warn all persons against
compromitting the neutrality" of the Government of the United States.
No disturbance could well be more distinctly local than that which had
then broken out in Canada; it was a rising of discontented persons who
had taken arms against the Government without any pretence to civil or
military organization.
PIRACY.
119
thus placed by itself is, that the danger and alarm Chap. V.
which it creates are common to all men. It is because
a pirate is dangerous to everybody that he bears a caput
lupinum, may be seized by anybody, and punished any-
where. And it is evident that, if the accepted definition
of piracy includes offences which have not this character,
it is too loose for its purpose. The extent of the danger
and alarm created by any class of violent acts depends
primarily on the nature of the motive by which they
appear to be inspired. Thus, robbery is more generally
dangerous than revenge, because he who robs one man
would probably rob another, whilst a person desires to
be revenged on those only whom he believes to have
injured him; and robbery is dangerous generally,
although the robber may not have formed the intention
of committing more robberies than one. But a rebel is
not dangerous to anybody except the Government
against which he is fighting and its adherents, unless
he makes, of the belligerent character which he assumes,
a cloak for indiscriminate plunder; and in the chance
that he may do this, if there be no one to keep him in
order, lies the only conceivable plea—and that an
insufficient one-for his being hunted down as a pirate.
The definition of a pirate ought not, therefore, to
include a rebel. I leave to persons versed in criminal
law the questions whether an animus furandi or lucri
faciendi, in the strict sense of the phrase, be necessary to
constitute the legal offence of piracy; whether, in the
absence of it, proof of any other criminal intent would
be sufficient; and whether the animus belligerandi would
be held to be such a criminal intent by the tribunals of
another country, the Executive Government of which
had not recognized the existence of a war.
The inquiry
whether a rebel in a civil war, who has committed no
general depredations, could under any circumstances
be tried and punished as a pirate by the courts of a
foreign country, depends on the answer which may be
120
PIRACY.
Chap. V, given to these questions. But it is clear, I think, that
at any rate he ought not to be so tried and punished.
The acts of Semmes and Maffitt differed from those of
Forrest and Morgan only in being done at sea instead
of on land; and they were not, more than those,
proper objects for a criminal prosecution in England,
France, or Spain. If, therefore, a declaration of neu-
trality by the Government be really necessary to prevent
such an abuse of criminal justice—which I doubt-or to
relieve the question from uncertainty, these must be
reckoned among the legitimate and useful effects of such
a declaration. So far as it operates as an instruction to
the officers of the Government, it is an instruction to
abstain from treating these persons as that which they
are not, and to treat them as that which they are.
1
1 66
Piracy is robbery or a forcible depredation on the high seas,
without lawful authority, and done animo furandi and in the spirit and
intention of universal hostility. It is the same offence at sea with
robbery on land, and all the writers on the law of nations and on the
maritime law of Europe agree in this definition.”—Kent, Commentaries,
part i, section ix.
The reader will find the whole subject well discussed and all the
principal authorities referred to in Abdy's edition of Kent's Commentaries
on International Law, ch. xi; Lawrence's W'heaton (second annotated
edition), p. 246, note ; Dana's Wheaton (1866), p. 192, note, and p. 196,
note; and Phillimore's Commentaries on International Law, ch. xx.
The question whether Confederate privateersmen taken very soon
after the commencement of the war could be convicted of piracy, was
raised in the case of the crew of the Savannah, tried at New York,
and of William Smith, one of the crew of the Jeff. Davis, tried at
Philadelphia, both on the 22nd October, 1861. Judge Nelson, the Judge
of the Supreme Court who tried the crew of the Savannah, instructed
the jury, that, by the general law of nations, a pirate was one who
roved the sea in an armed vessel, without a commission from any Sovereign
State, on his own authority, and for the purpose of appropriating to him-
self whatever ressels he might meet. But the evidence in this case
showed that the design of the prisoner Baker, the captain of the
Savannah, was to depredate only on the vessels of one nation, the
United States, -an offence which fell short of piracy under the law of
nations. But there were special laws of the United States establishing
and defining piracy. The particular law applying to this case was that
of 1820, which says: “If any person shall upon the high scas commit the
PIRACY.
121
Chap. V.
crime of robbery in or upon any ship or vessel, or upon the ship's company
of any ship or vessel, or the lading thereof, such person shall be adjudged
to be a pirate, and upon conviction shall suffer death." The commission
issued by Mr. Davis could not be admitted as a defence; for the Courts of
the United States could not recognize such an authority till the Govern-
ment had done so. The felonious intent, which is an essential element in
the crime of robbery, consists in the taking of the property of another for
the sake of gain. If this was wanting in this case, the offence, whatever it
might be, was not that of pirący under the Statute. The jury could not
agree, and a new trial was ordered. The offence charged against Baker
was the capture of an American ship on the 1st of June, 1861. Smith
was convicted.
In the case of the Golden Rocket, captured by the Sumter on the
3rd July and burnt at sea, it was held by the Supreme Courts of Massa-
chusetts and Maine, and by the Circuit Court of the United States, that
the owner could not recover for the loss under policies which insured
against capture by pirates but not against belligerent capture. The
ground of the decision was that, although the destruction of the Golden
Rocket might be regarded by the law of the United States as an act of
piracy, it would not be so regarded according to the general public com-
mercial law of the world, and therefore must be presumed not to be
within the meaning of the parties to the policy. A similar decision was
pronounced by the Tribunal of Commerce at Marseilles (cited by Law-
rence, Commentaire sur les Eléments du Droit International, dcc., vol. i,
p. 183), in the case of a brig captured in 1823 by an armed ship of the
Columbian Government, which had not been recognized in any way by
France. The ship and cargo being insured by one policy against dangers
of the sea, and by another against perils of war, the Tribunal held that
the insurers under the latter policy were liable, on the ground that the
capture was an act of war and not an act of piracy.
If the Shenandoah had persisted in making captures (as at one time it
appeared that she was doing) after it had become clear that the war was
at an end and that the de facto Government which had commissioned
her had wholly ceased to exist, and after these facts were known to her
commander, the question whether his acts were or were not piracy might
have been raised in an English Court.
CHAPTER VI.
Relations of Great Britain to the United States.-Course pursued by the
British Government, and by other European Governments, at the
beginning of the War. The Queen's Proclamation of Neutrality.
Declaration of the Emperor of the French.—Declarations and Notifi-
cations of other Maritime Powers.
The progress of disunion in America had been
watched with anxiety by the principal European Go-
vernments, and especially by the Government of Great
Britain. The relations between the two countries were
friendly, and their intercourse incessant. Of the whole
foreign trade of the United States more than three-fifths,
of the foreign tonnage entering American ports more
than four-fifths, were contributed by-this kingdom and
its colonies. From the Western States of the Union
we drew every year large supplies of food, and from the
Southern the raw material for our most important
manufacture. Great Britain was herself an American
Power, and her possessions bordered on those of the
Republic across the whole breadth of the continent.
Any grave change or disturbance, therefore, occurring
in the United States had to the English Government an-
importance which it could have to no other.) Nor is it
immaterial to observe that, although unhappy dissen-
sions have sometimes divided the two nations the in-
fluences of a common origin, language, and literature,
seem to be indestructible, and that an Englishman hardly
feels himself a foreigner in America, or an American in
N England.
While the revolt was yet to come, Earl Russell had
ATTITUDE OF BRITISH GOVERNMENT,
123
communicated to Lord Lyons, then Her Majesty's Chap. VI.
Minister at Washington, the “concern" with which
the “danger of secession” was regarded by the Queen's
Government.1 He had expressed some surprise at
Mr. Buchanan's Message, which “appeared to be pre-
paring beforehand an apology" for it; but had in-
structed Lord Lyons to abstain carefully from any
interference, even in the form of advice.?
Four days before the expiration of President Bucha-
nan's term of office, Mr. Black, who had succeeded
General Cass as Secretary of State, addressed to all
the Ministers of the Republic at foreign Courts a
circular desiring them to use all proper and necessary
means in order to prevent the Governments, to which
they were respectively accredited, from recognizing the
independence of the seceding States. “This Govern.
ment,” said Mr. Black, “has not relinquished its
constitutional jurisdiction within the territory of those
States, and does not desire to do so." " It had the
right,” he added, “ to ask of all foreign Powers that
they should take no steps which may tend to encourage
the revolutionary movements of the seceding States, or
increase the danger of disaffection in those which still
remain loyal,"3 This despatch was read by Mr. Da to
Lord Russell, who “replied shortly and verbally, stating
that, even if the Government of the United States had
been willing to acknowledge the separation of the seced-
ing States as founded in right, Her Majesty's Govern-
ment would have seen with great concern the dissolution
of the Union which bound together the members of the
American Republic: that the opposition of the Govern-
ment of the United States to any such separation, and
the denial by them of its legality, would make Her
Majesty's Government very reluctant to take any step
1 Lord J. Russell to Lord Lyons, 29th Noveraber, 1860.
2 Lord J. Russell to Lord Lyons, 26th December, 1860.
3 Mr. Black to United States Ministers abroad, 28th February,
1861.
124
MR. SEWARD'S CIRCULAR,
Chap. VI. which might encourage or sanction the separation :
that, however, it was impossible to state, at the present
moment, in what shape the question might present
itself; nor was it in his power to bind the British
Government to any particular course of conduct in cases
of which the circumstances and the significance were at
present unkņown to us."]
Mr. Seward, on assuming office as Secretary of State,
renewed, by a second circular, with increased emphasis,
the injunctions given by his predecessor, urging “the
exercise of the greatest possible diligence and fidelity to
counteract and prevent the designs of those who would
invoke foreign intervention to embarrass or overthrow
the Republic.”
“ You will tộuthfully urge upon the Government the con-
sideration that the present disturbances have had their origin only in
popular passions, excited under novel circumstances of very transient
character, and that while not one person of well-balanced mind has
attempted to show that dismemberment of the Union would be perma-
nently conducire to the safety and welfare of even his own State or
section, much less of all the States and sections of our country, the people
themselves still retain and cherish a profound confidence in our happy
Constitution, together with a veneration and affection for it such as no
other form of Government ever received at the hands of those for whom
it was established.”
He suggested that the revolt, should it break up the
Union, "might tend by its influence to disturb and
unsettle the existing system of government in other
parts of the world, and arrest the progress of civilization
and improvement;" and he expressed his confidence
" that these, with other considerations, would prevent
foreign Governments from yielding to solicitations to
intervene în any unfriendly way in the domestic con-
cerns of the country.'
On this despatch, when communicated to him, Lord
Russell repeated in substance what he had said before.
i Lord J. Russell to Lord Lyons, 22nd March, 1861.
2 Mr. Seward to United States' Ministers abroad, 9th March, 1861.
FEARS OF AMERICAN GOVERNMENT.
125
The Government regretted the secession, and was “in Chap. VI.
no hurry to recognize the separation as complete and
final ;" but it was impossible to tell “how and when
circumstances might arise which would make a decision
necessary. On that subject, therefore, he thought it
well to decline further discussion at the time.]
The American Government appears to have been
extremely apprehensive at this time lest the revolted
States should succeed in obtaining from foreign Powers
a recognition of their independence. The elaborate
series of separate instructions composed by Mr. Seward
for its diplomatic agents in Europe-instructions in
which no pains were spared to shape the argument
according to the interests or sentiments which he sup-
posed most likely to influence each individual Court
were evidently dictated by this apprehension. And,
had the United States forborne altogether to attempt
1 8th April, 1861. This reply, as reported by Mr. Dallas, was com-
plained of by the American Government as “ abrupt and reserved,” and
seeming to imply that under some circumstances, not explained, a
recognition might be made." In a subsequent conversation, on the
18th May, Lord Russell gave a somewhat fuller explanation of his
meaning, and this was accepted as satisfactory, and may be stated here
in his own words :-
I repeated to Mr. Adams what I had said to Mr. Dallas : that, had
a separation taken place between different parts of the American Union
in an amicable manner, Her Majesty's Government would still have
regretted that a Union of States so famous and so conspicuous for its
love of liberty and enlightened progress should have been dissolved.
That the opposition made by the Government of the United States to the
secession would make us still more averse to take any step to record
and recognize that secession. I explained to Mr. Adams, however, that
the despatches of Judge Black and Mr. Seward seemed to ask on our
part for a perpetual pledge that we would, under no circumstances,
recognize the seceding States<I had, therefore, thought it necessary to
add that Great Britain must hold herself free to act according to the
progress of events and as circumstances might require.">
2 Mr. Seward to Mr. Adams, 10th April, 1861; to Mr. Dayton;
22nd April; to Mr. Burlingame, 13th April ; to Mr. Judd, 22nd March;
to Mr. Sanford, 26th March ; to Mr. Schurz, 27th April; to Mr. Clay,
6th May ; to Mr. Wood, 1st May; to Mr. Marsh, 9th May; to Mr. Foggi
16th May; to Mr. Pike, 16th May.
126
ATTITUDE OF EUROPEAN POWERS.
Chap. VI. the re-conquest of the seceders, it would certainly have
been realized sooner or later. Recognition would then
have become a matter of course, after the lapse of a
reasonable time. The mere assertion of a claim on the
part of the United States, however energetic or per-
sistent, could only delay this, and could not have
prevented it in the long run. But the idea of recog-
nizing them immediately, before their independence
had been firmly established, does not appear to have
been entertained by any European Government. Lord
Russell's answers to Mr. Dallas were brief and extremely
cautious, but there is no doubt that they were perfectly
conformable to the principles which in America, no less
than in England, have been held to govern these
questions, and that no answer substantially differing
from them would have been consistent with those
principles. It was certain at this time that the Con-
1 Such answers as the following would not, I presume, be expected
by America from England, as they would not be expected by England
from America :-
Russia," from the principle of unrelenting opposition to all revolu-
tionary movements, would be the last to recognize any de facto Govern-
ment of the disaffected States of the American Union.”-Mr. Wright to
Mr. Seward, 8th May, 1861.
Austria 65
was not inclined to recognize de facto Governments any.
where."--Mr. Jones to Mr. Seward, 15th April, 1861.
Spain “ would have nothing to do with the rebel party in the United
States in any sense."--Mr. Perry to Mr. Seward, 13th June, 1861.
M. Thourenel's answer was substantially the same as Lord Kussell's:-
“ M. Thouvenel, in reply, said that no application had yet been made
to him by the Confederated States, in any form, for the recognition of
their independence; that the French Government was not in the habit
of acting hastily upon such questions, as might be seen by its tardiness
in recognizing the new Kingdom of Italy; that he believed the main-
tenance of the Federal Union, in its integrity, was to be desired for the
benefit of the people North and South, as well as for the interests of
France; and the Government of the United States might rest well
assured that no hasty or precipitate action would be taken on that
subject by the Emperor. But whilst he gave utterance to these views,
he was equally bound to say that the practice and usage of the present
century had fully established the right of de facto Governments to
recognition when a proper case was made out for the decision of
OUTBREAK OF THE WAR.
127
federate States possessed a political organization which Chap. VI.
would have qualified them for a place among independent
nations. It was not certain whether, if a serious effort
were made to subdue them, they could maintain their
independence. It was uncertain, also, whether such an
attempt would be made.
On this latter head all doubt was at an end when the
news reached Europe that civil war had begun. The
path to be pursued by the European Powers was now
clear; their duty was to wait till the contest should be
decided, and to stand scrupulously neutral in the mean-
time. At every Court in Europe the United States had
asked for neutrality--only neutrality; and an impartial
neutrality was the course dictated by the highest con-
siderations of expediency, as well as by the lowest and
most palpable. The question what was to be the future
of the American Commonwealth, momentous as it might
be for Europe, was an American question, which ought
to be fought out—if fought out it must be in America
and by Americans alone.
On the 30th April the British Government received
from Lord Lyons information of the bombardment of
Fort Sumter, and of President Lincoln's call for 75,000
men. A telegram, announcing that Mr. Davis had
1
foreign Powers. Here the official interview ended."'--Mr. Faulkner to
Mr. Seward, 15th April, 1861.
“ The President neither expects nor desires any intervention, or
even any favour, from the Gorernment of France, or any other, in this
emergency. Whatever else he may consent to do, he will never invoke,
uor even admit, foreign interference or influence in this or any other
controversy in which the Government of the United States may be
engaged with any portion of the American people. It has been simply
his aim to show that the present controversy furnishes no one ground
on which a great and friendly Power, like France, can justly lend aid
or sympathy to the party engaged in insurrection; and therefore he
instructs you to insist on the practice of neutrality by the Government
of the Emperor, as all our Representatives are instructed to insist on
the neutrality of the several Powers to which they are accredited.”
Mr. Seward to Mr. Dayton, 22nd April, 1861.
128
EFFECT OF THE NEWS.
Chap. VI. taken measures for issuing letters of marque, arrived at
the same time as Lord Lyons's despatch. Two days
afterwards intelligence of the Proclamation of blockade
reached London : the fact was mentioned in the House
of Commons on the evening of the 2nd May; on the
3rd the substance of the Proclamation was published
in the English newspapers; and on the 5th a copy of
it was received from Her Majesty's Consul at New
York. A second copy, transmitted by Lord Lyons,
reached Downing Street on the 10th, having been
delayed by the disturbed condition of Maryland, where
a secessionist rising had cut off, on the night of the
19th April, and for several days afterwards, all com-
munication between Washington and the North. Lord
Lyons inclosed in the same despatch a copy of Mr. Davis's
notification, issued on the 17th April. On the 11th May
the Proclamation of blockade was officially communi-
cated to Earl Russell by Mr. Dallas. He at the same
time placed in Lord Russell's hands a copy of a circular,
dated 20th April, which had been addressed by Mr. Seward
to the Ministers of the United States at foreign Courts, and
in which the Secretary of State referred to the proba-
bility that attempts would be made to fit out privateers
in England against American commerce.
On the first publication of this intelligence, merchants,
ship-owners, and insurers took the alarm./The Atlantic
is threaded by many well-known highways, intersecting
one another in all directions, over which the commerce
of America, the West Indies, and Brazil passes to and
fro. British ships throng these highways. In many of
the Southern ports there was a large amount of British
property; the cargoes in the Mississippi alone at the end
of May were computed to be worth a million sterling,
and the greater part of these had been shipped for Liver-
pool.
Owners of British shipping look, and have a
1 Mr. Seward (to Lord Stanley, 12th January, 1867) is severe upon
the unlucky persons whose property was thus placed in jeopardy. He
UNEASINESS IN ENGLAND.
129
$
right to look, for protection to the British squadrons Chap. VI.
stationed in various parts of the world ; and it is the
duty of the British Government to keep the commanding
officers of those squadrons properly instructed as to the
cases in which protection should be afforded. Three or
four weeks must elapse before instructions, even if sent
out immediately, could reach the towns on the Southern
coast, the Bahamas, and the British West Indies, to say
nothing of the more remote dependencies of the Crown,
or of commerce scattered over more distant seas. But
what had occurred ? A blockade had been proclaimed,
extending over a coast line of some 3,000 miles. etters
of marque had been publicly offered an invitation very
tempting to the adventurous and reckless' men who are
always to be found in every maritime nation. Both the
Government of the United States and the de facto
Government of the Confederacy had assumed, and were
actually exercising on the high seas, the rights of war;
and the neutral who resists the enforcement of those
rights does so under the penalty of capture. Branches
of trade perfectly lawful before might now be treated as
unlawful, and punished by seizure and confiscation.
Mr. Lincoln's administration had sent agents to England
to purchase arms; Mr. Davis's would certainly resort,
seems, indeed, to be rather angry with them. “Lord Stanley says that
Her Majesty's Government had to provide at a distance for the losses
and interests of British subjects in or near the seat of war. But who
required British subjects to be there? Who obliged them to remain in a
place of danger ? If they persisted in remaining there, had they not all
the protection the citizens of the United States enjoyed ? Were they
entitled to more ?” Who required them to be there ? Who obliged
them to remain there? Why, they were there when the war broke out,
in the pursuit of their legitimate trade, which was just as much for the
advantage of America as for that of Great Britain. What protection
citizens of the United States enjoyed in May, 1861, at Richmond,
Charleston, and New Orleans, I do not know. But it is certain that
British subjects and property were not, on the outbreak of the war,
treated by the Government of the United States and its officers as upon
the same footing with American subjects and property; they were treated
as neutrals and neutral property are treated in war.
K
130
REASONS FOR DECLARATION.
Chap. VI. if it had not already resorted, to the same market. This
was the state of facts existing during the first week of
May, so far as they were known to the English public;
and on these facts the Government was called upon,
both by the mercantile community and by some of the
warmest partisans of the Northern cause, to define its
position, to recognize or repudiate the blockade, to
accept or reject the character of a neutral Power, and to
publish its decision as widely and as speedily as pos-
sible. No request could have been more natural or
more reasonable.
1 In the House of Commons, on the 2nd May, Earl Russell (then
Lord John Russell), answering a question put by Mr. Ewart, said: “ 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 Govern-
ment 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.”
On the 9th May, “Mr. W. E. Forster said : He wished to ask the
Secretary of State for the Home Department whether it is not a criminal
offence against the provisions of the Foreign Enlistment Act for any
subject of Her Majesty to serve on board of any privateer licensed by
the person assuming, as President of the Southern Confederacy, to
exercise power over a part of the United States, or for any person within
Her Majesty's dominions to assist in the equipment of such privateer;
and, if so, whether he will take measures to prevent the infringement of
the law, either by Her Majesty's subjects or by any agents of the
Southern Confederacy who are now in England; and also whether any
such privateer equipped in a port of Her Majesty's dominions will not be
liable to forfeiture ?
“ Sir George Lewis: Sir, it is in the contemplation of Her Majesty's
Government to issue a Proclamation for the purpose of cautioning all
Her Majesty's subjects against any interference in the hostilities between
the Northern and Southern States of America. In that Proclamation
the general effect of the Common and Statute Law on the matter will be
stated. The general principle of our law is, that no British subject shall
enter into the service of any foreign Prince or Power, or engage in
any
hostilities that may be carried on between two foreign States. With
respect to the precise effect of the Foreign Enlistment Act in the case
supposed, it would not be proper for me to undertake to lay it 'down,
inasmuch as the construction of any Statute is matter for judicial decision
rather than for any opinion of my own. The general bearing of the law
PROCLAMATION OF NEUTRALITY.
131
On the 1st May directions were given for the rein- Chap. VI.
forcement of the squadron on the North American and
West Indian stations, “so that the Admiral in com-
mand may be able duly to provide for the protection
of British shipping in any emergency that may occur."1
On the 6th, after consultation with the Law Officers,
the Government came to the conclusion that, upon the
principles recognized both by Great Britain and by
America, the revolted States must be regarded as a
belligerent party in the war now known to have begun.
will, however, as I have said, be set forth in the Proclamation.'
Hansard's Parliamentary Debates (Third Series), vol. clxii, pp. 1373
and 1763.
The reasons which make it important that a neutral Governmey
should lose no time in issuing instructions to its officers, and informatio
to its subjects, are stated by Mr. Dana :--
“ 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 tbis
contest are far different. In such a state of things, the liability to
political complications, and the questions of right and duty to be de-
cided 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.
“ Now, all private citizens of a foreign State, and all its executive
officers and judicial magistrates, look to the political departenent 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.”—Dana's Wheaton, p. 135, Note.
1 Lord J. Russell to the Lords Commissioners of the Admiralty,
1st May, 1861.
K 2
132
THE QUEEN'S PROCLAMATION.
Chap. VI. On the 13th, the Royal Sign-manual was affixed to a
Proclamation of Neutrality, which was published in the
London Gazette on the following day. Copies were sent
on the 15th to Lord Lyons and to the British Consuls
at American ports, “with instructions to exhibit the
same in their respective Consular offices, and to take
suitable steps for making known the purport of the same
to Her Majesty's subjects residing or entering within
their jurisdiction, taking care, however, to do so in the
manner best calculated to avoid wounding the suscep-
tibilities of the authorities or people of the places where
they reside.” 1
The tenor of the Proclamation was as follows:-It
gan by taking notice that “hostilities had unhappily
commenced between the Government of the United
States of America and certain States styling themselves
the Confederate States of America," announced the
Queen's determination “to maintain a strict and im-
partial neutrality in the contest between the said con-
tending parties," and commanded her subjects to observe
a like neutrality. It recited at length various prohibi-
tions of British criminal law contained in the Foreign
Enlistment Act (59 Geo. III, c. 69), enjoined obedience
to these prohibitions, and concluded by a warning,
addressed to all Her Majesty's subjects, that, should
they infringe the law of nations by any violation of
neutral duties, they would incur under that law penal
consequences against which they would receive no pro-
tection from the Crown. The substantial part of it was
the public declaration that, in the judgment of the
Executive, a state of war existed, with all those inci-
dents which are attached to a state of war by the law
of nations. In other respects, it operated only as a
warning. It imposed on the subjects of the Crown no
legal liabilities from which they would otherwise have
1 Lord J. Russell to Lord Lyons, 15th May, 1861.
!
REGULATIONS AS TO PRIZES.
133
been free, nor did it, as I think, relieve them from any Chap. VI.
to which they would otherwise have been subject.
This Proclamation was followed on the 1st June
by Orders interdicting the armed ships and privateers
of both belligerents from carrying prizes made by
them into the ports, harbours, roadsteads, or waters
of the United Kingdom, or of any of Her Majesty's
Colonies or possessions abroad. The prohibition was, as
must have been foreseen, disadvantageous solely to the
Confederate States, whose cruisers, after the blockade
had been made effective, were shut out from taking
their prizes into any port of their own. They were
deprived in consequence not only of the value of such
ships and cargoes as they could capture, but of what
was far more important--the stimulus which the hope
of prize-money lends to maritime war, and which was
ill-supplied by vague promises that the value of prizes
taken and destroyed should be paid to the captors
when the war was at an end. The Orders drew, there-
fore, earnest but ineffectual expostulations from the
agents of the Confederate Government in London; and
Mr. Seward, when it was communicated to him, re-
marked that "it would probably prove a death-blow to
Southern privateering.
The Southern Confederacy
seem, in fact, to have had few or no privateers after
the first year of the war; and the officers and crews who
served in its scanty marine had no inducements to
animate them beyond zeal for their cause, love of
adventure, and their pay.3
Regulations of this kind are not governed by any
1 For the Proclamation itself see the Note at the end of this Chapter.
It was framed on the general model of that issued in 1859 on the com-
mencement of the war between Austria and France and Sardinia; and
the same model was afterwards employed in the wars between Spain and
Chili, 1866, and between Austria and Prussia in the same year.
% Lord Lyons to Lord J. Russell, 17th June, 1861.
3 For these Orders, and the Orders and Instructions issued subse-
quently during the war, see the Note at the end of this Chapter,
134
NOTIFICATIONS OF OTHER POWERS.
Chap. VI. general law. They are entirely discretionary. A neutral
Government may admit into its ports or exclude from
them (unless in case of stress of weather) both the public
ships and privateers of the belligerent powers, or may
admit the former and exclude the latter. It may suffer
prizes to be brought in and sold, or to be brought in
but not sold, or not to be brought in at all. In laying
down these rules, the neutral regards his own con-
venience, and is guided by his own judgment; and, so
long as they are applied indifferently to both belli-
gerents, neither has a right to complain of them on the
ground that they are practically more disadvantageous to
himself than to his enemy. The incidence of a rule can
never indeed be exactly even unless the circumstances
of the belligerents are exactly the same. The neutral is
not to blame for this inequality, nor is he under any
obligation to provide against it. These are settled
maxims of international law.
The reasons which had actuated the British Govern-
ment operated also, though not so forcibly or so im-
mediately, on other European Powers. The French
Emperor, on the 10th June, issued a Declaration which,
if compared with the British Proclamation, will be found
to differ little from it in substance. The former is in
one respect a little more indulgent than the latter, since
it permits prizes to be brought into French ports,
though it does not allow them to be sold there.
Declarations or notifications were subsequently issued
by the Governments of Belgium, the Netherlands, Spain,
Russia, Prussia, Portugal, Bremen, and Hamburg. The
existence of a state of war, and of the rights with which
it arms both belligerents alike, was thus formally recog-
nized by the maritime Powers.
DECLARATIONS OF NEUTRAL POWERS.
135
Chap. VỊ.
NOTE.
Proclamations, Orders, and Notifications issued by the Government of
Great Britain and other Neutral Powers during the Civil War.
Note.
THE
I. PROCLAMATION, ORDERS, AND NOTIFICATIONS ISSUED BY
GOVERNMENT OF GREAT BRITAIN.
1. The Queen's Proclamation of Neutrality :
- Victoria R.
“Whereas we are happily at peace with all Sovereigns, Powers, and
States.
"And whereas hostilities have unhappily commenced between the
Government of the United States of America and certain States styling
themselves the Confederate States of America.
“ And whereas we, being at peace with the Government of the
United States, have declared our Royal determination to maintain a strict
and impartial neutrality in the contest between the said contending parties.
“ We therefore have thought fit, by and with the advice of our Privy
Council, to issue this our Royal Proclamation.
“And we do hereby strictly charge and command all our loving sub-
jects to observe a strict neutrality in and during the aforesaid hostilities,
and to abstain from violating or contravening either the laws and statutes
of the realm in this behalf, or the law of nations in relation thereto, as
they will answer to the contrary at their peril.
“And whereas in and by a certain Statute made and passed in the
59th year of His Majesty King George III, intituled 'An Act to pre-
vent enlisting or engagement of His Majesty's subjects to serve in a
foreign service, and the fitting out or equipping, in His Majesty's
dominions, vessels for warlike purposes, without His Majesty's licence,
it is amongst other things declared and enacted as follows:
“. That if any natural-born subject of His Majesty, &c. (2nd Clause
of the Foreign Enlistment Act').
And it is in and by the said Act further enacted,
" That if any person within any part of the United Kingdom, &c.
(7th Clause of the Foreign Enlistment Act').
And it is in and by the said Act further enacted,-
. That if any person in any part of the United Kingdom, &c. (8th
Clause of the Foreign Enlistment Act').
“Now, in order that none of our subjects may unwarily render them-
selves liable to the penalties imposed by the said Statute, we do hereby
strictly command, that no person or persons whatsoever đo commit any
act, matter, or thing whatsoever, contrary to the provisions of the said
Statute, upon pain of the several penalties by the said Statute imposed,
and of our high displeasure.
“ And we do hereby further warn all our loving subjects, and all
persons whatsoever entitled to our protection, that if any of them shall
presume, in contempt of this our Royal Proclamation, and of our high
displeasure, to do any acts in derogation of their duty, as subjects of a
neutral Sovereign in the said contest, or in violation or contravention of
136
DECLARATIONS OF NEUTRAL POWERS.
Chap. VI. the law of nations in that behalf; as for example, and more especially,
by entering into the military service of either of the said contending
Note.
parties as commissioned or non-commissioned officers or soldiers; or by
serving as officers, sailors, or marines on board any ship or vessel of war
or transport of or in the service of either of the said contending parties;
or by serving as officers, sailors, or marives on board any privateer bear-
ing letters of marque of or from either of the said contending parties;
or by engaging to go or going to any place beyond the seas with intent
to enlist or engage in any such service, or by procuring or attempting to
procure, within Her Majesty's dominions at home or abroad, others to do
80 ; or by fitting out, arming, or equipping any ship or vessel to be
employed as a ship of war or privateer or transport by either of the said
contending parties, or by breaking or endeavouring to break any block-
ade lawfully and actually established by or on behalf of either of the
said contending parties; or by carrying officers, soldiers, despatches,
arms, military stores, or materials, or any article or articles considered
and deemed to be contraband of war, according to the law of modern
usage of nations, for the use or service of either of the said contending
parties, all persons so offending will incur and be liable to the sever
penalties and penal consequences by the said Statute or by the law of
dations in that behalf imposed or denounced.
“And we do hereby declare, that all our subjects, and persons
entitled to our protection, who may misconduct themselves in the pre-
mises, will do so at their peril and of their own wrong, and that they
will in nowise obtain any protection from us against any liabilities or
penal consequences, but will, on the contrary, incur our high displeasure
by such misconduct.
“Given at our Court at the White Lodge, Richmond Park, this 13th
day of May, in the year of our Lord 1861, and in the 24th of our
reign.”
2. Order interdicting Cruisers and Privateers of the United States,
and of the so-styled Confederate States, from carrying Prizes into British
Ports:
Letter to the Admiralty.
L" My Lords,
“Foreign Office, June 1, 1861.
“ Her Majesty's Government are, as you are aware, desirous of
observing the strictest neutrality in the contest which appears to be
imminent between the United States and the so-styled Confederate States
of North America ; and with the view more effectually to carry out this
principle they propose to interdict the armed ships, and also the priva-
teers, of both parties, from carrying prizes made by them into the ports,
barbours, roadsteads, or waters of the United Kingdom, or of any of
Her Majesty's Colonies or possessions abroad.
I have accordingly to acquaint your Lordships that the Queen has
been pleased to direct, that orders in conformity with the principles
above stated should forthwith be addressed to all proper authorities in
the United Kingdom and to Her Majesty's naval or other authorities in
DECLARATIONS OF NEUTRAL POWERS.
137
all quarters beyond the United Kingdom, for their guidance in the Chap. VI.
circumstances.
Note.
“I have, &c.
(Signed) " J. RUSSELL,
“The Lords Commissioners of the Admiralty."
A similar letter was addressed on the same day to each of the
Secretaries of State for India, War, and the Colonies.
3. Circular Despatch to Colonial Governors respecting Treatment of
Confederate and other Ships in British Ports:-
Sir,
"Downing Street, November 15, 1861.
‘Having had occasion to consult the Law Officers of the Crown on
the subject of remonstrances addressed to the Governors of some of the
Colonies by Consuls of the United States, in regard to certain particulars
in the treatment of vessels bearing the flag of the States which have
seceded from the Union, I think it right to communicate to you, for your
information and guidance, the principles which ought to be observed in
cases of the kind which raised the present question.
Los you will understand, therefore, that no foreign Consul has any
power or jurisdiction to seize any vessel (under whatever flag) within
British territorial waters, and that the British authorities ought not to
take any steps adverse to merchant vessels of the Confederate States, or
to interfere with their free resort to British ports.
“With respect to supplies, even of articles clearly contraband of
war' (such as arms or ammunition), to the vessels of either party, the
Colonial authorities are not at liberty to interfere, unless anything should
be done in violation of the Foreign Enlistment Act, 59 Geo. III, cap. 69,
which prohibits the equipping, furnishing, fitting out, and arming of
ships or vessels for the service of foreign belligerent Powers, and also the
supply of guns or equipments for war, so as to increase the warlike force
of vessels of war, but which does not render illegal the mere supply of
arms or ammunition, &c., to private ships or vessels.
If it should be necessary for the Colonial authorities to act in any
such case, it should only be done when the law is regularly put in force,
and under the advice of the Law Officers of the Crown.
“ With respect to the supplying in British jurisdiction of articles
ancipitis usus (such, for instance, as coal), there is no ground for any
interference whatever.on the part of the Colonial authorities.
“I have, &c.
(Signed)
" NEWCASTLE.”
4. Regulations respecting Belligerent Ships in British Ports:-
Letter to the Admiralty.
My Lords,
Foreign Ofice, January 31, 1862.
“ Her Majesty being fully determined to observe the duties of
neutrality during the existing hostilities between the United States and
the States calling themselves the Confederate States of America, and
138
DECLARATIONS OF NEUTRAL POWERS.
.
{
1
Chap. VI. being, moreover, resolved to prevent, as far as possible, the use of Her
Majesty's harbours, ports, and coasts, and the waters within Her
Note.
Majesty's territorial jurisdiction, in aid of the warlike purposes of either
belligerent, has commanded me to communicate to your Lordships, for
your guidance, the following rules, which are to be treated and enforced
as Her Majesty's Orders and Directions.
“Her Majesty is pleased further to command that these rules shall be
put in force in the United Kingdom and in the Channel Islands on and
after Thursday the 6th day of February next, and in Her Majesty's
territories and possessions beyond the seas, six days after the day when
the Governor or other chief authority of each of such territories or
possessions respectively shall have notified and published the same,
stating in such notification that the said rules are to be obeyed by all
persons within the same territories and possessions.
“ I. During the continuance of the present hostilities between the
Government of the United States of North America and the States
calling themselves “the Confederate States of America,' or until Her
Majesty shall otherwise order, no ship of war or privateer belonging to
either of the belligerents shall be permitted to enter or remain in the
port of Nassau, or in any other port, roadstead, or waters of the Bahama
Islands, except by special leave of the Lieutenant-Governor of the
Babama Islands, or in case of stress of weather.
If any such vessel
should enter any such port, roadstead, or waters, by special leave, or
under stress of weather, the authorities of the place shall require her to
put to sea as soon as possible, without permitting her to take in any
supplies beyond what may be necessary for her immediate use.
“If, at the time when this order is first notified in the Bahama
Islands, there shall be any such vessel already within any port, roadstead,
or waters of those islands, the Lieutenant-Governor shall give notice to
such vessel to depart, and shall require her to put to sea, within such
time as he shall, under the circumstances, consider proper and reason-
able. If there then shall be ships of war or privateers belonging to
both the said belligerents within the territorial jurisdiction of Her
Majesty, in or near the same port, roadstead, or waters, the Lieutenant-
Governor shall fix the order of time in which such vessels shall depart.
No such vessel of either belligerent shall be permitted to put to sea until
after the expiration of at least twenty-four hours from the time when the
last preceding vessel of the other belligerent (whether the same shall be a
ship of war, or privateer, or merchant-ship), which shall have left the same
port, roadstead, or waters, or waters adjacent thereto, shall have passed
beyond the territorial jurisdiction of Her Majesty.
“II. During the continuance of the present hostilities between the
Government of the United States of North America and the States
calling themselves the Confederate States of America,' all ships of war
and privateers of either belligerent are prohibited from making use of
any port or roadstead in the United Kingdom of Great Britain and
Ireland, or in the Channel islands, or in any of Her Majesty's Colonies or
foreign possessions or dependencies, or of any waters subject to the terri-
DECLARATIONS OF NEUTRAL POWERS.
139
torial jurisdiction of the British Crown, as a station or place of resort for Chap. VI.
any warlike purpose or for the purposes of obtaining any facilities of war-
like equipment; and no ship of war or privateer of either belligerent
Note.
shall hereafter be permitted to sail out of or leave any port, roadstead,
or waters, subject to British jurisdiction, from which any vessel of the
other belligerent (whether the same shall be a ship of war, a privateer,
or a merchant-ship), shall have previously departed, until after the expira-
tion of at least twenty-four hours from the departure of such last-men-
tioned vessel beyond the territorial jurisdiction of Her Majesty.
“III. If any ship of war or privateer of either belligerent shall, after
the time when this order shall be first notified and put in force in the
United Kingdom and in the Channel Islands, and in the several Colonies
and foreign possessions and dependencies of Her Majesty respectively,
enter any port, roadstead, or waters belonging to Her Majesty, either in
the United Kingdom or in the Channel Islands or in any of Her Majesty's
Colonies or foreign possessions or dependencies, such vessel shall be
required to depart and to put to sea within twenty-four hours after her
entrance into such port, roadstead, or waters, except in case of stress of
weather, or of her requiring provisions or things necessary for the sub-
sistence of her crew or repairs; in either of which cases the authorities
of the port, or of the nearest port (as the case may be), shall require her
to put to sea as soon as possible after the expiration of such period of
twenty-four hours, without permitting her to take in supplies, beyond
what may be necessary for her immediate use; and no such vessel, which
may have been allowed to remain within British waters for the purpose of
repair, shall continue in any such port, roadstead, or waters for a longer
period than twenty-four hours after the necessary repairs shall have been
completed : Provided, nevertheless, that in all cases in which there shall
be any vessels (whether ships of war, privateers, or merchant-ships), of
both the said belligerent parties in the same port, roadstead, or waters
within the territorial jurisdiction of Her Majesty, there shall be an
interval of not less than twenty-four hours between the departure there-
from of any such vessel (whether a ship of war, a privateer, or a mer-
chant-ship), of the one belligerent, and the subsequent departure
therefrom of any ship of war or privateer of the other belligerent; and
the times hereby limited for the departure of such ships of war and
privateers respectively shall always, in case of necessity, be extended,
so far as may be requisite for giving effect to this proviso, but not
further or otherwise.
“ IV. No ship of war or privateer of either belligerent shall hereafter
be permitted, while in any port, roadstead, or waters subject to the
territorial jurisdiction of Her Majesty, to take in any supplies, except
provisions and such other things as may be requisite for the subsistence
of her crew; and except so much coal only as may be sufficient to carry
such vessel to the nearest port of her own country, or to some nearer
destination ; and no coal shall be again supplied to any such ship of war
or privateer, in the same or any other port, roadstead, or waters subject
to the territorial jurisdiction of Her Majesty, without special permission,
140
DECLARATIONS OF NEUTRAL POWERS.
Chap. VI. until after the expiration of three months from the time when such coal
may been last supplied to her within British waters as aforesaid.
Note.
66 I have, &c.
(Signed) “ J. RUSSELL."
A similar letter was addressed to the Secretaries of State for the Home,
Colonial, War, and India Departments, and to the Lords Commissioners
of Her Majesty's Treasury.
5. Despatch to the Governor of the Bahamas respecting belligerent
ships desiring to enter the Ports of those Islands :
Sir,
Downing Street, October 6, 1863.
"Doubts having been expressed as to whether, under the Regulations
of the 31st January, 1862, which were embodied in a Proclamation
issued by you on the 11th March following, it is required that the Com-
mander of a belligerent ship of war or privateer should obtain the
permission of the local authorities before entering the ports, roadsteads,
or waters of the Bahamas out-islands, when the Governor is not there
present, I am to acquaint you that Earl Russell has taken Her Majesty's
pleasure thereupon, and you are to understand that at the ports of the
out-islands, as at Nassau, the special leave of the Governor himself is
required (unless in stress of weather) by any belligerent vessel desiring
to enter, with this exception only, that in cases of grave emergency and
real necessity and distress, such as a sailing-vessel being dismasted, or
accident happening to the machinery of a steam-vessel, the vessel may
enter the ports, roadsteads, or waters on obtaining leave from a resident
officer, to whom the Governor shall have delegated his authority in that
behalf.
“ With a view to give effect to Her Majesty's intentions, you will be
pleased to convey to the officers in the out-islands to whom it
may
best
be confided the authority in question, taking care to communicate to
them copies of the Regulations of the 31st January, 1862, and calling
their especial attention to the limits of the authority delegated, and to
that clause of the Regulations of 31st January, 1862, in which it is
directed that vessels entering under stress of weather, or by special leave,
shall be required to put to sea as soon as possible.
“I hare, &c.
(Signed)
" NEWCASTLE.
“ Governor Bayley, C.B., &c."
6. Circular Instructions to Governors of Colonies respecting the
Treatment of Prizes Captured by Federal or Confederate Cruisers if
brought into British Waters:
“Sir,
Downing Street, 2nd June, 1864.
I think it well to communicate to you the decisions at which Her
Majesty's Government have arrived on certain questions which have
DECLARATIONS OF NEUTRAL POWERS.
141
arisen respecting the treatment of prizes captured by Federal or Con- Chap. VI.
federate cruisers if brought into British waters.
Note.
"1. If any prize captured by a ship of war of either of the belligerent
powers shall be brought by the captors within Her Majesty's jurisdiction,
notice shall be given by the Governor to the captors immediately to
depart and remove such prize.
62. A vessel which shall have been actually and bond fide converted
into, and used as, a public vessel of war, shall not be deemed to be a
prize within the meaning of these rules.
“ 3. If any prize shall be brought within Her Majesty's jurisdiction,
through mere stress of weather, or other extreme and unavoidable
necessity, the Governor may allow for her removal such time as he may
consider to be necessary.
64. If any prize shall not be removed at the time prescribed to the
captors by the Governor, the Governor may detain such prize until Her
Majesty's pleasure shall be made known.
** 5. If any prize shall have been captured by any violation of the
territory or territorial waters of Her Majesty, the Governor may detain
such prize until her Majesty's pleasure shall he made known,
“ Her Majesty's Government have not thought it necessary to make
any additions to the Instructions already given with respect to cargoes,
viz., that Her Majesty's Orders apply as much to prize cargoes of every
kind which may be brought by any armed ships or privateers of either
belligerent into British waters as to the captured vessels themselves.
They do not, however, apply to any articles which may have formed part
of any such cargoes if brought within British jurisdiction, not by armed
ships or privateers of either belligerent, but by other persons who may
have acquired or may claim property in them by reason of any dealings
with the captors.
“ These rules are for the guidance of the Executive authority and
are not intended to interfere in any way with the process of any court
of justice.
“I have, &c.
(Signed) “ EDWARD CARDWELL.
7. Order prohibiting Belligerent Ships from being brought into British
Ports for the purpose of being disınantled or sold :-
“Foreign Office, September 8, 1864.
" It is hereby notified that Her Majesty has been pleased to order
that for the future no ships of war belonging to either of the belligerent
powers of North America shall be allowed to enter, or to remain, or be,
in any of Her Majesty's ports for the purpose of being dismantled or
sold; and Her Majesty has been pleased to give directions to the Com-
missioners of Her Majesty's Customs, and to the Gorernors of Her
Majesty's Colonies and foreign possessions, to see that this order is
properly carried into effect.”
142
DECLARATIONS OF NEUTRAL POWERS.
Chap. VI.
8. Instructions issued at the End of the War:
Note.
܂ܕ
Letters to the Admiralty.
“My Lords,
“Foreign Office, May 11, 1865.
“I have the honour to acquaint you that, in the existing state of the
civil war in America, and the uncertainty which may be felt as to its
continuance, it appears to Her Majesty's Government that the time has
arrived for ceasing to enforce so much of the Orders which, in pursuance
of
ту Letter of the 31st of January, 1862, were issued by the several
departments of Her Majesty's Government, as empowered the authorities
of any port belonging to Her Majesty, either in the United Kingdom or
the Channel Islands, or in any of Her Majesty's Colonies or foreign
possessions or dependencies, to require any ship of war or privateer of
either belligerent which might enter any port, roadstead, or waters
belonging to Her Majesty, in order to obtain provisions or things neces-
sary for the subsistence of her crew, or to effect repairs, to put to sea as
soon as possible after the expiration of a period of twenty-four hours,
without permitting her to take in supplies beyond what might be neces-
sary for her immediate use; and not to suffer any such vessel as might
have been allowed to remain within British waters for the purpose of
repair to continue in any port, roadstead, or waters belonging to Her
Majesty for a longer period than twenty-four hours after her necessary
repairs should have been completed; and also so much of the same orders
as limited the quantity of coal and the period within which it might be
obtained, to be embarked on board any such ship of war or privateer of
either belligerent.
66 I have addressed a similar letter to the Secretaries of State for the
Home, Colonial, War, and India Departments and to the Lords Commis-
sioners of Her Majesty's Treasury.
“I have, &c.
(Signed) 66 RUSSELL."
"My Lords,
Foreign Office, June 2, 1865.
“I have the honour to state to your Lordships that, since the date of
my letter of the 11th ultimo, intelligence has reached this country that
the late President of the so-called Confederate States has been captured
by the military forces of the United States, and has been transported as
a prisoner to Fort Monroe, and that the armies hitherto kept in the
field by the Confederate States have for the most part surrendered or
dispersed.
“ In this posture of affairs Her Majesty's Government are of opinion
that neutral nations cannot but consider the civil war in North America
as at an end.
“ In conformity with this opinion Her Majesty's Government recog-
nize that peace has been restored within the whole territory of which the
United States of North America before the commencement of the civil
war were in undisturbed possession.
DECLARATIONS OF NEUTRAL POWERS.
143
“ As a necessary consequence of such recognition on the part of Her Chap. VI.
Majesty's Government, Her Majesty's several authorities in all ports,
Note.
harbours, and waters belonging to Her Majesty, whether in the United
Kingdom or beyond the seas, must henceforth refuse permission to any
vessel of war carrying a Confederate flag to enter any such ports, har-
bours, and waters; and must require any Confederate vessels of war
which, at the time when these orders reach Her Majesty's authorities in
such ports, harbours, and waters, may have already entered therein on
the faith of Proclamations heretofore issued by Her Majesty, and which,
having complied with the provisions of such Proclamations, may be
actually within such ports, harbours, and waters, forthwith to depart
from them.
“ But Her Majesty's Government consider that a due regard for
national good faith and honour requires that Her Majesty's authorities
should be instructed, as regards any such Confederate vessels so departing,
that they should have the benefit of the prohibition heretofore enforced
against pursuit of them within twenty-four hours by a cruiser of the
United States lying at the time within any such ports, harbours, and
waters, and that such prohibition should be then and for the last time
maintained in their favour.
“ If, howerer, the Commander of any Confederate vessel of war which
may be found in any port, harbour, or waters of Her Majesty's dominions
at the time these new orders are received by Her Majesty's authorities,
or may enter such port, harbour, or waters, within a month after these
new orders are received, should wish to divest his vessel of her warlike
character, and, after disarming her, to remain without a Confederate flag
within British waters, Her Majesty's authorities may allow the Com-
mander of such vessel to do so at his own risk in all respects, in which
case he should be distinctly apprised that he is to expect no further
protection from Her Majesty's Government, except such as he may be
entitled to in the ordinary course of the administration of the law in time
of peace.
“ The rule as to twenty-four hours would of course not be applicable
to the case of such vessel.
“ I have addressed a similar letter to the Secretaries of State for the
Home, Colonial, India, and War Offices, and also to the Lords Commis-
sioners of Her Majesty's Treasury, requesting them, as I do your
Lordships, to issue instructions in conformity with the decision of Her
Majesty's Government to the several British authorities at home or abroad
who may be called upon to act in the matter.
“I ain, &c.
(Signed) " RUSSELL.
Similar letters were addressed to the Secretaries of State for the
Home, Colonial, War, and India Departments, and to the Lords Commis-
sioners of Her Majesty's Treasury,
144
DECLARATIONS OF NEUTRAL POWERS.
Chap. VI.
II. DECLARATIONS AND NOTIFICATIONS ISSUED BY OTHER NEUTRAL
POWERS.
Note.
FRANCE.
Emperor's Declaration.
“ Paris, le 10 Juin, 1861.
“Le Ministre des Affaires Etrangères a soumis à l'Empereur la
déclaration suivante, que Sa Majesté a revêtue de son approbation :-
“ Déclaration.
“Sa Majesté l’Empereur des Français, prenant en considération
l'état du paix qui existe entre la France et les Etats Unis d'Amérique, a
résolu de maiutenir une stricte neutralité dans la lutte engagée entre le
Gouvernement de l'Union et les Etats qui prétendent former une Con-
fédération particulière.
“ En conséquence, Sa Majesté, ru l’Article 14 de l'Ordonnance de la
Marine du mois d'Août, 1861, l’Article 3 de la Loi du Avril, 1825, les
Articles 84 et 85 du Code Pénal, 65 et suivants du Décret du 24 Mars,
1852, 313 et suivants du Code Pénal Maritime, et l’Article 21 du Code
Napoléon;
6 Déclare:
“1. Il ne sera permis à aucun navire de guerre ou corsaire de l'un
ou l'autre des belligérants d'entrer et de séjourner avec des prises dans
nos ports ou rades pendant plus de vingt-quatre heures, hors le cas de
relâche forcée.
“ 2. Aucune vente d'objets provenant de prises ne pourra avoir lieu
dans nos dits ports ou rades.
6 3. Il est interdit à tout Français de prendre commission de l'une
des deux parties pour armer des vaisseaux en guerre, ou d'accepter des
lettres de marque pour faire le course maritime, ou de concourir d'une
manière quelconque à l'équipement ou l'armement d'une navire de guerre
ou corsaire de l'une des deux parties.
• 4. Il est également interdit à tout Français, résidant en France ou
à l'étranger, de s'enrôler ou prendre du service, soit dans l'armée de
terre, soit à bord des bâtiments de guerre ou des corsaires de l'une ou
de l'autre des belligérants.
“5. Les Français résidant en France ou à l'étranger devront égale-
ment s'abstenir de tout fait qui, commis en violation des lois de l'empire
ou du droit des gens, pourrait être considéré comme un acte hostile
à l'une des deux parties, et contraire à la neutralité que nous avons
résolu d'observer.
" Les contrevenants aux défenses et recommandations contenues dans
la présente Déclaration seront poursuivis, s'il y a lieu, conformément aux
dispositions de la Loi du 10 Avril, 1825, et aux Articles 84 et 85 du Code
DECLARATIONS OF NEUTRAL POWERS.
145
Pénal, sans préjudice de l'application qu'il pourrait y avoir lieu de faire Chap. VI.
aux dits contrevenants des dispositions de l’Article 21 du Code Napoléon,
et des Articles 65 et suivants du Décret du 24 Mars, 1852, sur la marine
Note.
marchande, 313 et suivants du Code Penal pour l'armée de mer.
“ Sa Majesté déclare, en outre, que tout Français qui ne se sera pas
conformé aux présentes prescriptions ne pourra prétendre à aucune
protection de son Gouvernement contre les actes ou mesures, quelqu'ils
soient, que les belligérants pourraient exercer ou décréter.
o NAPOLEON,
“Le Alinistre des Affaires Etrangères,
“ E. THOUVENEL.'
PRUSSIA.
The Minister of Commerce issued the subjoined Notification to the
mercantile classes in the Baltic ports :-
(Translation.)
“ It is my duty to make known to you that during the continuance of
the conflict that has broken out among the North American States, the
mercantile classes must abstain from all enterprises which are forbidden
by the general principles of international law, and especially by the
Ordinance of the 12th of June, 1856, which has relation to the Decla-
ration of the 12th of April, 1856, upon the principles of maritime law.
Moreover, I give you especial notice that the Royal Government will
not extend to its subjects who may intermeddle in these conflicts by
taking letters of marque, sharing in privateering enterprises, carrying
merchandize contraband of war, or forwarding despatches, the benefit
of its protection against any losses which may befall them through such
transactions.
“The equipment of privateers in the ports of this country is forbidden
by the laws of the land, as is known to the mercantile community."
BELGIUM.
(Translation.)
Belgium has given its adhesion to the principles laid down in the
Declaration of the Congress of Paris of April 16, 1856. This adhesion
was published, together with the said Declaration (6th June, 1856) in the
Belgian Moniteur of June 8, 1856.
“The commercial public is notified that instructions on this subject
have been given to the judicial, maritime, and military authorities,
warning them that privateers, under whatever flag or commission, or
letters of marque, are not to be allowed to enter our ports except in case
of imminent perils of the sea. The aforesaid authorities are charged,
consequently, to keep a strict watch upon all such privateers and their
prizes, and to compel them to put to sea again as soon as practicable.
L
146
DECLARATIONS OF NEUTRAL POWERS.
Chap. VI.
Note.
“ The same authorities have been charged not to recognize the validity
of any commission or letter of marque whatsoever. All persons subject
to the laws of Belgium, who shall fit out or take any part in any
privateering expedition, will therefore expose themselves to the danger,
on the one hand, of being treated as pirates abroad, and, on the other,
to prosecution before Belgian tribunals with all the rigour of the laws."
NETHERLANDS.
" The Hague.
(Translation.)
" In obedience to the King's orders, the Ministers for Foreign Affairs,
of Justice, and of the Marine, present to the knowledge of all whom it
may concern, that to guard against probable difficulties during the
doubtful complications in the United States of North America, no
privateers under any flag, or provided with any commission or letters of
marque, or their prizes, shall be admitted into our havens or seaports,
unless in case of distress, and that requisite orders be issued that under
any circumstances such privateers and their prizes be required to go
again to sea as speedily as possible.
- The Ministers above pamed."
1
(Translation.)
“ The Hague.
“The Minister for Foreign Affairs and the Minister of Justice, by the
King's authority, warn, by these presents, all inhabitants of the Kingdom,
that during the existing disturbances in the United States of America
they in nowise take part in privateering, because the Netherlands
Government has acceded to the Declaration upon maritime rights set
forth by the Paris Conference of 1856, whereby, among other matters,
privateering is abolished, and no recognition of commissions obtained for
letters of marque is permitted. Also that coinmissions and letters of
marque, in conflict with the aforesaid prohibition, which may issue to
inhabitants of the Netherlands cannot have legal effect in behalf of
the King's subjects, or of any abroad who are in subjection to the laws
of the Kingdom. Those who, under such circumstances, engage in
privateering or lend their aid in it to others, will be considered as
pirates, and prosecuted according to law in the Netherlands, and sub-
jected to the punishment provided for the commission of such offences.
6. The Ministers above named."
(Translation.)
“ The Hague, June 1861. -
“ The Minister for Foreign Affairs, apprised by a communication
from the Minister of Marine that the King had authorized the naval
force in the West Indies to be seasonably strengthened by His Majesty's
steam-frigate Zealand and the screw-propellers Dyambi and Vesuvius,
for the purpose of giving protection to the trade and navigation of the
Netherlands during the contest which seems to be in existence in
the United States of North America, wherever it may be desired,
1
DECLARATIONS OF NEUTRAL POWERS.
147
accordingly esteems it to be his duty to direct the attention of ship- Chap. VI.
masters, consignees, and freighters, to the peril to which their insurance
against loss will be exposed by any violation of the obligations imposed
Note.
on neutral Powers to respect actual blockades, and not to carry con-
traband of war, or despatches of belligerents.
“ In these cases they will be subject to all the resulting losses that
may follow, without the benefit of any protection or intervention on the
part of His Majesty's Government. Of which take notice.
“ The Minister above named."
SPAIN.
(Translation.)
Palace, June 17, 1861.
Taking into consideration the relations which exist between Spain
and the United States of America, and the desirability that the reciprocal
sentiments of good understanding should not be changed by reason of the
grave erents which have taken place in that Republic, I have resolved
to maintain the most strict neutrality in the contest begun between the
Federal States of the Union and the States confederated at the South;
and in order to avoid the damage which might accrue to my subjects and
to navigation and commerce, from the want of clear provisions to which
to adjust their conduct, I do decree the following: -
" Article 1. It is forbidden in all the ports of the Monarchy to arm,
provide, or equip any privateer vessel, whatever may be the flag she
displays.
“ Art. 2. It is forbidden in like manner to the owners, masters, or
captains of merchant-vessels to accept letters of marque, or contribute
in any way whatsoever to the armament or equipment of vessels of war
or privateers.
“ Art. 3. It is forbidden to vessels of war or privateers with their
prizes, to enter or to remain for more than 24 hours in the ports of the
Monarchy, except in case of stress of weather. Whenever this last
shall occur, the authorities will keep watch over the vessel, and oblige
her to go out to sea as soon as possible without permitting her to take
in any stores except those strictly necessary for the moment, but in no
case arms nor supplies for war.
“ Art. 4. Articles proceeding from prizes shall not be sold in the
ports of the Monarchy.
“ Art. 5. The transportation under the Spanish flag of all articles of
commerce is guaranteed, except when they are directed to blockaded
ports. The transportation of effects of war is forbidden, as well as the
carrying of papers or communications for belligerents. Transgressors
shall be responsible for their acts, and shall have no right to the pro-
tection of my Government.
L 2
148
DECLARATIONS OF NEUTRAL POWERS.
Chap. VỊ.
Note.
“ Art. 6. It is forbidden to all Spaniards to enlist in the belligerent
armies, or take service on board of vessels of war or privateers.
“ Art. 7. My subjects will abstain from every act which, in viola-
tion of the laws of the kingdom, can be considered as contrary to
neutrality.
“ Art. 8. Those who violate the foregoing provisions shall have no
right to the protection of my Government, shall suffer the consequences
of the measures which the belligerents may dictate, and shall be punished
aceording to the laws of Spain.
“ SIGNED WITH THE ROYAL HAND.
The Minister of State,
“ Saturnino Calderon Collantes."
PORTUGAL
(Translation.)
“ Palace of Necessidades, July 29, 1861.
“ It being proper, in view of the circumstances at present existing
in regard to the United States of America, to carry into effect the prin-
ciples established in the Declaration of Paris of April 16, 1856, made
by the Representatives of the Powers that signed the Treaty of Peace of
the 30th of March of that year, to which Declaration my Government
acceded, and likewise, for the same reason, to adopt other measures
which I deem opportune, I have been pleased after hearing the Council
of State, to decree as follows:-
“ Article 1. In all the ports and waters of this Kingdom, as well on
the continent and in the adjacent islands as in the ultramarine provinces,
Portuguese subjects and foreigners are prohibited from fitting out vessels
destined for privateering.
66 Art. 2. In the same ports and waters referred to in the preceding
Article is, in like manner, prohibited the entrance of privateers and of
the prizes made by privateers, or by armed vessels.
“ The cases of overruling necessity (força maior), in which, according
to the law of nations, hospitality is indispensable, are excepted from this
regulation, without permission, however, being allowed, in any manner,
for the sale of any objects proceeding from prizes.
66 The Ministers and Secretaries of State in all the Departments will
thus understand, and cause it to be executed.
(Signed)
66 KING.
(Countersigned)
“ Marquez de Loulé.
“ Alberto Antonio de Moraes Carvalho.
“ Visconde de Sa da Bandeira.
66 Carlos Bento da Silva.
Thiago Augusto Velloso de Horta.
“ Antonio Jose d'Avila."
DECLARATIONS OF NEUTRAL POWERS.
149
HAWAIIAN ISLANDS.
Chap. Vị.
Note.
“Kailua, August 26, 1861.
“ Be it known to all whom it may concern that we, Kamehameha IV,
King of the Hawaiian Islands, having been officially notified that hosti-
lities are now unhappily pending between the Government of the United
States and certain States thereof, styling themselves the Confederate
States of America,' hereby proclaim our neutrality between the said
contending parties.
" That our neutrality is to be respected to the full extent of our
jurisdiction, and that all captures and seizures made within the same are
unlawful, and in violation of our rights as a Sovereign.
" And be it further known that we hereby strictly prohibit all our
subjects, and all who reside or may be within our jurisdiction, from
engaging either directly or indirectly in privateering against the shipping
or commerce of either of the contending parties, or rendering any aid
to such enterprises whatever; and all persons so offending will be liable
to the penalties imposed by the laws of nations, as well as by the laws
of said States, and they will in no wise obtain any protection from us as
against any penal consequences which they may incur.
“ Be it further known that no adjudication of prizes will be enter-
tained within our jurisdiction, nor will the sale of goods or other property
belonging to prizes be allowed.
“ Be it further known that the rights of asylum are not extended to
the privateers or their prizes of either of the contending parties, except-
ing only in cases of distress or of compulsory delay by stress of weather
or dangers of the sea, or in such cases as may be regulated by Treaty
stipulation.
Given at our marine residence of Kailua, this 26th day of August,
A.D. 1861, and the seventh of our reign.
By the King,
(Signed)
“ KAMEHAMEHA,
“ By the King and Kubina Nui,
66 Kaabumanu.
6 R. C. Wyllie,"
BREMEN.
(Translation.)
“ Ordinance of Senate against Privateering.
“ The Senate finds it necessary, in regard to the events which have
occurred in North America, to renew the regulations contained in its
Ordinance of April 29, 1854, and accordingly makes the following
notification for general observance :-
“ 1. All subjects of the State of Bremen are forbidden under severe
150
DECLARATIONS OF NEUTRAL POWERS.
Chap. VI. penalties, both from meddling in any way with privateering and from
taking any part therein, either by fitting out privateers themselves, or
Note
contributing through others to the same.
“ 2. The proper officers are ordered not on any account to allow the
fitting out or provisioning of privateers, under whatever flag, or carrying
any letters of marque, in any port of the Bremen territory, nor to
admit into a Bremen port any such privateers, or the prizes made by
them, except in cases of proved stress of weather at sea.
“ Resolved at Bremen, in the Assembly of the Senate, on the 2nd,
and published on the 4th of July, 1861."
HAMBURG
(Translation.)
“ Ordinance against Privateering.
“ On the occasion of the events which have taken place in the United
States of North America, the Senate reminds the public that, according
to the notification of July 7, 1856, relative to the Declaration of the
Congress of Paris on the application of maritime law in time of war,
privateering is entirely abolished, and therefore it is prohibited to engage
in any way in privateering, or to take part in it, either in fitting out
privateers or by assisting others to do so. The proper orders have also
been issued not to allow in Hamburg ports the fitting out or provisioning
of privateers, under whatever flag, or furnished with whatever letters of
marque, and not to admit into Hamburg ports or roadsteads any such
privateers, with or without prizes, except in cases of proved stress of
weather at sea.
5 Given in the Assembly of the Senate, Hanıburg, July 19, 1861.”
It has been the usual practice of neutral Powers, at the commence-
ment of a maritime war, to publish such Notifications as the above. An
account of those issued in the war of 1854 will be found in Ortolan's
Diplomatie de la Mer, vol. ii, Appendix viii ; De Cussy's Phases et Causes
Célèbres du Droit Maritime, vol. i, p. 211. The Proclamations of Neutrality
issued by Great Britain in other wars, previous and subsequent, are
given in the Appendix No. V to the Report of the Royal Commission
on the Neutrality Laws, 1868, from which the foregoing documents are
taken.
CHAPTER VII.
Complaints made by the American Government of the Proclamation of
Neutrality.-Remonstrances of Mr. Adams; his Interviews with
Earl Russell.—Ground taken by Mr. Seward.-Later Positions of
the American Government.-- Positions of the Government of Great
Britain.-Observations.
MR. ADAMS, who had been appointed by President
Lincoln to succeed Mr. Dallas as Envoy and Minister
Plenipotentiary at the British Court, arrived at Liver-
pool on the 13th May, and proceeded on the same
evening to London. He presented his credentials on
the 16th, and on the 18th had an interview with Lord
John Russell. His subsequent report of this interview
to the American Secretary of State is extremely copious,
and was evidently composed with care, and the views
which he expressed on behalf of his Government may
be most fairly stated in his own words. After referring
to the observations which had fallen from Lord John
Russell, in conversation with Mr. Dallas (respecting
which he had been instructed to seek for explanations),
he asked
“Whether it was the intention of Her Majesty's Ministers to adopt
a policy which would have the effect to widen, if not to make irre-
parable, a breach which we believed yet to be entirely manageable by
ourselves.
“ At this point his Lordship replied by saying that there was no such
intention. The clearest evidence of that was to be found in the assur-
ance given by him to Mr. Dallas in the earlier part of the conversation
referred to. With regard to the other portion, against which I under-
stood him to intimate he had already heard from Lord Lyons that the
152
REMONSTRANCES OF MR. ADAMS.
Chap. VII. President had taken exception, he could only say that he hardly saw his
way to bind the Government to any specific course, when circumstances
beyond their agency rendered it difficult to tell what might happen.
Should the insurgent States ultimately succeed in establishing them-
selves in an independent position, of the probability of which he desired
to express no opinion, he presumed, from the general course of the
United States heretofore, that they did not mean to require of other
countries to pledge themselves to go further than they had been in the
habit of going themselves. He, therefore, by what he had said to
Mr. Dallas, simply meant to say that they were not disposed in any way
to interfere.
“ To this I replied by begging leave to remark that, so far as my
Government was concerned, any desire to interfere had never been imputed
to Great Britain ; but in her peculiar position it was deserving of grave
consideration whether great caution was not to be used in adopting any
course that might, even in the most indirect way, have an effect to
encourage the hopes of the disaffected in America. It bad now come to
this, that without support from here, the people of the United States
considered the termination of this difficulty as almost entirely a question
of time. Any course adopted here that would materially change that
calculation would inevitably raise the most unpleasant feelings among
them. For independently of the absolute influence of Great Britain,
admitted to be great, the effect of any supposed inclination on her part
could not fail to be extensive among the other nations of Europe. It
was my belief that the insurgent States could scarcely hope for sympathy
on this side the Atlantic, if deprived of any prospect of it here. Hence,
anything that looked like a manifestation of it would be regarded
among us as inevitably tending to develope an ultimate separation in
America ; and, whether intended or not, the impression made would
scarcely be effaced by time. It was in this view that I must be per-
mitted to express the great regret I had felt on learning the decision to
issue the Queen's Proclamation, which at once raised the insurgents to
the level of a belligerent State, and still more the language used in
regard to it by Her Majesty's Ministers in both Houses of Parliament
before and since. Whatever might be the design, there could be no
shadow of doubt that the effect of these events had been to encourage
the friends of the disaffected here. The tone of the press and of private
opinion indicated it strongly. I then alluded more especially to the
brief report of the Lord Chancellor's speech or Thursday last, in which
he had characterized the rebellious portion of my country as a bellige-
rent State, and the war that was going on as justum bellum.
“ To this his Lordship replied that he thought more stress was laid
upon these events than they deserved. That fact was that a necessity
seemed to exist to define the course of the Government in regard to the
participation of the subjects of Great Britain in the impending conflict.
To that end the legal questions involved had been referred to those officers
niost conrersant with them, and their advice had been taken in shaping
V
REMONSTRANCES OF MR. ADAMS.
153
the result. Their conclusion had been that, merely as a question of fact, Chap. VII.
a war existed. A considerable number of the States, at least seven,
occupying a wide extent of country, were in open resistance, whilst
one or more of the others were associating themselves in the same
struggle, and as yet there were no indications of any other result than a
contest of arms more or less severe. In many preceding cases, much
less formidable demonstrations had been recognized. Under such cir.
cumstances is seemed scarcely possible to avoid speaking of this in the
technical sense as justum bellum, that is, a war of two sides, without in
any way implying an opinion of its justice, as well as to withhold an
endeavour, so far as possible, to bring the management of it within the
rules of modern civilized welfare. This was all that was contemplated
by the Queen's Proclamation. It was designed to show the purport of
existing laws, and to explain to British subjects their liabilities in case
they should engage in the war. And however strongly the people of
the United States might feel against their enemies, it was hardly to be
supposed that in practice they would now vary from their uniformly
humane policy heretofore in endeavouring to assuage and mitigate the
horrors of war.
“ To all which I answered that, under other circumstances, I should be
very ready to give my cheerful assent to this view of his Lordship’s. But
I must be permitted frankly to remark that the action taken seemed, at
least to my mind, a little more rapid than was actually called for by the
occasion. It might be recollected that the new Administration had
scarcely had sixty days to develope its policy; that the extent to which all
departments of the Government had been demoralized in the preceding
administration was surely understood here, at least in part: that the very
organization upon which any future action was to be predicated was to
be renovated and purified hefore a hope could be entertained of energetic
and effective labour. The consequence had been that it was but just
emerging from its difficulties and beginning to develop the power of the
country to cope with this rebellion, when the British Government took
the initiative, and decided practically that it is a struggle of two sides.
And, furthermore, it pronounced the insurgents to be a belligerent
State before they had ever shown their capacity to maintain any kind
of warfare whatever, except within one of their own harbours, and
under every possible advantage. It considered them a marine power
before they had ever exhibited a single privateer on the ocean. I said
that I was not aware that a single armed vessel had yet been issued
from any port under the control of these people. Surely this was not
the case in the instance which had been relied upon in his speech by his
Lordship as authority for the present action. There the Greeks, how-
erer small as a people, had long been actively and effectually waging
war before the interposition of Great Britain, and, to use the language
of the Government, as quoted by himself, had 'covered the sea with
cruisers.' It did seem to me, therefore, as if a little more time might
have been taken to form a more complete estimate of the relative force
154
REMONSTRANCES OF MR. ADAMS.
Chap. VII. of the contending Powers, and of the probabilities of any long-drawn
issue. And I did not doubt that the view taken by me would be that
substantially taken both by the Government and the people of the United
States. They would inevitably infer the existence of an intention more
or less marked to extend the struggle. For this reason it was that I
made my present application to know whether such a design was or was
not entertained. For in the alternative of an affirmative answer it was
as well for us to know it, as I was bound to acknowledge in all frank-
ness that in that contingency I had nothing further left to do in Great
Britain. I said this with regret, as my own feelings had been and were
of the most friendly nature.
“ His Lordship replied by an assurance that he participated in those
feelings; neither did he see the action that had been thus far taken at
all in the light in which I saw it. He believed that the United States,
in their own previous history, had furnished examples of action taken
quite as early as that now complained of. He instanced two cases. The
first I do not now remember, for it seemed to me not important at the
time; the other was the insurrection in Hungary under Kossuth, at which
period, he believed, they had gone so far as actually to send an agent to
that country with a view to recognition, and that to the great dissatis-
faction and against the remonstrances of Austria.
“I replied only to the second case, by remarking that the incidents
attending that affair were not fresh in my mind, neither was I sure that
I ever knew the whole action of the Government; but it was my in-
pression that the object of the mission was only confined to the acquisition
of the facts necessary to form an opinion, and that, after they were
obtained, no public step of any kind had been taken. Neither could I
myself recollect an instance in which ample time had not been given by
the United States for the development of events sufficiently decisive to
justify any action that might have followed; for I begged it to be under-
stood that the Government did not mean at all to deny that there were
cases in which recognition of a revolutionary government might be both
expedient and proper. The rule was clear, that whenever it became
apparent that any organized form of society had advanced so far as to
prove its power to defend and protect itself against the assaults of
enemies, and at the same time to manifest a capacity to maintain binding
relations with foreign nations, then a measure of recognition could not be
justly objected to on any side. The case was very different when such an
interference should take place, prior to the establishment of the proof
required, as to bring about a result which would not probably have
happened but for that external agency.
*
“I proceeded to observe that I had come to England prepared to present
the views of my Government on the general question, and that I should
have done so in full but for the interposition of this more immediate
despatch. At the present moment I should touch only upon one point
REMONSTRANCES OF MR. ADAMS.
155
3
in connection with the acknowledgment of the insurgents eren as a bel- Chap. VII.
ligerent State. It seemed necesary to call the attention of his Lordship
to the fact which must be obvious to him, that as yet they had not laid
any foundation for Government solid enough to deserve a moment's
confidence. They had undertaken to withdraw certain States from the
Government by an arbitrary act which they called Secession, not known to
the Constitution, the validity of which had at no time been acknowledged
by the people of the United States, and which was now emphatically
denied; but not content with this, they had gone on to substitute
another system among themselves, arowedly based upon the recognition
of this right of States to withdraw or secede at pleasure. With such a
Treaty (sic), I would ask, where could be the vested obligation of Treaties
with foreign Powers, of the payment of any debts contracted, or, indeed, of
any act performed in good faith by the common authority for the time
being established ? For my own part, I fully believed that such a system
could not deserve to be denominated, in any sense, a Government; and
therefore I could not but think any act performed here, having a
tendency to invest it in the eye of the world with the notion of form and
substance, could be attended only with the most complete disappointment
to all the parties connected with it.
“ His Lördship here interposed by saying that there was not, in his
opinion, any occasion at present for going into this class of arguments, as
the Government did not contemplate taking any step that way. Should
any such time arrive in the future, he should be very ready to listen to
every argument that might be presented against it on the part of the
United States. At this moment he thought we had better confine
ourselves to the matter immediately in hand.”]
The act of the British Government in declaring its
neutrality had been “a little more rapid than was
actually called for by the occasion.” 66 It did seem as if
a little more time might have been taken.” It “had a
tendency to invest” the Confederate Government “in
the eyes of the world with the notion of form and sub-
stance;” and would probably lead the Government and
people of the United States to suspect the existence of
an intention to extend the struggle in which they
were engaged. This was the whole substance of
Mr. Adams's complaint. Was there, he asked, such
an intention? The answer was prompt and decided.
" There was no such intention.' “A necessity seemed
to exist to define the course of the Government in
1
1 Mr. Adams to Mr. Seward, 21st May, 1861.
156
REMONSTRANCES OF MR, ADAMS.
Chap. VII. regard to the participation of the subjects of Great
Britain in the impending conflict. This was all that
was contemplated in the Queen's Proclamation. It was
designed to show the purport of existing laws, and to
explain to British subjects their liabilities in case they
should engage in the war."
At a subsequent interview Mr. Adams, in obedience,
as he conceived, to the instructions of his Government,
stated his objections over again
“ I descanted upon the irritation produced in America by the Queen's
Proclamation, upon the construction almost universally given to it, as
designed to aid the insurgents by raising them to the rank of a belli-
gerent State, and upon the very decided tone taken by the President in
my despatches in case any such design was really entertained. I added,
that from my own observation of what had since occurred here, I had
not been able to convince myself of the existence of such a design.
*
*
*
“ I ventured to repeat my regret that the Proclamation had been so
hastily issued, and adverted to the fact that it seemed contrary to the
agreement said to have been proposed by Mr. Dalļas and concurred in
by his Lordship, to postpone all action until I should arrive, possessed
with all the views of the new administration. But still, though I felt
that much mischief had ensụed in the creation of prejudices in the
United States, not now easy to be eradicated, I was not myself disposed
in any part of my conduct to aggravate the evil. My views - had been
much modified by opportunities of more extended conversation with
persons of weight in Great Britain, by the improved tone of the press,
by subsequent explanations in Parliament, by the prohibition of all
attempts to introduce prizes into British ports, and, lastly, by the un-
equivocal expression of sentiment in the case of Mr. Gregory when the
time came for him to press his motion of recognition. I trusted that
nothing new might occur to change the current again, for nothing was so
unfortunate as the effect of a recurrence of reciprocal irritations, how-
ever trifling, between countries, in breaking up the good understanding
which it was always desirable to preserve.
" His Lordship agreed to this, but remarked that he could not but
think the complaint of the Proclamation, though natural enough perhaps
at this moment, was really ill-founded. He went over the ground once
more which he occupied in the former interview-the necessity of doing
something to relieve the officers of their ships from the responsibility of
treating these persons as pirates if they met them on the seas. For his
part, he could not believe the United States would persevere in the idea
of hanging them, for it was not in consonance with their well-known
character. But what would be their own situation if they should be
REMONSTRANCES OF MR. ADAMS.
157
ance.
ocean.
found practising upon a harsher system than the Americans them- Chap. VII.
selves ?
“ Here was a very large territory-a number of States—and people
counted by millions, who were in a state of actual war. The fact was
undeniable, and the embarrassment unavoidable. Under such circum-
stances, the Law Officers of the Crown advised the policy which had been
adopted. It was designed only as a preventive to immediate evils.
The United States should not have thought hard of it. They meant to
be entirely neutral.
“ I replied that we asked no more than that. We desired no assist-
Our objection to this act was, that it was practically not an act of
neutrality. It had depressed the spirits of the friends of the Govern-
ment. It had raised the courage of the insurgents. We construed it as
adverse, because we could not see the necessity of such immediate haste,
These people were not a navigating people. They had not a ship on the
They had made no prizes, so far as I knew, excepting such as
they had caught by surprises. Even now, I could not learn that they
had fitted out anything more than a few old steamboats, utterly unable
to make any cruise on the ocean, and scarcely strong enough to bear a
cannon of any calibre. But it was useless to go over this any more.
The thing was now done. All that we could hope was that the later
explanations would counteract the worst effects that we had reason to
apprehend from it; and, at any rate, there was one compensation, the
act had released the Government of the United States from responsibility
for any misdeeds of the rebels towards Great Britain If any of their
people should capture or maltreat a British vessel on the ocean, the
reclamation must be made only upon those who had authorized the
wrong. The United States would not be liable.” 1
On the 21st June, Mr. Adams reports the impression
which had been created in this country by the news
that the Proclamation had excited feelings of irritation
in the United States. Everybody was surprised at it-
or, as Mr. Adams preferred to say, everybody “affected"
to be surprised at it. And to those who have read the
foregoing narrative, this emotion will probably appear
extremely natural. “ Whilst people of all classes unite in
declaring that such a measure was unavoidable, they are
equally earnest in disavowing any inferences of want of
good-will which may have been drawn from it. They
affect to consider our complaints as very unreasonable.
I am now earnestly assured on all sides
1 Mr. Adams to Mr. Seward, 14th June, 1861.
158
SURPRISE IN ENGLAND.
Chap. VII. that the sympathy with the Government of the United
States is general; that the indignation felt in America
is not founded on reason; that the British desire only
to be perfectly neutral, giving no aid nor comfort to the
insurgents. I believe that this sentiment is now growing
to be universal. It inspires Her Majesty's Ministers,
and is not without effect on the Opposition. Neither
party would be so bold as to declare its sympathy with
a cause based on the extension of slavery, for that would
at once draw upon itself the indignation of the great
body of the people.” He believed at the same time that
the growth of an active sympathy with the United
States would much depend on the success of their
arms. As to the popular feeling in America, he ex-
pressed to Lord John Russell a few days afterwards his
confidence that it would subside the moment all the
later action on this side was known. There was a
single drawback remaining—the despatch of reinforce-
ments to Canada." “He” (Lord J. Russell) “said, that
was a mere precaution against times of trouble.” 2
I have referred particularly to these passages because,
occurring very soon after the issue of the Proclamation,
they show in what light it was regarded at the time by
the British Secretary of State for Foreign Affairs on the
one hand, and on the other by a Minister of so much
sense and moderation, yet so thoroughly imbued with
the views of his own Government, as Mr. Adams. The
Proclamation frequently appeared as a subject of com-
plaint-generally entangled with other subjects of com-
plaint–in the later correspondence between the two
Governments : by degrees it took the shape of a sub-
stantial grievance: at last it towered into a grievance of
prodigious magnitude. I do not propose to pursue the
course of the controversy. What is material to this
history is the general attitude assumed with respect
1 Mr. Adams to Mr. Seward, 21st June, 1861.
2 Mr. Adams to Mr. Seward, 28th June, 1861.
VIEWS OF MR. SEWARD.
159
-
to this question by the Government of the United Chap. VII.
States.
Mr. Seward's earlier despatches to the Legations in
Paris and London are clear and explicit enough, and
were probably a faithful expression of popular senti-
ment in the United States. On the 21st May he wrote
to Mr. Adams to suspend all intercourse, official and
unofficial, with the British Government, if it should have
any communication whatever with the agents of the
Confederacy-an order which Mr. Adams seems to have
had the prudence to disobey. A concession of belli-
gerent rights to the revolted States “would not pass
unquestioned.” As to Confederate privateers, “ this is
a question exclusively our own. We treat them as
pirates.” “If Great Britain shall choose to recognize
them as lawful belligerents and give them shelter from
our pursuit and punishment, the laws of nations afford
an adequate remedy.")
On the 28th, Mr. Dayton was told that “ the United
States cannot for a moment allow the French Govern-
ment to rest under the delusive belief that they will be
content to have the Confederate States recognized as a
belligerent Power by States with which this nation was
at amity. No concert of action among foreign States
so recognizing the insurgents can reconcile the United
States to such a proceeding, whatever may be the conse-
quences of resistance."2
On the 15th June, Lord Lyons and M. Mercier, the
French Minister at Washington, had an interview with
the Secretary of State, at which they proposed to read
to him instructions which they had received from their
respective Courts. Mr. Seward, having informed him-
self of the substance of these instructions, declined to
hear them, and communicated the reasons of his refusal
to the American Ministers at London and Paris. Of the
British instructions he wrote:
1 Mr. Seward to Mr. Adams, 21st May, 1861.
2 Mr. Seward to Mr. Dayton, 28th May, 1861.
160
VIEWS OF MR. SEWARD.
Chap. VII.
SOV
“ That paper purports to contain a decision at which the British
Government has arrived, to the effect that this country is divided into
two belligerent parties, of which this Government represents one, and
that Great Britain assumes the attitude of a neutral between them.
“ This Government could not, consistently with a just regard for the
overeignty of the United States, permit itself to debate these novel and
extraordinary positions with the Government of Her Britannic Majesty;
much less can we consent that that Government shall announce to us a
decision derogating from that sovereignty, at which it has arrived without
previously conferring with us upon the question. The United States are
still solely and exclusively sovereign within the territories they have
lawfully acquired and long possessed, as they have always been. They
are living under the obligations of the laws of nations, and of Treaties
with Great Britain, just the same now as heretofore; they are, of course,
the friend of Great Britain, and they insist that Great Britain shall
remain their friend now just as she has hitherto been. Great Britain,
by virtue of these relations, is a stranger to parties and sections in this
ountry, whether they are loyal to the United States or not, and Great
Britain can neither rightfully qualify the sovereignty of the United
States, nor concede, nor recognize any rights, or interest, or power of
any party, State, or section, in contravention to the unbroken sovereignty
of the Federal Union. What is now seen in this country is the occur-
rence, 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 Govern-
ment, creating belligerent sections, and entitling foreign States to inter-
vene or to act as neutrals between them, or in any other way to cast off
their lawful obligations to the nation thus for the momeni disturbed.
Any other principle than this would be to resolve Government every-
where into a thing of accident and caprice, and ultimately all human
society into a state of perpetual war.” 1
COU
To Mr. Dayton :-
“ 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 recog-
nized by foreign nations. There is, indeed, an armed sedition seeking
1 Mr. Seward to Mr. Adams, 19th June, 1861.
VIEWS OF MR. SEWARD.
161
to overthrow the Government, and the Government is employing military Chap. VII.
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 rerolution 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, tben there exists a state
of war affecting the characters, rights, and duties of all parties concerned.
But this only happens when the revolution has run its successful course.” 1
The passages which have been quoted will admit but
one construction. They were a rejection, in the most
unqualified form, of the proposition that the existence of
war is a simple matter of fact, to be ascertained as other
facts are-and an assertion, in the most unqualified
form, of the dogma that there can be no war, so far
as foreign nations are concerned, and, therefore, no
neutrality, so long as there is a sovereignty de jure.
All circumstances showing the scale upon which the
contest was carried on were summarily rejected from
consideration. The fact that the people of the Con-
federate States were not in obedience to the Govern-
ment of the United States, but in arms against it, and
obeyed another Government of their own, was likewise
to be rejected from consideration. There could be no
war, because the United States were sovereign. In a
contest between a sovereign and his subjects, foreign
nations could not assume the position of neutrals. This
condition of affairs must last until the revolution should
have “run its successful course," and the Union should
have been divided into two or more communities com-
pletely independent of each other. If after such divi-
sion the strife between them should be continued, there
would then be a war. Before it there could be no
In short, a recognition of belligerency can never
properly precede--it can only follow—a recognition of
independence.
war.
1 Mr. Seward to Mr. Dayton, 17th June, 1861.
M
162
LATER POSITIONS.
Chap. VII.
an
on
course
on
These positions were perfectly clear and consistent.
They were also erroneous, unreasonable, flatly opposed to
the settled opinion and practice of nations, and especially
to the settled opinion and practice of the United States.
Although asserted in Mr. Seward's despatches, which
were afterwards published in America, the Govern-
ment did not at that time attempt practically to
enforce them; but it is clear that they continued
to exercise influence the
of the
Government, and still
more
that of public
opinion. When, however, the question entered the
stage of controversy, they were too plainly untenable
to be maintained. Endeavours were then made to
place it on a different ground.
Stripped of mere rhetoric, and reduced (as far as it
admits of this) to the form of tangible propositions, the
case alleged against England on behalf of the United
States in the later despatches was in substance as
follows:
1. That at the date of the Queen's Proclamation of
neutrality there was in fact no war, or at least no mari-
time war, between the United States and the people of
the revolted States.
L
1 They re-appear, indeed, in a despatch of Mr. Seward's (in which he
reviews the case and re-states the American claim) so late as 1867:-
“ It will be found, we think, that all nations which have desired to
practice justice and friendship towards a State temporarily disturbed by
insurrection, have forborne from conceding belligerent privileges to the
insurgents in anticipation of their concession by the disturbed State
itself. A nation which departs from this duty always practically com-
mits itself as an ally to the insurgents, and may justly he held to the
responsibilities of that relation.”—Mr. Seward to Mr. Adams, 12th
January, 1867.
Since it must always be an undecided question, until the contest is
over, whether a revolt will prove to be temporary or permanent, this is
equivalent to saying that to recognize a revolted community as belligerent
before it has been acknowledged as such by its original Sovereign, is
always a breach of international duty, which converts the recognizing
Power into an ally of the one and an enemy of the other-a proposition
truly amazing in the mouth of an American statesman.
LATER AMERICAN POSITIONS. .
163
1
2. That after it there was a maritime war, of which Chap. VII.
the Proclamation was the cause.
3. That, by the Queen's Proclamation, acts done in
British ports were made lawful, which would otherwise
have been unlawful and criminal; and that it thus
enabled the Confederates to procure ships of war and
send them to sea, which otherwise they could not have
done, and to obtain goods and money in England.
4. That it enabled these ships to cruise, which other-
wise they would have been unable to do.
5. That, the existence of a state of war, even at sea,
does not by itself justify a foreign Power in declaring
itself neutral. That it must further be shown that such
a declaration is “necessary,” in order to ward off some
positive inconvenience from the foreign Power or its
subjects. That the foreign Power is not to be the sole
judge whether it has reason to apprehend such an
inconvenience, and that this may be contested by the
Sovereign whose subjects are in arms against him. That
1 “It was my wish to maintain –
“ 1. That the act of recognition by Her Majesty's Government of
insurgents as belligerents on the high seas, before they had a single vessel
afloat, was precipitate and unprecedented;
“ 2. That it had the effect of creating those parties belligerents after
the recognition, instead of acknowledging an existing fact;
“3. That this creation has since been effected exclusively from the
ports of Her Majesty's kingdom and its dependencies, with the aid and
co-operation of her Majesty's subjects." -Mr. Adams to Earl Russell,
20th May, 1865.
“The assumed belligerency of the insurgents was a fiction—a war on
paper only, not in the field-like a paper blockade, the anticipation of
supposed belligerency to come, but which might never have come if not
thus anticipated and encouraged by Her Majesty's Government. Indeed,
as forcibly put by Mr. Adams, the Queen's Declaration had the effect of
creating posterior belligerency instead of merely acknowledging an
actual fact.
" In virtue of the Proclamation, maritime enterprises in the ports of
Great Britain which would otherwise bave been piratical, were rendered
lawful; and thus Great Britain became, and to the end continued to
be, the arsenal, the navy-yard, and the treasury, of the insurgent Confe-
deracy.”—Mr. Fish to Mr. Motley, 25th September, 1869.
M 2
164
POSITIONS OF GREAT BRITAIV.
Chap. VII. in the absence of “ necessity” such a declaration is “
a pre-
mature;” and that being premature it is "wrongful”
and “injurious," and warrants a demand for “redress
and indemnity.”
6. That no such necessity existed at the time of the
issue of the Queen's Proclamation, nor afterwards; or
at
any
rate that none would have existed afterwards but
for the issue of the Proclamation.
This is, I think, a fair and true statement of the pro-
positions which may be extracted from the despatches of
the American Government.
The case of the British Government is contained in
the counter-propositions which follow :-
1. That a war carried on by a blockade of ports and
coasts on the one side, and on the other by cruisers and
privateers, is a maritime war; and that it is not the less
a maritime war because there is a disparity of strength-
because the blockade is successful, and the cruisers and
privateers are few. That such a war had been virtually
I “The issue between the United States and Great Britain, which is
the subject of the present correspondence, is not upon the question
whether a civil war has recently existed in the United States, nor is the
issue upon that other question, whether such a civil war was actually
existing there at the date of the Queen's Proclamation of neutrality.
What is alleged on the part of the United States is,
that the Queen's Proclamation, which by conceding belligerent rights to
the insurgents lifted them up for the purpose of insurrection to an
equality with the nation which they were attempting to overthrow, was
premature because it was unnecessary, and was in its operation unfriendly
because it was premature.
The United States remain of
opinion that the Proclamation has not been justified on any ground of
either necessity or moral rights; that, therefore, it was an act of wrong-
ful intervention, a departure from the obligations of existing Treaties, and
without sanction of the law of nations.”—Mr. Seward to Lord Stanley,
14th January, 1867.
“ This Government insisted in the beginning, and has continually
insisted, that the assumption of that attitude, unnecessarily and prema-
turely, would be an injurious proceeding, for which Great Britain would
immediately come under a full responsibility to justify it or to render
redress and indemnity.”—Mr. Seward to Mr. Adams, 27th August, 1866.
See also Mr. Fish to Mr. Motley, 25th September, 1869.
POSITIONS OF GREAT BRITAIN.
165
or
declared, and was in existence and in active operation, Chap. VII.
before the Proclamation was issued, and for several
weeks at least before it could have been known in the
Confederate States, and therefore could not possibly have
been created by it.
2. That the Proclamation did not make lawful any
acts within British territory which would otherwise have
been unlawful; nor enable, nor in any way assist, the
Confederates to procure ships of war in England
elsewhere, or to send them to sea; and that a recognized
belligerent is no more able to do this in England than
an unrecognized belligerent is,
3. That the toleration extended to the Confederate
cruisers consisted substantially in not excluding them
from British ports, and in suffering them to remain there
for a limited time, and to purchase in the market limited
supplies of provisions and of coal. That Great Britain
had a right to accord this permission to vessels which
were not piratical nor engaged in any enterprise pro-
hibited by the law of nations. That she would have had
the same right had no declaration of neutrality been
issued. That nothing could be more unreasonable than
to expect her to treat as pirates persons who were not
such, and who were not so treated by the American
Government itself. And that the permission accorded
to them was likewise accorded to Federal cruisers, and
by them far more largely used.
4. That, given the existence of a state of war, any
foreign Power has a right to declare itself neutral, whose..
territory the war may approach, or whose subjects may
be brought into contact with it. That the question
..
i Nor does such a Proclamation, as some writers seems to imagine,
give to the revolted community any locus standi in the Courts of the
neutral country, or any power which it would not otherwise have to enter
into contracts there, to buy goods or borrow money, whether for the
purposes of the war or for any other purpose. In the eye of the law it
continues to be what it was before--a mass of population in arms against
the Government of a friendly State.
166
NEUTRALITY A RIGHT.
Chap. VII. whether any inconvenience, or how much, is to be appre-
hended from not making such a declaration, is not a
question which either belligerent has a right to discuss
with the neutral, but one of which the neutral is the
best and sole judge. That in no case and under no
circumstances can a declaration of neutrality be a wrong
to a Power which is itself exercising, or has assumed
to exercise, against neutrals, any of the jura belli.
5. But lastly, that, at the time of declaring itself
neutral, the British Government had in fact sufficient
reason to apprehend inconvenience from remaining
silent, and to assume formally and at once the position
of a neutral, which must have been assumed sooner or
later.
The reader of this narrative will be able to judge for
himself between these two chains of propositions—which
of them is the truer in fact and the sounder in principle.
He will be able to judge whether the Confederates were,
or were not, a mere body of armed insurgents, without
organization, without a Government, without judicial
tribunals, without seaports, without resources; and
whether the contest was more correctly described by
the American Secretary of State as “an armed sedition,'
such as is “frequent in all countries,” or by the Supreme
Court as “the greatest of civil wars.' He will have
observed in what light it was practically regarded by the
Federal Administration, by the Federal Courts, by the
people of the North, by the people of the South, and
by Europe. And he will be able to decide whether, in
the presence of such a contest, a maritime nation, with
whom both North and South had incessant and profitable
intercourse, had or had not the right, without incurring
even an imputation of unfriendliness or of undue haste,
to declare itself neutral.
It is evident, however, that the real complaint against
Great Britain was not that she declared herself neutral,
but that she was so. To contend that she ought to have
BRITISH NEUTRALITY NOT INJURIOUS.
167
1
excluded Confederate ships from her ports, denied them Chap. VII.
the hospitalities due by the general custom of nations to
all vessels not tainted with piracy, and treated them as
pirates, whilst Federal cruisers were permitted to enter
and supply themselves freely—what is this but to
maintain that she had not in this contest the right
to be neutral ?, I affirm that to be neutral was her
right and duty.
The American Government has represented itself as
a sufferer by this neutrality. Had this been really so,
to be neutral would none the less have been the right
and duty of Great Britain. But was it so? What the
United States really lost by it has never been distinctly
stated. But it is easy to see what they gained. They
gained the liberty to exercise against British ships on
the high seas the rights of visit and search, of
capturing contraband, and of blockade---rights which
spring solely from the relation of belligerent and
neutral, and which the neutral acknowledges by recog-
nizing the existence of that relation. The advantages
reaped in maritime war from the exercise of such rights
fall, where there is a disparity of force, into the hands
of the stronger belligerent; where the disparity is great,
he has a monopoly of them, for he is able to shut up his
1 In December 1864, Mr. Seward wrote to the Brazilian Chargé
d'Affaires :
" This Government disallows your assumption that the insurgents of
this country are a lawful naval belligerent; and on the contrary it
maintains that the ascription of that character by the Government of
Brazil to insurgent citizens of the United States, who have hitherto been,
and who still are, destitute of naval forces, ports, and courts, is an act of
intervention in derogation of the law of nations, and unfriendly and
wrongful as it is manifestly injurious to the United States."
It is plain that the real grierance was not that the belligerents were
recognized as belligerents too soon, but that they were so recognized at
all. The stress laid on the date of the British Declaration is an endeavour
to give the complaint something like plausibility, and to point against
Great Britain in especial an accusation which really includes other
neutral nations.
168
AMERICAN VIEW UNREASONABLE.
Chap. VII. enemy in port and drive him from the sea. Did not the
Government of the United States claim these rights ?
Did it not exert them-freely, largely, even rigorously?
Were they of no advantage to it? Did it ever propose
to forego them? There is a lurking idea, I think, in the
minds of some Americans, that two parties are not neces-
sary to a war, and that they ought to have been suffered
to act as belligerents while refusing to the European
Power the right to be neutral. But the difficulty of
giving an air of reasonableness to the idea has prevented
it from being plainly expressed.
For myself I have never been able to understand
how the American Government could seriously insist on
a grievance which its own publicists are almost unani-
mous in disclaiming, and which is indeed the most
groundless and unsubstantial that one nation ever
alleged against another. I am unable to comprehend
how it could be premature to provide for a state of
circumstances which was actually existing at the time,
or precipitate to announce in May a conclusion on
which the President himself had begun to act in April ;
how it can be deliberately maintained by any one that
such chimerical hopes as the Confederates may possibly
have built, for the moment, on the Queen's Proclama-
tion exercised any material influence on the fortunes of
the war; or how, if that were granted, the British
Government could be held justly answerable for the
chimeras raised in sanguine imaginations by an act
which was itself lawful and reasonable. So unsubstan-
tial, indeed, is this complaint, that we see it in the
1 See Lawrence, Commentaire sur les Eléments du Droit Inter-
national, &c., vol. i, p. 185.--" Les déclarations de neutralité faites par la
France et la Grande Bretagne en Mai et en Juin 1861, et qui furent
suivies
par celles d'autres puissances, ne sont donc que les corollaires des
actes du Gouvernement Américain. Celui-ci a été en effet le premier à
établir les droits de guerre dans les Etats séparés.”
See also Woolsey, On the Alabama Claims, 1869, and an article in the
American Law Review, October 1869, p. 36.
CHARACTER OF THE ARGUMENT.
169
-
American despatches continually shifting its position, Chap. VII.
changing its shape, and eluding the grasp of argument
by studied subtleties of expression. Sometimes the
assumption of neutrality in this contest is a "wrongful
and injurious" act; sometimes it is only “unfriendly
in its operation,” or “suggests the suspicion of an
unfriendly motive," or is “a sign of a purpose of
unfriendliness ;" again it re-appears as a wrong, and as
the foundation of a specific claim for damages, and
finally becomes nothing less than “a virtual act of war."
We are sometimes told that the issue is not whether
at the date of the Proclamation there was a war between
the Union and the revolted States or no: we ask, What
then is the issue ?-and are presented with an argument
to prove that the contest was not a war, but a mere
insurrection; that though the President himself treated
it as a war, and assumed to exercise belligerent rights,
he did not do this “expressly or in form,” and might,
had he thought fit, have abstained from exercising them.
1 “The Supreme Court of the United States and that of the District
of Columbia, in their opinions did not pretend, admit, or imply, that the
President's aforesaid Proclamation, expressly and in form declared or
recognized a state of civil war.
The Courts reached their
conclusion that a state of civil war was existing at the time of the mari-
time captures which were under consideration, by processes of reason and
argument.
Lord Stanley repeats from Earl Russell, and
re-affirms, that “Her Majesty's Government had but two courses open to
them on receiving intelligence of the President's Proclamation,' namely,
either that of acknowledging the blockade and proclaiming the neutrality
of Her Majesty, or that of refusing to acknowledge the blockade and
insisting upon the right of Her Majesty's subjects to trade with the ports
of the South where the Government of the United States could exercise
no fiscal control at that time.
“With due respect I must demur to this statement. The disturbance
being, at the time referred to, officially and legally held by the Govern-
ment of the United States to be a local insurrection, this Government had
a right to close the the ports in the States within the scene of the insur-
rection, by municipal law, and to forbid strangers from all intercourse
therewith, and to use the armed and naval forces for that purpose. A
blockade was legitimately declared to that end; and, until the state of
civil war should actually have developed, the existence of a blockade
170
CHARACTER OF THE ARGUMENT.
Chap. VII. The President need not have instituted a blockade :
foreign nations, therefore, were bound to act as if he
had not instituted one. It is impossible to speak
respectfully, or even seriously, of an argument con-
ducted in this fashion. It is unworthy of a manly and
honest reasoner; it is strangely unsuited to the Govern-
ment of a great people.
would have conferred no belligerent rights upon the insurgents. In
choosing the blockade as a form of remedy less oppressive than the
closing of the ports by statute, the United States might perhaps have
come under an obligation to respect any just rights and interests of aliens
which might have been infringed. There was, however, no just ground
of apprehension on that subject, for the history of the time shows that
those rights were in all cases inviolately respected."--Mr. Seward to
Lord Stanley, 14th January, 1867. ,
CHAPTER VIII.
Negotiations respecting International Maritime Law, and the Declaration
of Paris, 1856.—Conventions Proposed by the Government of the
United States to Great Britain and France.-Failure of the Negotia-
tions.--Informal Communications with the Confederate States on the
same Subject.
The negotiation which forms the subject of this
chapter proved abortive, and has not an important
place in the history of the war. It has, however, a place
in that history, and cannot, therefore, be left unnoticed.
The circumstances which led to it may be briefly stated.
The Declaration on Maritime Law, signed at the
close of the Conferences of Paris in 1856, had received
the assent of by far the larger number of civilized
nations. Of the propositions embraced in it, the fourth
was already a settled maxim of public law, and the
third had nearly reached the same stage; but the rule
that enemy's goods are protected by the neutral flag had
been a subject of long controversy, whilst the employ-
ment of privateers had always been regarded as optional,
though open to many objections. The United States had
1 “1. Privateering is and remains abolished.
“2. The neutral flag covers enemy's goods, with the exception of
contraband of war.
“ 3. Neutral merchandize, except contraband of war, is not liable to
seizure under the flag of an enemy.
“ 4. Blockades to be binding must be effective, that is to say, main-
tained by a force sufficient really to prohibit (interdire réellement) access
to the coast of the enemy."
172
NEGOTIATION ON MARITIME LAW.
Chap. VIII. refused to become a party to it, judging that it was not
for their interest to relinquish the liberty of using pri-
vateers, unless upon condition that all private property
at sea, not contraband, should be declared exempt from
capture. This condition had been embodied in a
counter-proposal, which, from having been brought
forward by Mr. Marcy, when Secretary of State, had
become known as Mr. Marcy's Amendment. The
counter-proposal, however, had been withdrawn, in
April 1857, by Mr. Buchanan's Administration, which
was understood to be unwilling to give up, even on
these terms, the right of resorting to the issue of letters
of marque.
The British and French Governments, at the begin-
ning of the war, were desirous of ascertaining whether
the principles of the Declaration would, if not formally
accepted, be at any rate respected in practice by the two
belligerents. It was with this view that Lord Lyons and
M. Mercier, on the 15th June, waited on Mr. Seward
and proposed to read to him despatches which they
had received from their respective Governments. Mr.
Seward, as we have already seen, refused to receive any
communication which assumed that the revolted States
were to be regarded as belligerents by foreign Powers,
but said that, as to what the two Governments prac-
tically asked, “ he was ready to agree to all, and more
than all that was desired. The United States had
always held, and held still, that the flag covered the
cargo, and that the property of a friend was not liable
to seizure under an enemy's flag. The Government
admitted fully that it would be responsible for the acts of
any privateer to whom it should issue letters of marque.
He regarded these principles to be quite as applicable to
measures of coercion adopted against rebels as to the
operations of a regular war.”?
1 Page 159.
? Lord Lyons to Lord J. Russell, 17th June, 1861.
NEGOTIATION ON MARITIME LAW.
173
A
The report of this conversation does not prepare us to Chap. VIII.
find that the Government of the United States was at
the time when it occurred, and had for some time been,
not merely willing to adopt the Paris Declaration but
very desirous to conclude express Conventions on the
subject with both France and Great Britain. Instruc-
tions to negotiate such Conventions had in fact been
sent to Mr. Adams and Mr. Dayton as early as the
25th April. The three Governments and their respec-
tive Ministers appear to have been at cross purposes as
to the place where the negotiation was to be carried on,
and questions of form arose which had the effect of
protracting it; but Conventions, substantially identical,
were finally submitted in draft to Lord Russell and
M. Thouvenel, and by them accepted on behalf of their
respective Governments. Here, however, a difficulty
arose, which could not well have been unforeseen.
“ You will clearly understand,” Lord Russell had,
at the outset, written to Lord Lyons, so that Her
Majesty's Government cannot accept the renunciation
of privateering on the part of the Government of the
United States if coupled with the condition that they
should enforce its renunciation on the Confederate
States, either by denying their right to issue letters of
marque, or by interfering with the belligerent opera-
tions of vessels holding from them such letters of
marque, as long as they carry on hostilities on the
recognized principles, and under the admitted liabilities,
of the law of nations."
“I think,” Mr. Dayton had told Mr. Seward, “ that
the force and efficacy of an accession by our Govern-
ment to the Treaty of Paris is misunderstood. If I
understand the views of these foreign Governments,
such accession by us would merely bind our hands as
respects privateering; it would not at all enlarge our
1 Lord J. Russell to Lord Lyons, 18th May, 1861.
174
NEGOTIATION ON MARITIME LAW.
Chap. VIII. rights as against a belligerent Power not a party
to the Treaty, nor would it bind these European
Governments to enforce the laws of piracy as against
such belligerent Power not a party to the Treaty. If
they admit the Confederate States as a belligerent
Power, and recognize them for even commercial pur-
poses (which, I take it, is what they meant to do)
our accession to the Treaty of Paris will not change
their action in this respect. The status of these
rebellious States as respects privateering will remain
where it was. At least that is the view which I think
will be taken of this matter in England and France.”
“It is doubtful, perhaps," he wrote again, “whether
the other Powers will, under the circumstances, nego-
tiate for the accession of the United States to the Treaty
in question; but, should they do so, it will be with the
understanding that it imposes no new duties on them,
growing out of our domestic controversy."l
No one, indeed, can read Mr. Dayton's despatches
without perceiving that, though he obeyed his instruc-
tions by negotiating the Convention, he obeyed them
with reluctance. If the Convention was proposed with
a view—I will not say to entrap the Governments and
Great Britain and France, but to obtain a temporary
advantage which they did not mean to concede, he saw
clearly that this expectation was futile. If not, he
thought the time chosen for acceding to the Declaration
inopportune. And he was convinced, and rightly con-
vinced, that the engagement for which he was treating
would receive one interpretation in America and another
in Europe. The assumption on one side was, that
France and England would be bound to regard the Con-
federates as subjects of a Power which had renounced
privateering. The assumption on the other was, that,
for the purposes of the war, and so long as it might
1 Mr. Dayton to Mr. Seward, 7th and 12th June, 1861.
NEGOTIATION ON MARITIME LAW.
175
last, the Confederates must be regarded as a com- Chap. VIII.
munity virtually independent, not bound by Treaties
made by the Government of the United States, and at
liberty to resort to privateering.
On the 22nd June Mr. Seward wrote to Mr. Dayton:
“ We wish to act singly and in good faith with the French Govern-
ment. We understand, and shall continue to understand, that France
does not concede belligerent rights to the insurgents in contravention of
our sovereignty. We shall insist that she does nothing adverse to our
position, whatever may be sail to the contrary.
“ She has proposed to tell us that she thinks the Confederate States
are entitled to belligerent rights. We have declined to hear that. Ve
have not heard it. We shall continue to regard France as respecting
our Government, throughout the whole country, until she practically acts
in violation of her friendly obligations to us, as we understand them.
When she does that, it will be time enough to inquire whether, if we
accede to the Treaty of Paris, she could, after that, allow pirates upon
our commerce shelter in her ports; and what our remedy then should be.
We have no fear on this head."
On the 6th July he had a conversation with Lord
Lyons, of which we have the following account:-
“ He went on to tell me that he was endeavouring to disentangle
a complication which had been produced by Mr. Dayton at Paris.
Mr. Dayton had, he said, been instructed to state to the French Gorern-
ment that the Government of the United States preferred the proposal
of Mr. Marcy, by which private property would be altogether exempted
from capture; but that, nerei theless, they were willing, if necessary, to
accede at once to the Declaration of Paris 'pure and simple,' and to
postpone the discussion of Mr. Marcy's proposal to a more propitious
moment. Mr. Dayton, however, when he saw that France had accorded
belligerent rights to the rebels, became alarmed, and conceived that an
acceptance of the Declaration of Paris would be injurious to the United
States, inasmuch as it would preclude them from employing privateers
without imposing a similar restriction on the insurgents. He had, there-
fore, departed from his instructions, and made, on his own responsibility,
proposals intended to avert this danger. Now (Mr. Seward went on to
say) if, on the one hand, the Government of the United States declared
that they held their accession to the Paris Declaration to impose an obli-
gation on France with regard to all the States in the Union—the disloyal
as well as the loyal; or, if on the other hand, the Government of France
announced that it did not intend, by accepting the accession of the
United States, to contract any engagement affecting the States in revolt,
176
NEGOTIATION ON MARITIME LAW.
Chap. VIII. then Mr. Dayton's apprehensions might be well founded : but if nothing
was said on either side concerning this particular point, the accession of
the United States might be given at once, and accepted, and the effect of
it with regard to the States in revolt be determined afterwards."
On the same day he sent a long explanation to
Mr. Dayton. After referring to the “complication”
produced by “the irregular and extraordinary pro-
ceedings of the French Government in proposing to
take notice of the domestic disturbance which has
occurred in this country,” he proceeds :
“The reason why we wished it done immediately was, that we sup-
posed the French Government would naturally feel a deep anxiety about
the safety of their commerce, threatened distinctly with privateering by
the insurgents, while at the same time, as this Government had hereto-
fore persistently declined to relinquish the right of issuing letters of
marque, it would be apprehended by France that we should take
up
that
form of maritime warfare in the present domestic controversy. We
apprehended that the danger of such a case of depredation upon commerce
equally by the Government itself, and by its enemies, would operate as a
provocation to France and other commercial nations to recognize the
insurrectionary party in violation of our national rights and sovereignty.
On the contrary, we did not desire to depredate on friendly commerce
ourselves, and we thought it our duty to prevent such depredations by
the insurgents by executing our own laws, which make privateering by
disloyal citizens piracy, and punish its pursuit as such. We thought it
wise, just, and prudent to give, unasked, guarantees to France and other
friendly nations for the security of their commerce from exposure to such
depredations on either side, at the very moment when we were delivering
to them our protest against the recognition of the insurgents. The
accession to the Declaration of Paris would be the form in which these
guarantees could be given that for obvious reasons must be more unob-
jectionable to France and to other commercial nations than
any
other.
It was safe on our part, because we tendered it, of course, as the act of
this Federal Government, to be obligatory equally upon disloyal as upon
loyal citizens.
#
* 1
“ The matter stood in this plain and intelligible way until certain
declarations or expressions of the French Government induced you to
1 The passage omitted refers to Mr. Dayton's fruitless attempt to
re-introduce the “Marcy Amendment" into the Convention.
NEGOTIATION ON MARITIME LAW.
177
believe that they would recognize and treat the insurgents as a distinct Chap. VIII.
national power for belligerent purposes. It was not altogether unreason-
able that you, being at Paris, should suppose that this Government would
think itself obliged to acquiesce in such a course by the Government of
France. So assuming, you thought that we would not adhere to our
proposition to accede to the declaration, pure and simple, since such a
course would, as you thought, be effective to bind this Government with-
out binding the insurgents, and would leave France at liberty to hold us
bound, and the insurgents free from the obligations created by our adhe-
sion. Moreover, if we correctly understand your despatch on that
subject, you supposed that you might propose our adhesion to the Treaty
of Paris, not pure and simple, but with the addition of the Marcy propo-
sition in the first instance, and might afterwards, in case of its being
declined in that form, withdraw the addition, and then propose our
accession to the Declaration of Paris, pure and simple.
“ While you were acting on these views on your side of the Atlantic,
we on this side, not less confident in our strength than in our rights, as
you are now aware, were acting on another view, which is altogether
different, namely, that we shall not acquiesce in any declaration of the
Government of France that assumes that this Government is not now, as
it always has been, exclusive Sovereign, for war as well as for peace,
within the States and territories of the Federal Union, and over all
citizens, the disloyal and loyal all alike. We treat in that character,
which is our legal character, or we do not treat at all, and we do in no
way consent to compromise that character in the least degree; we do
not even suffer this character to become the subject of discussion.
Good faith and honour, as well as the same expediency which prompted
the proffer of our accession to the Declaration of Paris, pure and
simple, in the first instance, now require us to adhere to that proposi-
tion and abide by it; and we do adhere to it, not however, as a divided,
but as an undivided nation. The proposition is tendered to France not
as a neutral but as a friend, and the agreement is to be obligatory
upon the United States and France and all their legal dependencies just
alike.
“ The case was peculiar, and in the aspect in which it presented itself
to you portentous. We were content that you might risk the experi-
ment, so, however, that you should not bring any responsibility for
delay upon this Government. But you now see that by incorporating
the Marcy Amendment in your proposition, you have encountered the
very difficulty which was at first foreseen by us. The following nations
are parties to the Declaration of Paris, namely, Baden, Bavaria, Belgium,
Bremen, Brazils, Duchy of Brunswick, Chili, the Argentine Confedera-
tion, the Germanic Confederation, Denmark, the two Sicilies, the
Republic (f the Equator, the Roman States, Greece, Guatemala, Hayti,
Hamburg, Hanover, the two Hesses, Lubeck, Mecklenburg Strelitz,
Mecklenburg Schwerin, Nassau, Oldenburg, Parma, Holland, Peru,
Portugal, Saxony, Saxe Altenburg, Saxe-Coburg Gotha, Saxe Meiningen,
N
178
NEGOTIATION ON MARITIME LAW.
Chap. VIII. Saxe Weimar, Sweden, Switzerland, Tuscany, Wurtemburg, Anhalt
Dessau, Modena, New Granada, and Urugnay.
“ The great exigency in our affairs will have passed away~ for preser-
vation or destruction of the American Union-before we could bring all
these uations to unanimity on the subject, as you have submitted to
M. Thourenel. It is no time for propagandism, but for energetic action
to arrest the worst of all national calamities. We therefore expect you
now to renew the proposition in the form originally prescribed. But in
doing this you will neither unnecessarily raise a question about the
character in which this Government acts (being exclusive Sovereign),
nor, on the other hand, in any way compromise that character in any
degree. Whenever such a question occurs to hinder you, let it come up
from the other party in the negotiation. It will be time then to stop
and wait for such further instructions as the new exigency may require."
A
Mr. Dayton's view of the transaction in which he
was engaged appears, after this copious explanation, to
have been exactly the same as before. On the 5th of
August we find him writing to Mr. Adams :-
“ You say you do not comprehend the drift of the last paragraph in
Lord John's reply. I think I do, at least in part, and I shall not be sur-
prised if the meaning, which he has purposely wrapped up in that
general language, should in the end break off all negotiation. He may
not refer to this language again, but unless you ask its meaning before
the Treaty is negotiated, it will be used by them afterwards as an excuse
for not carrying it into effect as respects the insurrectionists of the
South. The paragraph states, “the engagement of Great Britain will
be prospective, and will not invalidate anything already done.' The
comment after the Treaty, predicated upon this language, will be: We
had declared before the Treaty that the Southern insurrectionists were a
belligerent party, aud entitled to belligerent rights (among which is the
right to issue letters of marque), and the Treaty was to be prospective
only, and not to invalidate anything already done. That, in other words,
it does not bind your disloyal citizens, recognized by us as a belligerent
party. I long ago wrote Mr. Seward that these Powers would, in my
judgment, either refuse to negotiate, or, if they did negotiate, it would
be with the understanding that it secured us no rights not already
conceded, and charged them with no duties not heretofore acknowledged.
It is advisable that we raise no question in advance in reference to
this matter, but it is necessary that we know what they mean
go along."
as we
It is clear that the two European Powers, had they
simply acceded to the Convention, as they were asked
PROPOSED DECLARATIONS.
179
to do, would have been pinned to an engagement which Chap. VIII.
the American Government was prepared to construe in
a sense very different from that wherein they naturally
regarded it; and that this discrepancy was perfectly
understood by the American negotiators, by whom the
Convention was drawn, and by whom it was proposed.
Understanding this, the envoys were instructed not to
raise the question themselves, but to let it, if raised at
all come from the other side; and they appear to have
obeyed their instructions. The French and English
Governments, however, would have been gifted with
little penetration had they not perceived the danger to
which they were asked to expose themselves. They saw
plainly that they had to choose between two courses
either to refuse to sign the Convention, or to declare
plainly at the time of signing in what sense they
apprehended it. They chose the latter alternative.
“My anticipations,” wrote Mr. Dayton, on the 22nd
August, “ are fully realized. Both Lord John Russell
and M. Thouvenel refuse to negotiate for an accession
by the United States to the Treaty of Paris of 1856,
except on the distinct understanding that it is to have
no bearing directly or indirectly on the question of our
Southern or domestic difficulty; and to render the
matter certain, they each propose to make a written
Declaration, simultaneous with the execution of the
Convention, of which I herewith send you a copy and
translation."
The proposed Declarations were as follows:
British Declaration.
“In affixing his signature to the Convention of this day, between Her
Majesty the Queen of Great Britain and Ireland and the United States
of America, the Earl Russell declares, by order of Her Majesty, that
Her Majesty does not intend thereby to undertake any engagement which
shall have any bearing direct or indirect on the internal differences now
prevailing in the United States."
N 2
180
FAILURE OF NEGOTIATION.
Chap. VIII.
French Declaration,
(Translation.)
“ In affixing his signature to the Convention concluded this day
between France and the United States, the Undersigned declares, in
execution of the orders of the Emperor, that the Government of His
Majesty does not intend to undertake by the said Convention any engage-
ment of a nature to implicate it directly or indirectly in the internal
conflict now existing in the United States."
1
The Government of the United States refused to
accept these Declarations, and the whole negotiation
fell to the ground, and was never renewed. Lord
Russell, however, on the 20th December, wrote to
Lord Lyons : “ You may speak to Mr. Seward about
letters of marque.
Should Great Britain and the
1 The despatches in which each Government explained and vindicated
its own course are :-
United States to Great Britain-Mr. Adams to Earl Russell, 23rd
August, 1861.
United States to France~Mr. Dayton to M. Thouvenel, 26th August,
1861; Mr. Seward to Mr. Dayton, 10th September, 1861.
Great Britain to United States-Earl Russell to Mr. Adams, 28th
August, 1861.
France to United States--M. Thouvenel to Mr. Dayton, 9th September,
1861.
“ The acceptance of such an explanation from one party," wrote
Mr. Adams to Lord Russell, on the 23rd August, “ would justify the
idea that some advantage is, or may be suspected to be, intended to be
taken by the other. The natural effect of such an accompaniment would
seem to be to imply that the Government of the United States might be
desirous at this time to take a part in the Declaration (of 1856], not
from any high purpose or durable policy, but with the view of securing
some small temporary object in the unhappy struggle which is going on
at home. Such an inference would spoil all the value that might be
attached to the act itself. The mere toleration of it would seem to be
equivalent to a confession of their own weakness. Rather than that such
a record should be made, it were a thousand times better that the Decla-
ration remain unsigned for ever.”
Mr. Dayton wrote lo M. Thouvenel in a like strain, yet with an
evident sense of relief at the turn which affairs had taken. It might
have been supposed that the refusal of the explanation, rather than the
acceptance of it, was calculated to suggest the inference which Mr. Adams
repudiated so indignantly.
NEGOTIATION ON MARITIME LAW.
181
United States ever unhappily be at war with one Chap. VIII.
another, Her Majesty will be ready to relinquish her
prerogative and abolish privateering as between the
two nations, provided the President would be ready to
make a similar engagement on the part of the United
States."1
I refrain from any comment on this negotiation.
No Southern privateer, I believe, ever entered any port
of Great Britain or France, or of their respective depen-
dencies. The Congress of the United States passed, on
the 3rd March, 1863, an Act authorizing the President,
in any foreign or domestic war, to issue letters of
marque, and make rules for the conduct of privateers
and disposal of their prizes. But this Act, the operation
of which was limited to three years, appears never to
have been put in force.
The history of an unofficial application made to
the Confederate States on the same subject is told in
the two following despatches. It will be seen that
the channel of communication was a private person,
instructed by the British and French Consuls at
Charleston, who had been themselves instructed by
the Ministers of their respective Governments at
Washington :-
66 Sir,
Lord Lyons to Consul Bunch.
" Washington, July 5, 1861.
“ The course of events having invested the States assuming the title
of the Confederate States of America with the character of belligerents,
it has become necessary for Her Majesty's Government to obtain from
the existing Government in those States securities concerning the proper
treatment of neutrals.
“ I am authorized by Lord John Russell to confide the negotiation on
this matter to you; and I have great satisfaction in doing so. In order
to make you acquainted with the views of Her Majesty's Government, I
transmit to you a duplicate of a despatch to me in which they are fully
stated.
1 Earl Russell to Lord Lyons, 20th December, 1861.
182
NEGOTIATION ON MARITIME LAW.
Chap. VIII.
“ It is essential, under present circumstances, that you should act
with great caution, in order to avoid raising the question of the recog-
nition of the new Confederation by Great Britain. On this account, I
think it unadvisable that you should go to Richmond, or place yourself
in direct communication with the Central Authority which is established
there.
“ The most convenient course will, probably, be for you to take
advantage of the intercourse which you naturally hold with Mr. Pickens,
the Governor of the State of South Carolina. I cannot doubt that if
you explain, verbally, to Mr. Pickens the views of Her Majesty's Govern-
ment, he will have no difficulty in inducing the Government at Richmond
to recognize, by an official act, the rights secured to neutrals by the
second and third Articles of the Declaration of Paris, and to admit its
own responsibility for the acts of privateers sailing under its letters of
marque.
“ The most perfect accord on this question exists between Ier
Majesty's Government and the Government of the Emperor of the French;
and instructions corresponding to these are sent to-day by the Emperor's
Minister here to the French Consul at Charleston. You will accordingly
enter into the frankest communication with your French colleague on the
subject, and will be careful to act in strict concert with him.
I
(Signed)
66 LYONS."
am, &c.
Consul Bunch to Lord Lyons.
(Extract.)
“ Charleston, August 16, 1861.
“ I have the honour to acknowledge the receipt, on the 19th ultimo,
of your Lordship's despatch of the 5th July, together with its inclosure,
viz , a despatch from Lord John Russell of the 17th May last, on the
subject of the proposed adhesion of the Confederate States of America
to the four Articles of the Declaration of Paris, and of the rights of
neutrals in the contest now raging in this country. I proceed to reply to
your Lordship's communication.
“ In so doing, I begin by requesting your Lordship to convey to Lord
John Russell the expression of my sincere gratitude for the honour which
he has been pleased to confer upon me by selecting me as the organ of
Her Majesty's Government in the negotiation to which your Lordship's
despatch and its inclosure have reference. I beg leave also to offer to
your Lordship my grateful acknowledgments for the kind manner in
which you have placed the matter in my hands.
" Immediately upon receipt of your Lordship's despatch, I proceeded
to put myself into communication with my French colleague, M. de Bel-
igny, who, as I found, had received instructions from M. Mercier of a
character precisely similar to those with which I was honoured. After
the fullest and frankest interchange of our respective views, we deter-
NEGOTIATION ON MARITIME LAW.
183
>
66 Mr.
mined upon the line of action which I am now about to report to your Chap. VIII.
Lordship.
“ Our attention was first directed to the suggestion contained in your
Lordship's despatch that, as it would be inexpedient for us to go to
Richmond, our negotiation might, probably, be advantageously conducted
through Mr. Pickens, the Governor of South Carolina, with whom you
naturally supposed that we were in frequent communication. But, not-
withstanding our earnest desire to meet in every way the wishes of our
chiefs, we were forced to the conclusion that it would be inexpedient to
approach him, for several reasons, amongst which it may suffice to men-
tion his absence from Charleston. He has been for some weeks past on
his plantation in the interior of the State.
" But we were so far fortunate as to secure the valuable services of
an agent in the person of Mr. who is well known to your Lordship,
and whose position seemed admirably to adapt him for the duties which
he was so obliging as to undertake.
left for Richmond on the 20th July. Arriving on the
22nd, he found that the President was with the army, whither Mr.
followed him ; but meeting him half-way between Richmond and
Manassas, returned with him to the capital on the 23rd. On the next
day Mr. —had an interview with his Excellency, and communicated
to him the mission with which he was charged. Mr. Davis expressed
no unwillingness to entertain the matter, although he signified his regret
that it should not have been more formally brought before him, as it
seemed to him that if the Declaration which it was sought to obtain
from the Government of the Confederate States was of sufficient import-
ance to require the overture now made to him, it was of equal consequence
that it should be made in a more regular manner.
“ His Excellency, as we understand, at once summoned a meeting of
the Cabinet, and the matter was placed in the hands of the Secretary of
State, Mr. Hunter, who has been appointed in the place of Mr. Toombs.
It was soon determined that Congress should be invited to issue a series
of Resolutions, by which the second, third, and fourth Articles of the
Declaration of the Treaty of Paris should be accepted by the Confederate
States. These Resolutions were passed on the 13th instant, approved on
the same day by the President, and I have the honour to inclose herewith
to your Lordship the copy of them which has been sent to Mr. by
the Secretary of State, to be delivered to M. de Belligny and myself.
“ Your Lordship will observe that, by these Resolutions, the Con-
federate States accept the second, third, and fourth Articles of the
Declaration of Paris, but by their Resolution declare, with reference to
the first Article, that they maintain the right of privateering as it has
been long established by the practice and recognized by the Law of
Nations. With respect to this Resolution, I beg to remark that the
wishes of Her Majesty's Government would seem to have been fully met,
for as no proposal was made that the Confederate Government should
abolish privateering, it could not be expected that they would do so of
184
NEGOTIATION ON MARITIME LAW.
1
Chap. VIII. their own accord, particularly as it is the arm upon which they most rely
for the injury of the extended commerce of their enemy. But the Secre-
tary of State has placed in the hands of Mr. for communication to
us, the inclosed copy of the instructions issued for the guidance of priva-
teers, and appeals to them, as well as to the character of the Government,
for a proof of their determination that the privateers shall conform them-
selves to the ordinary practices sanctioned by the Law of Nations. We
think that we may rely on the assurances thus given, supported, as they
are, by the language of the Resolution
“ The fact is, that the President and the Government are a good deal
annoyed at the refusal of France, England, and other nations to allow
prizes to be condemned in their ports, which they consider as somewhat
of a departure from a strict neutrality, and which they still hope may
be reconsidered as the contest advances. They also confidently expect
that the same anxiety for the mitigation of the evil consequences of the
present war, which has rendered the accession of the Confederate States
to the Declaration of Paris a matter of interest to France and England,
will induce other nations to insist upon the rigorous fulfilment by the
United States of the principle contained in the fourth Article, viz., the
effectiveness of the blockade instituted by that Power.
“ The negotiation having thus been brought to a close, the President
expressed to Mr. his hope that the existence of those extended rela-
tions of commercial intercourse which had rendered the application now
made to him by the Governments of France and England a necessity
in the view of those nations, would materially contribute to hasten a
formal recognition of the new Confederacy, which was disposed, on its
part, to show its full appreciation of a cordial and friendly understanding
between itself and the other nations of the earth, with which it was
prepared to enter into association on terms of equality.
" It only remains for me to express my hope that the manner in
which this negotiation has been conducted may meet with the approval
of your Lordship and of Her Majesty's Government. In common with
my French colleague, I am fully sensible of the obligations under which
we are to Mr. who has carried out what we conceived to be the
views of our respective Governments.”
(Inclosure.)
• Resolution touching certain Points of Maritime Law, and defining the
position of the Confederate States in respect thereto.
" Whereas the Plenipotentiaries of Great Britain, Austria, France,
Prussia, Russia, Sardinia, and Turkey, in a Conference held at Paris on
the 16th of April, 1856, made certain declarations concerning maritime
law, to serve as uniform rules for their guidance in all cases arising out
of the principles thus proclaimed;
“ And whereas, it being desirable not only to attain certainty and
CONSUL BUNCH.
185
uniformity, as far as may be practicable, in maritime law, but also to Chap. VIII.
maintain whatever is just and proper in the established usages of nations,
the Confederate States of America deem it important to declare the
principles by which they will be governed in their intercourse with the
rest of mankind: Now, therefore, be it
Resolved by the Congress of the Confederate States of America :-
“ 1st. That we maintain the right of privateering, as it has been long
established by the practice, and recognized by the Law, of Nations.
66 2nd. That the neutral flag covers enemy's goods, with the exception
of contraband of war.
“ 3rd. That neutral goods, with the exception of contraband of war,
are not liable to capture under enemy's flag.
“ 4th. That blockades, in order to be binding, must be effectual ; that
is to say, maintained by a force sufficient really to prevent access to the
coast of the enemy.
Signed by the President of Congress, on the 13th August, and
approved same day by the President of the Confederate States of
America."
This transaction gave so much offence to the
Government of the United States as to lead to the
revocation of Mr. Bunch's exequatur. Several charges
were made against him; but they were ultimately
reduced to the allegation that he had knowingly
violated a law, made during the troubled period of the
French Revolution, which“ forbids any person, not
specially appointed, or duly authorized or recognized,
by the President, from counselling, advising, aiding, or
assisting in any political correspondence with the
Government of any foreign State, with an intent to
influence the measures of any foreign Government, or
of any officer or agent thereof, in relation to any
disputes or controversies with the United States, or to
defeat the measures of their Government.”] The foreign
Government which Mr. Bunch was accused of “advising
or assisting in relation to disputes or controversies
with the United States, or to defeat the measures of
their Government,” was that of Great Britain. Lord
Russell pointed out that Mr. Bunch had, in reality,
11
1 Mr. Adams to Earl Russell, 21st November, 1861.
186
CONSUL BUNCH.
Chap. VIII. done nothing of the kind, and had offended neither
against the letter nor against the spirit of the law; but
he did not dispute the President's right to withdraw
the exequatur, whether on sufficient or on insufficient
grounds. Mr. Bunch continued to reside at Charleston
CHAPTER IX.
Case of the Trent.--Seizure of the Confederate Commissioners by
the Captain of the San Jacinto.-Instructions to Lord Lyons.-
Expressions of Opinion by several European Powers.--Release of
the Commissioners.--Observations.
THE controversies, such as they are, to which this
war gave rise, turn for the most part on the application
of familiar principles as to which British and American
jurists had previously no difference of opinion. But an
incident occurred in November 1861 which was to some
extent new, became the subject of lively discussion,
elicited expressions of opinion from several European
Powers, and is not without value as a precedent. It
created at the time some excitement in England; and
left behind, I fear, some lingering sensations of annoy-
ance and resentment in America.
The three persons whom the Confederate Govern-
ment had appointed in March to proceed as its agents
to Europe, had failed both in London and in Paris to
obtain any official recognition for their Government or
themselves. Lord Russell had received them on the
footing of private gentlemen and listened to what they
had to say, but had avoided correspondence, and re-
mained immovable in his refusal to enter into any
official communication. At the French Court they had
been equally unsuccessful. Disappointed, but not dis-
concerted, at this failure, Mr. Davis determined to
try the effect of a second and more formal mission.
Mr. James Mason, a Virginian of historic name and
great personal mark, who had been Chairman of the
188
THE TRENT.
Chap. IX. Committee of the Senate on Foreign Affairs and
American Minister in Paris, and Mr. John Slidell, of
Louisiana, who had represented the United States in
Mexico, were chosen for this employment, and furnished
with credentials respectively for the Courts of Great
Britain and France. They sailed from Charleston on
the night of the 12th October in the Confederate
steamer Theodora, unimpeded by the blockading ships ;
landed at Cardenas in Cuba, travelled to Havana, and
there took their places as passengers on board the Trent,
a British packet plying regularly between Vera Cruz
and the Danish island of St. Thomas. The packets on
this line carried the English mails under contract with
the Government, and were in connection at St. Thomas
with the steamers running from that island to South-
ampton. The Trent had on board more than sixty
passengers, a large quantity of specie, and a valuable
cargo.
Whilst the Commissioners were at Havana, it
had been visited by the United States' war-steamer
San Jacinto, which had been cruising for six weeks
in quest of the Sumter. Captain Wilkes, the officer
in command, having satisfied himself of the identity of
the Commissioners and ascertained their intended move-
ments, coaled and put to sea immediately, with the
design of intercepting the Trent on her passage. What
afterwards occurred is told in the report addressed
by Commander Williams, R.N., the Admiralty Agent
in charge of the mails on board the Trent, to his
superior officer at Southampton :-
"
66. Trent,' at Sea, November 9, 1861.
" There devolves on me the painful duty of reporting to you a
wanton act of aggression on this ship by the United States' war
screw-steamer San Jacinto, carrying a broadside of seven guns, and
a shell pivot-gun of heavy calibre on the forecastle, which took place
on the 8th instant, in the Bahama Channel, abreast of the Paredon
lighthouse.
- The Trent left Havana at 8 A.M. on the 7th instant, with Her
Majesty's mails for England, having on board a large freight of specie,
THE TRENT.
189
as well as numerous passengers, amongst whom were Messrs. Mason Chap. IX.
and Slidell, the former accredited with a special mission from the
Confederate States to the Government of Great Britain, and the latter
to the French Government, with their respective Secretaries, Messrs.
McFarland and Eustis.
- Shortly after noon on the 8th, a steamer having the appearance
of a man-of-war, but not showing colours, was observed ahead, hove-
to; we immediately hoisted our ensign at the peak, but it was not
responded to until, on nearing her at 1:15 P.M., she fired a round shot
from her pivot-gun across our bows, and showed American colours.
Our engines were immediately slowed, and we were still approaching
her when she discharged a shell from her pivot-gun immediately across
our bows, exploding half a cable's length ahead of us. We then
stopped, when an officer with an armed guard of marines boarded us,
and demanded a list of passengers, which demand being refused, the
officer said that he had orders to arrest Messrs. Mason, Slidell, McFar-
land, and Eustis, and that he had sure information of their being
passengers in the Trent. Declining to satisfy him whether such
persons were on board or not, Mr. Slidell stepped forward, and
announced that the four persons he had named were then standing
before him under British protection, and that if they were taken on
board the San Jacinto, they must be taken vi et armis ; the Com-
mander of the Trent and myself at the same time protesting against
this illegal act, this act of piracy, carried out by brute force, as we had
no means of resisting the aggression, the San Jacinto being at the
time on our port beam, about 200 yards off, her ship's company at
quarters, ports open, and tompions out.
“Sufficient time being given for such necessaries as they might
require being sent to them, these gentlemen were forcibly taken out of
the ship, and then a further demand was made that the commander of
the Trent should proceed on board the San Jacinto ; but, as he
expressed his determination not to go unless forcibly compelled like-
wise, this latter demand was not carried into execution.
“At 3:40 we parted company, and proceeded on our way to St.
Thomas, on our arrival at which place I shall deliver to the Consul
duplicates of this letter to Lord Lyons, Sir Alexander Milne, Commo-
dore Dunlop, and the Consul-General at Havana.
“ I have, &c.
(Signed) “RICHARD WILLIAMS, Commander, R.N.,
“and Admiralty Agent in Charge of Mails."
To this report Commander Williams subsequently
added the following memorandum :-
“On Mr. Slidell's announcing that the four persons inquired for
were then standing before Lieutenant Fairfax under British protection,
and that if taken on board the San Jacinto they must be taken vi et
190
THE TRENT.
Chap. IX. armis, I addressed that officer in the following terms :—'In this ship I
am the representative of Her Britannic Majesty's Government, and in
the name of that Government, I protest against this illegal act, this
violation of international law-this act of piracy, which you would not
dare to attempt on a ship capable of resisting such aggression.'
" It was then that Lieutenant Fairfax waved his hand towards the
San Jacinto, and additional force was sent. The marines were
drawn up at the entry-port, bayonets fixed; and on Miss Slidell's
uttering an hysterical scream on her being separated from her father-
that is, on his breaking the window of his cabin and thrusting his
body through to escape from the distressing scene of forcible separa-
tion from his family—they rushed into the passage at the charge. There
were upwards of sixty armed men in all, and the aforesaid gentlemen
were then taken out of the ship, an armed guard on either side of
each seizing them by the collar of the coat. Every inducement was
held out, so far as importunate persuasion would go, to prevail on Mrs.
Slidell and Mrs. Eustis, with the son and three daughters of the
former, to accompany their husbands; but as they did not wish their
wives to be subjected to imprisonment (Lieutenant Fairfax having
replied to Mrs. Slidell's inquiry as to their disposal if they did accom-
pany them, that they would be sent to Washington), they remained on
board the Trent, and came on to England in La Plata.
“The ships getting somewhat further apart than when this affair
commenced, a boat came from the San Jacinto to request us to
approach nearer; to which I replied that they had the same power as
ourselves, and if they wished to be nearer to us, they had their own
remedy."
These statements were corroborated as to the ma-
terial facts by a written protest signed by the master of
the Trent on her arrival at St. Thomas.
Captain Wilkes's report of the transaction to the
Secretary of the Navy, after stating that he had been in
expectation of receiving a telegraphic despatch from the
American Consul-General at Havana giving the time of
the Trent's departure, proceeds :-
“In this also I was disappointed, and ran to the eastward some 90
miles, where the old Bahama Channel contracts to the width of 15 miles,
some 240 miles from the Havana, and in sight of the Paredon del Grande
lighthouse. There we cruised until the morning of the 8th, awaiting
the steamer, believing that, if she left at the usual time, she must pass
us about noon of the 8th, and we could not possibly miss her. At
11:40 A.M. on the 8th her smoke was first seen; at 12 m. our position
was to the westward of the entrance into the narrowest part of the
THE TRENT.
191
channel, and about 9 miles north-east from the lighthouse of Paredon Chap. IX.
del Grande, the nearest point of Cuba to us. We were all prepared for
her, beat to quarters, and orders were given to Lieutenant D. M. Fair-
fax to have two boats manned and armed to board her, and make
Messrs. Slidell, Mason, Eustis, and McFarland prisoners, and send them
immediately on board. The steamer approached and hoisted English
colours, our ensign was hoisted, and a shot was fired across her bow; she
maintained her speed and showed no disposition to heave-to; then a shell
was fired across her bow, which brought her to. I hailed that I
intended to send a boat on board, and Lieutenant Fairfax, with the
second cutter of this ship, was despatched.
this ship, was despatched. He met with some diffi-
culty, and remaining on board the steamer with a part of the boat's
crew, sent her back to request more assistance, the captain of the
steamer having declined to show his papers and passenger list, a force
became necessary to search her; Lieutenant James A. Greer was at
once despatched in the third cutter, also manned and armed.
“ Messrs. Slidell, Mason, Eustis, and McFarland were recognized, ,
and told they were required to go on board this ship. This they
objected to, until an overpowering force compelled them; much
persuasion was used, and a little force, and at about 2 o'clock they were
brought on board this ship, and received by me. Two other boats were
then sent to expedite the removal of their baggage and some stores,
when the steamer, which proved to be the Trent, was suffered to
proceed on her route to the eastward, and at 3.30 P.M. we bore away to
the northward and westward. The whole time employed was two
hours and thirteen minutes.
“I inclose you the statements of such officers who boarded the
Trent, relative to the facts, and also an extract from the log-book of
this ship.
It was my determination to have taken possession of the Trent,
and sent her to Key West as a prize, for resisting the search, and
carrying these passengers, whose character and objects were well
known to the captain; but the reduced number of my officers and crew,
and the large number of passengers on board, bound to Europe,
who would be put to great inconvenience, decided me to allow them to
proceed.
Finding the families of Messrs. Slidell and Eustis on board, I
tendered them the offer of my cabin for their accommodation to accom-
pany their husbands; this they declined, however, and proceeded in
the Trent.” 1
1 Moore's Record of the Rebellion, vol. iii, p. 322 (Documents). There
appears to have been no resistance to search, except that the master of
the Trent refused to produce his list of passengers, in which he was
wrong
192
THE TRENT.
Chap. IX.
No fault is to be found with the manner in which
Lieutenant Fairfax executed his orders. He did his
duty with propriety and forbearance, in the face of
some provocation from the passengers and officers of
the Trent, who were
excited and angry.
Nor
had the captives anything to complain of on board
the San Jacinto, where, as they acknowledged to
Captain Wilkes, on going ashore, they were treated
“ with great courtesy and attention.” They were
taken to Boston harbour, and there imprisoned in Fort
Warren.
The decision formed by the British Government
on receiving this grave intelligence was conveyed by
Lord Russell to Lord Lyons in a despatch dated
30th November. After reciting the circumstances, the
despatch proceeded as follows:-
“ It thus appears that certain individuals have been forcibly taken
from on board a British vessel, the ship of a neutral Power, while such
vessel was pursuing a lawful and innocent voyage, an act of violence
which was an affront to the British flag and a violation of international
law.
“Her Majesty's Government, bearing in mind the friendly relations
which have long subsisted between Great Britain and the United
States, are willing to believe that the United States' naval officer who
committed this aggression was not acting in compliance with any
authority from his Government, or that, if he conceived himself to be
so authorized, he greatly misunderstood the instructions which he had
received.
“For the Government of the United States must be fully aware
that the British Government could not allow such an affront to the
national honour to pass without full reparation, and Her Majesty's
Government are unwilling to believe that it could be the deliberate
intention of the Government of the United States unnecessarily to force
into discussion between the two Governments a question of so grave a
character, and with regard to which the whole British nation would
be sure to entertain such unanimity of feeling.
“Her Majesty's Government therefore trusts that when this matter
shall have been brought under the consideration of the Government of
the United States, that Government will, of its own accord, offer to the
British Government such redress as alone would satisfy the British
nation, namely, the liberation of the four gentlemen, and their delivery
to your Lordship in order that they may again be placed under British
-
THE TRENT.
193
protection, and a suitable apology for the aggression which has been . Chap. IX.
committed.
“Should these terms not be offered by Mr. Seward, you will propose
them to him.
“You are at liberty to read this despatch to the Secretary of State,
and if he shall desire it, you will give him a copy of it.” 1
A second despatch of the same date contained the
following additional instructions:-
“In my previous despatch of this date I have instructed you, by
command of Her Majesty, to make certain demands of the Government
of the United States.
“Should Mr. Seward ask for delay in order that this grave, and
painful matter should be deliberately considered, you will consent to a
delay not exceeding seven days. If, at the end of that time, no answer
is given, or if any other answer is given except that of a compliance
with the demands of Her Majesty's Government, your Lordship is
instructed to leave Washington with all the members of your Legation,
bringing with you the archives of the Legation, and to repair imme-
diately to London.
“If, however, you should be of opinion that the requirements of Her
Majesty's Government are substantially complied with, you may report
the facts to Her Majesty's Government for their consideration, and
remain at your post till you receive further orders.
“You will communicate with Vice-Admiral Sir A. Milne immediately
npon receiving the answer of the American Government, and
you
will
send him a copy of that answer, together with such observations as you
may think fit to make.
‘You will also give all the information in your power to the
Governors of Canada, Nova Scotia, New Brunswick, Jamaica, Ber-
muda, and such other of Her Majesty's Possessions as may be within
your reach.
Anxious, as it appears, to mitigate the effect of this
peremptory demand, made still more peremptory by the
difficulties which then surrounded the American Govern-
ment, Lord Russell added in a private letter:
“The despatches which were agreed to at the Cabinet yesterday,
and which I have signed this morning, impose upon you a disagreeable
task. My wish would be that at your first interview with Mr. Seward
you should not take my despatch with you, but should prepare him
1 Earl Russell to Lord Lyons, 30th November, 1861.
0
194
THE TRENT.
Chap. IX. for it, and ask him to settle with the President and the Cabinet what
course they would propose.
“The next time you should bring my despatch and read it to him
fully
“ If be asks what will be the consequence of his refusing com-
pliance, I think you should say that you wish to leave him and the
President quite free to take their own course, and that you desire to
abstain from anything like menace."
In the meanwhile, Captain Wilkes's exploit had been
received with general but not unanimous applause.
From his official superior, the Secretary of the Navy,
he received warm congratulations. “Your conduct in
seizing these public enemies has the emphatic approval
of this Department.” “The forbearance shown,” added
Mr. Welles, “in omitting to capture the Trent herself,
must not be permitted to constitute a precedent here-
after for infractions of neutral obligations.”] The House
of Representatives, which met on the 2nd December,
passed a resolution tendering to him the thanks of
Congress; and this was coupled with another, likewise
passed unanimously, by which the President was re-
quested to confine Mr. Mason and Mr. Slidell in felons'
cells, and treat them as persons convicted of infamous
crimes. But there were those who thought differently.
Doubts whether the act was warranted by public law, or
consistent with principles which America had always
cherished with peculiar jealousy, were freely expressed.
These doubts appear to have been shared by Mr. Seward
himself. Very early in December, he wrote to Mr. Adams
a despatch, which the latter was authorized to read to
Lord Russell, stating that Captain Wilkes's act had
been done without instructions from his Government,
that no decision had been formed upon the subject,
and that none would be formed without waiting for
any representations which might be made by Great
Britain.
1 Mr. Welles to Captain Wilkes, 30th November, 1861.
THE TRENT.
195
It was the good fortune of the British Government Chap. IX.
and people to be represented at Washington, during the
whole of the war, by a Minister who, to a thorough
acquaintance with his duties, added prudence, caution, a
most conciliatory temper, and an upright and truthful
character. Lord Lyons saw at once how critical was
the occasion. “I have deemed it right,” he wrote to
Lord Russell on the 19th November, " to maintain the
most complete reserve on the subject.”
“ To conceal the distress which I feel would be impossible, nor
would it, if possible, be desirable; but I have expressed no opinion on
the questions of international law involved; I have hazarded no con-
jecture as to the course which will be taken by Her Majesty's Govern-
ment. On the one hand, I dare not run the risk of compromising the
honour and inviolability of the British flag by asking for a measure of
reparation which may prove to be inadequate; on the other hand, I am
scarcely less unwilling to incur the danger of rendering a satisfactory
settlement of the question more difficult by making a demand which
may turn out to be unnecessarily great. In the present imperfect state
of my information I feel that the only proper and prudent course is to
wait for the orders which your Lordship will give with a complete
knowledge of the whole case.”
In communicating to Mr. Seward the demands of
Great Britain, which he did on the 19th December, he
punctually obeyed his private instructions. He after-
wards wrote:-
“I added, that Her Majesty's Government hoped that the Govern-
ment of the United States would of its own accord offer this reparation;
that it was in order to facilitate such an arrangement that I had come
to him without any written demand, or even any written paper at all
in my hand; that if there was a prospect of attaining this object, 1
was willing to be guided by him as to the conduct, on my part, which
would render its attainment most easy.
“Mr. Seward received my communication seriously, and with
dignity, but without any manifestation of dissatisfaction. Some further
conversation ensued in consequence of questions put by him, with a
1 “Lord Lyons, who although a man of prudent reserve, is at the
same time entirely truthful.”—Mr. Seward to Mr. Adams, 5th February,
1862.
02
---
196
THE TRENT.
Chap. IX. view to ascertain the exact character of the despatch. At the conclu-
sion he asked me to give him to-morrow to consider the question, and
to communicate with the President. On the day after he should, he
said, be ready to express an opinion with respect to the communication
I had made. In the meantime he begged me to be assured that he
was very sensible of the friendly and conciliatory manner in which I
had made it." i
The attention of other European Governments was by
this time fixed on a question which might become, by
its consequences, so important to all neutral Powers.
France, Austria, and Prussia took part in the discussion
of it by despatches addressed to their respective Ministers
at Washington
M. Thouvenel to M. Mercier.
"Monsieur,
Paris, le 3 Décembre, 1861.
“ L'arrestation de MM. Mason et Slidell à bord du paquebot
Anglais le Trent, par un croiseur Américain, a produit en France,
si non la même émotion qu'en Angleterre, au moins un étonnement et
une sensation extrêmes. L'opinion publique s'est aussitôt préoccupée
de la légitimité et des conséquences d'un acte semblable, et l'impres-
sion qu'elle en a ressentie n'a pas été un instant douteuse. Le fait lui
a paru tellement en désaccord avec les régles ordinaires du droit
international, qu'elle s'est plu à en faire exclusivement peser la
responsabilité sur le Commandant du San Jacinto. Il ne nous est
pas encore donné de savoir si cette supposition est fondée, et le
Gouvernement de l'Empereur à dû, dès lors, examiner aussi la
question que soulevait l'enlèvement des deux passagers du Trent.
Le désir de contribuer à prévenir un conflit, imminent peut-être, entre
deux Puissances pour lesquelles il est animé de sentiments également
amicaux, et le devoir de maintenir, à l'effet de mettre les droits de son
propre pavillon à l'abri de toute atteinte, certaines principes essentiels
à la sécurité des neutres, l'ont, après mûre réflexion, convaincu qu'il
ne pouvait en cette circonstance rester complètement silencieux.
“Si, à notre grand regret, le Cabinet à Washington était disposé à
approuver la conduite du Commandant du San Jacinto, ce serait en
considérant MM. Mason et Slidell comme des ennemis, ou en ne voyant
en eux que des rébelles. Dans l'un comme dans l'autre cas, il y
aurait un oubli extrêmement fâcheux de principes sur lesquels nous
avions toujours trouvé les Etats Unis d'accord avec nous.
“A quel titre, en effet, le croiseur Américain aurait-il, dans le
1 Lord Lyons to Earl Russell, 19th December, 1861.
THE TRENT.
197
On ne
premier cas, arrêté MM. Mason et Slidell ? Les Etats Unis ont admis Chap. IX.
avec nous, dans les Traités conclus entre les deux pays, que la liberté
du pavillon s'étendait aux personnes trouvées à bord, fussent-elles
ennemies de l'une des deux parties, à moins qu'il ne s'agit de gens de
guerre actuellement au service de l'ennemi. MM. Mason et Slidell
étaient donc, en vertu de ce principe que nous n'avons jamais rencontré
de difficulté à faire insérer dans nos Traités d'Amitié et de Commerce,
parfaitement libres sous le pavillon neutre de l’Angleterre.
prétendra pas, sans doute, qu'ils pouvaient être considérés comme contre-
bande de guerre. Ce qui constitue la contrebande de guerre n'est pas
encore, il est vrai, précisément fixé, les limites n'en sont pas absolument
les mêmes pour toutes les Puissances. Mais, en ce qui se rapporte aux
personnes, les stipulations spéciales qu'on rencontre dans les Traités
concernant les gens de guerre définissent nettement le caractère de
celles qui peuvent être saisies par les belligérants. Or, il n'est pas
besoin de démontrer que MM. Mason et Slidell ne sauraient être
assimilés aux personnes de cette catégorie. Il ne resterait, dès lors,
d'invoquer, pour expliquer leur capture, que ce prétexte qu'ils étaient
porteurs de dépêches officielles de l'ennemi. Or, c'est ici le moment de
rappeler une circonstance qui domine toute cette affaire et qui rend
injustifiable la conduite du croiseur Américain. Le Trent n'avait
pas pour destination un port appartenant à l'un des belligérants. Il
portait en pays neutre sa cargaison et ses passagers, et c'était de plus
dans un port neutre qu'il les avait pris. S'il était admissible que, dans
de telles conditions, le pavillon neutre ne couvrit pas complètement les
personnes et les marchandises qu'il transporte, son immunité ne serait
plus qu'un vain mot: à chaque instant, le commerce et la navigation
des Puissances tierces aurait à souffrir de leurs rapports innocents ou
même indirects avec l'un ou l'autre des belligérants. Ces derniers ne
se trouveraient plus seulement en droit d'exiger du neutre une entière
impartialité, de lui interdire toute immixtion aux actes d'hostilité; ils
apporteraient à sa liberté de commerce et de navigation des restrictions
dont le droit international moderne s'est refusé d'admettre la légitimité.
On en reviewdrait, en un mot, à des pratiques vexatoires contre
lesquelles, à d'autres époques, aucune Puissance n'a plus vivement
protesté que les Etats Unis.
“Si le Cabinet de Washington ne voulait voir dans les deux per-
sonnes arrêtés que des rébelles qu'il est toujours en droit de saisir, la
question, pour se placer sur un autre terrain, n'en saurait être résolu
davantage dans un sens favorable à la conduite du Commandant du
San Jacinto. Il y aurait, en pareil cas, méconnaissance du principe
qui fait d'un navire une portion du territoire de la nation dont il porte
le pavillon, et violation de l'immunité qui s'oppose à ce qu'un Souve-
rain étranger y exerce par conséquent sa juridiction. Il n'est pas
nécessaire, sans doute, de rappeler l'énergie avec laquelle, en toute
occasion, le Gouvernement des Etats Unis a défendu cette immunité
et le droit d'asile qui en est la conséquence.
)
198
THE TRENT.
Chap. IX.
“Ne voulant pas entrer dans une discussion plus approfondie des
questions soulevées par la capture de MM. Mason et Slidell, j'en ai dit
assez, je crois, pour établir que le Cabinet de Washington ne saurait,
sans porter atteinte à des principes dont toutes les Puissances neutres
sont également intéressées à assurer le respect, ni sans se mettre en
contradiction avec sa propre conduite jusqu'à ce jour, donner son
approbation aux procédés du Commandant du San Jacinto. En cet
état de choses, il n'a évidemment pas, selon nous, à hésiter sur la
détermination à prendre. Lord Lyons est déjà chargé de présenter
les demandes de satisfaction que le Gouvernement Anglais est dans
la nécessité de formuler, et qui consistent dans la relaxation immédiate
des personnes enlevées à bord du Trent, et dans l'envoi d'explications
qui ôtent à ce fait son caractère offensant pour le pavillon Britannique.
“ Le Gouvernement Fédéral s'inspirera d'un sentiment juste et
élevé en déférant à ces demandes. On chercherait vainement dans
quel but, dans quel intérêt il risquerait de provoquer, par une attitude
différente, une rupture avec la Grande Bretagne. Pour nous qui
verrions dans ce fait une complication déplorable à tous égards des
difficultés avec lesquelles le Cabinet de Washington a déjà à lutter, et
un précédent de nature à inquiéter sérieusement toutes les Puissances
restées en dehors du conflit actuel, nous croyons donner un témoignage
de loyale amitié au Cabinet de Washington en ne lui laissant pas
ignorer, en cette circonstance, notre manière de voir. Je vous invite
donc, Monsieur, à saisir la première occasion de vous en ouvrir
franchement avec Mr. Seward, et, s'il vous en fait la demande, de
lui remettre une copie de cette dépêche.
“Recevez, &c.
(Signé) 66 THOUVENEL."
.
Count Rechberg to M. de Hulsemann.
“ (Confidentiel.)
“ Vienne, le 18 Décembre, 1861.
“ Le différend survenu entre le Gouvernement des Etats Unis et
celui de la Grande Bretagne par suite de l'arrestation de Messrs. Slidell
et Mason effectué par le capitaine du navire de guerre Américain le
San Jacinto à bord du paquebot Anglais le Trent, n'a pu manquer de
fixer la plus sérieuse attention du Cabinet Impérial.
"Plus nous attachons d'importance au maintien des bonnes rela-
tions entre les Etats Unis et l'Angleterre, plus nous avons dû regretter
un incident qui est venu ajouter une aussi grave complication à une
situation déjà hérissé de difficultés.
“Sans avoir l'intention d'entrer ici dans un examen de la question
de droit, nous ne saurions pourtant méconnaître que d'après les notions
de droit international adoptés par toutes les Puissances, et que le
Gouvernement Américain lui-même a souvent prises pour règle de
conduite, l'Angleterre ne pouvait guère se dispenser, dans le cas
THE TRENT.
199
présent, de réclamer contre l'atteinte portée à son pavillon, et d'en Chap. IX.
demander une juste réparation. Il nous semble au surplus que les
demandes formulées à cet égard par le Cabinet de St. James n'ont rien
de blessant pour le Cabinet de Washington, et que celui-ci pourra faire
acte d'équité et de modération sans le moindre sacrifice pour sa
dignité.
“En prenant conseil des règles qui guident les relations inter-
nationales, ainsi que des considérations d'une politique éclairée, plutôt
que des manifestations produites par une surexcitation du sentiment
national, le Gouvernement des Etats Unis, nous nous plaisons à
l'espérer, apportera dans son appréciation tout le calme que la gravité
du cas exige, et jugera convenable de s'arrêter à un parti qui, en
préservant d'une rupture les rapports entre deux grands Etats avec
lesquels l'Autriche est également liée d'amitié, sera propre à prévenir
les graves perturbations que l'éventualité d'une guerre ne pourrait
manquer d'entrainer, tant pour chacune des parties contendantes que
pour les affaires du globe en général.
“Veuillez, M. le Chevalier, porter les réflexions qui précèdent à la
connaissance de Mr. Seward, et nous rendre compte de la manière dont
M. le Ministre aura accueilli votre communication.
“Recevez, &c.
(Signé) 6. RECHBERG."
Count Bernstorff to Baron Gerolt.
(Translation.)
“M. le Baron,
Berlin, December 25, 1861.
“The maritime operations undertaken by. President Lincoln against
the Southern Seceding States could not, from their very commence-
ment, but fill the King's Government with apprehensions lest they
should result in possible prejudice to the legitimate interests of neutral
Powers.
“These apprehensions have unfortunately proved fully justified
by the forcible seizure on board the neutral mail-packet the Trent,
and the abduction therefrom, of Messrs. Slidell and Mason by the Com-
mander of the United States' man-of-war the San Jacinto.
“ This occurrence, as you can well imagine, has produced in
England and throughout Europe the most profound sensation, and
thrown not Cabinets only, but also public opinion, into a state of the
most excited expectation. For, although at present it is England only
which is immediately concerned in the matter, yet, on the other hand,
it is one of the most important and universally recognized rights of the
neutral flag which has been called into question.
“I need not here enter into a discussion of the legal side of the
question. Public opinion in Europe has, with singular unanimity,
pronounced in the most positive manner for the injured party. As far
as we are concerned, we have hitherto abstained from expressing our.
mohet
200
THE TRENT.
Chap. IX, selves to you upon the subject, because in the absence of any reliable
information we were in doubt as to whether the Captain of the San
Jacinto, in the course taken by him, had been acting under orders
from his Government or not. Even now we prefer to assume that
the latter was the case. Should the former supposition, however, turn
out to be the correct one, we should consider ourselves under the
necessity of attributing greater importance to the occurrence, and to
our great regret we should find ourselves constrained to see in it
not an isolated fact but a public menace offered to the existing rights
of all neutrals.
'We have as yet no certain information as to the demands made
by England on the American Cabinet, upon the acceptance of which the
maintenance of peace appears to depend. As far, however, as our
information reaches on the subject, we are convinced that no conditions
have been put forward by the British Government which could justly
offend President Lincoln's sense of honour.
“His Majesty the King, filled with the most ardent wishes for the
welfare of the United States of North America, has commanded me to
advocate the cause of peace with President Lincoln through your
instrumentality, to the utmost of my power. We should reckon our-
selves fortunate if we could in this wise succeed in facilitating the
peaceful solution of a conflict from which the greatest dangers might
arise. It is possible, however, that the President has already taken
his decision and announced it. Whatever that decision may be, the
King's Government, when they reflect upon the uninterrupted relations
of friendship and amity which have existed between Prussia and the
United States ever since the latter were founded, will derive satis-
faction from the thought of having laid with the most unreserved
candour their views of this occurrence before the Cabinet of Wash-
ington and expressed the wishes which they entertain in connection
with it.
“You will read this despatch without delay to the Secretary of
State for Foreign Affairs, and, should be desire it, you will give him a
copy of it. I shall await your report upon the instructions contained
in this despatch, and I avail, &c.
(Signed) “ BERNSTORFF.”
The Russian Government expressed the same opinions
and the same anxieties, though not in a public despatch.
Baron Brunnow wrote at once from London to his col-
league at Washington, strongly condemning the seizure,
and advising reparation; and Prince Gortschakoff wrote
to Washington and London private letters approving the
steps taken by Baron Brunnow.
THE TRENT.
201
The French despatch was communicated to Mr. Chap. IX.
.Seward on the 25th ; and an expression of opinion so
clear and assured made it easier, perhaps, for the
American Government to take a course which, though
imperiously dictated by consistency and true policy,
nevertheless required some courage and some conquest
over national pride. The President resolved to disavow
formally the act of his officer, and to surrender the
prisoners. Mr. Seward, on the 26th, informed Lord
Lyons of this decision, adding that the discretion and
friendly spirit which the Minister had shown throughout,
from the day on which intelligence of the seizure had
reached Washington, had contributed more than any-
thing else to the settlement of the question. A long
and very elaborate note, intended to define the position
which the Government thought it right to assume, and
to explain the reasons by which it desired to be under-
stood as having been actuated, immediately followed this
communication :
Mr. Seward to Lord Lyons.
Department of State, Washington,
"My Lord,
“ December 26, 1861.
“Earl Russell's despatch of November 30th, a copy of which you
have left with me at my request, is of the following effect, namely:
“That a letter of Commander Williams, dated Royal Mail Contract
Packet-boat Trent, at sea, November 9th, states that that vessel left
Havana on the 7th November with Her Majesty's mails for England,
having on board numerous passengers. Shortly after noon on the 8th
of November, the United States' war-steamer San Jacinto, Captain
Wilkes, not showing colours, was observed ahead. That steamer on
being neared by the Trent, at 1 o'clock 15 minutes in the afternoon,
fired a round shot from a pivut-gun across her bows, and showed
American colours. While the Trent was approaching slowly towards
the San Jacinto, she discharged a shell across the Trent's bows,
which exploded at half a cable's length before her. The Trent then
stopped, and an officer with a large armed guard of marines boarded
her. The officer said he had orders to arrest Messrs. Mason, Slidell,
Mc Farland, and Eustis, and had sure information that they were
passengers in the Trent.
While some parley was going on upon
this matter, Mr. Slidell stepped forward and said to the American
officer that the four persons he had named were standing before him.
202
THE TRENT.
Chap. IX. The Commander of the Trent and Commander Williams protested
against the act of taking those four passengers out of the Trent,
they then being under the protection of the British flag; but the San
Jacinto was at this time only 200 yards distant, the ship's company at
quarters, her ports open and tompions out, and so resistance was out of
the question. The four persons before named were then forcibly taken
out of the ship. A farther demand was made that the Commander of
the Trent should proceed on board the San Jacinto, but he said he
would not go unless forcibly compelled likewise, and this demand
was not insisted upon.
Upon this statement Earl Russell remarks, that it thus appears
that certain individuals have been forcibly taken from on board a
British vessel, the ship of a neutral Power, while that vessel was
pursuing a lawful and innocent voyage—an act of violence which was
an affront to the British flag, and a violation of international law.
“ Earl Russell next says that Her Majesty's Government, bearing
in mind the friendly relations which have long subsisted between
Great Britain and the United States, are willing to believe that the
naval officer who committed this aggression was not acting in com-
pliance with any authority from his Government, or that, if he conceived
himself to be so authorized, he greatly misunderstood the instructions
wbich he had received.
“Earl Russell argues that the United States must be fully aware
tliat the British Government could not allow such an affront to the
national honour to pass without full reparation, and they are willing to
believe that it could not be the deliberate intention of the Government
of the United States unnecessarily to force into discussion between the
two Governments a question of so grave à character, and with regard
to which the whole British nation would be sure to entertain such
unanimity of feeling.
“Earl Russell, resting upon the statement and the argument which
I have thus recited, closes with saying that Her Majesty's Government
trust that when this matter shall have been brought under the consi-
deration of the Government of the United States, it will of its own
accord offer to the British Government such redress as alone could
satisfy the British nation, namely, the liberation of the four prisoners
taken from the Trent, and their delivery to your Lordship, in order
that they may again be placed under British protection, and a suitable
apology for the aggression which has been committed. Earl Russell
finally instructs you to propose these terms to me, if I should not first
offer them on the part of this Government.
“ This despatch has been submitted to the President. The British
Government has rightly conjectured, what it is now my duty to state,
that Captain Wilkes, in conceiving and executing the proceeding in
question, acted upon his own suggestions of duty, without any direc-
tion or instruction, or even foreknowledge of it, on the part of this
Government. No directions had been given to him or any other naval
THE TRENT.
203
1
officer to arrest the four persons named, or any of them, on the Trent, Chap. IX.
or on any other British vessel, or on any other neutral vessel, at the
place where it occurred or elsewhere. The British Government will
justly infer from these facts that the United States not only have had
no purpose, but even no thought, of forcing into discussion the question
which has arisen, or any other which could affect in any way the
sensibilities of the British nation.
“It is true that a round shot was fired by the San Jacinto from
her pivot-gun when the Trent was distantly approaching. But as
the facts have been reported to this Government, the shot was never-
theless intentionally fired in a direction so obviously divergent from the
course of the Trent as to be quite as harmless as a blank shot, while
it should be regarded as a signal.
“So also we learn that the Trent was not approaching the San
Jacinto slowly when the shell was fired across her bows; but, on the
contrary, the Trent was, or seemed to be, moving under a full head
of steam, as if with a purpose to pass the San Jacinto.
“We are informed also that the boarding-officer (Lieutenant
Fairfax) did not board the Trent with a large armed guard, but he
left his marines in his boat when he entered the Trent. He stated
his instructions from Captain Wilkes to search for the four persons
named, in a respectful and courteous, though decided, manner; and he
asked the Captain of the Trent to show his passenger list, which
was refused. The Lieutenant, as we are informed, did not employ
absolute force in transferring the passengers, but he used just so much
was necessary to satisfy the parties concerned that refusal or
resistance would be unavailing.
“So also we are informed that the Captain of the Trent was
not at any time, or in any way, required to go on board the San
Jacinto.
“ These modifications of the case, as presented by Commander
Williams, are based upon our official reports.
“I have now to remind your Lordship of some facts which doubt-
lessly were omitted by Earl Russell with the very proper and becoming
motive of allowing them to be brought into the case on the part of the
United States, in the way most satisfactory to this Government.
“These facts are, that at the time the transaction occurred, an
insurrection was existing in the United States, which this Government
was engaged in suppressing by the employment of land and naval
forces; that in regard to this domestic strife, the United States consi-
dered Great Britain as a friendly Power, while she had assumed for
herself the attitude of a neutral; and that Spain was considered in the
same light, and had assumed the same attitude as Great Britain.
" It had been settled by correspondence that the United States and
Great Britain mutually recognized, as applicable to this local strife,
these two Articles of the Declaration made by the Congress of Paris in
1856, viz., that the neutral or friendly flag should cover enemy's goods,
as
204
THE TRENT.
Chap. IX. not contraband of war; and that neutral goods, not contraband of war,
are not liable to capture under an enemy's flag. These exceptions of
contraband from favour were a negative acceptance by the parties of
the rule hitherto everywhere recognized as a part of the law of nations,
that whatever is contraband is liable to capture and confiscation in all
cases.
“James M. Mason and McFarland are citizens of the United States
and residents of Virginia. John Slidell and George Eustis are citizens
of the United States, and residents of Louisiana. It was well known
at Havana when these parties embarked on the Trent, that James
M. Mason was proceeding to England in the affected character of
Minister Plenipotentiary to the Court of St. James', under a pretended
Commission from Jefferson Davis, who had assumed to be President of
the insurrectionary party in the United States, and McFarland was
going with him in a like unreal character of Secretary of Legation to
the pretended Mission. John Slidell, in similar circumstances, was
going to Paris as a pretended Minister to the Emperor of the French;
and George Eustis was the chosen Secretary of Legation for that
simulated Mission. The fact that these persons had assumed such
characters has been since avowed by the same Jefferson Davis in a
pretended Message to an unlawful and insurrectionary Congress. It
was, as we think, rightly presumed that these Ministers bore pretended
credentials and instructions, and such papers are in the law known as
despatches. We are informed by our Consul at Paris that these
despatches having escaped the search of the Trent, were actually
conveyed and delivered to emissaries of the insurrection in England.
Although it is not essential, yet it is proper to state, as I do also
upon information and belief, that the owner and agent, and all the
officers of the Trent, including the Commander Williams, had
knowledge of the assumed characters and purposes of the persons
before-named when they embarked on that vessel.
“Your Lordship will now perceive that the case before us, instead
of presenting a merely flagrant act of violence on the part of Captain
Wilkes, as might well be inferred from the incomplete statement of it
that went up to the British Government, was undertaken as a simple,
legal, and customary belligerent proceeding by Captain Wilkes to
arrest and capture a neutral vessel engaged in carrying contraband of
war for the use and benefit of the insurgents.
“The question before us is, whether this proceeding was authorized
by, and conducted according to, the law of nations.
"It involves the following inquiries :-
“Ist. Were the persons named and their supposed despatches
contraband of war?
“ 2nd. Might Captain Wilkes lawfully stop and search the Trent for
these contraband persons and despatches ?
* 3rd. Did he exercise that right in a lawful and proper manner ?
“ 4th. Having found the contraband persons on board, and in
THE TRENT.
205
Chap. IX.
!
presumed possession of the contraband despatches, had he a right to
capture the persons ?
“5th. Did he exercise that right of capture in the manner allowed
and recognized by the law of nations ?
“If all these inquiries shall be resolved in the affirmative, the
British Government will have no claim for reparation.
“I address myself to the first inquiry, namely, Were the four
persons mentioned, and their supposed despatches, contraband ?
“Maritime law so generally deals, as its professors say, in rem, that
is, with property, and so seldom with persons, that it seems a straining
of the term 'contraband' to apply it to them. But persons, as well
as property, may become contraband, since the word means broadly
'contrary to proclamation, prohibited, illegal, unlawful.' All writers
and judges pronounce naval or military persons in the service of the
enemy contraband. Vattel says, war allows us to cut off from an
enemy all his resources, and to hinder him from sending ministers to
solicit assistance; and Sir William Scott says, You may stop the
Ambassador of your enemy on his passage. Despatches are not less
clearly contraband, and the bearers or couriers who undertake to carry
them fall under the same condemnation.
“A subtlety might be raised whether pretended Ministers of an
usurping Power, not recognized as legal by either the belligerent or the
neutral, could be held to be contraband. But it would disappear on
being subjected to what is the true test in all cases, namely, the spirit of
the law. Sir William Scott, speaking of civil magistrates who were
arrested and detained as contraband, says, 'It appears to me on
principle to be but reasonable that when it is of sufficient importance
to the enemy that such persons shall be sent out on the public service
at the public expense, it should afford equal ground of forfeiture against
the vessel that may be let out for a purpose so intimately connected
with the hostile operations.'
“I trust that I have shown that the four persons who were taken
from the Trent by Captain Wilkes, and their despatches, were contra-
band of war.
“ The second inquiry is, Whether Captain Wilkes had a right by the
law of nations to detain and search the Trent.
“ The Trent, though she carried mails, was
contract or
merchant-vessel, a common carrier for hire. Maritime law knows
only three classes of vessels-vessels of war, revenue vessels, and
merchant-vessels. The Trent falls within the latter class. What-
ever disputes have existed concerning a right of visitation or search in
time of peace, none, it is supposed, has existed in modern times about
the right of a belligerent in the time of war to capture contraband in
neutral and even friendly merchant-vessels, and of the right of visita-
tion and search in order to determine whether they are neutral and are
documented as such according to the law of nations.
“I assume in the present case what, as I read British authorities, is
a
*
206
THE TRENT.
Chap. IX. regarded by Great Britain herself as true maritime law, that the
circumstance that the Trent was proceeding from a neutral port to
another neutral port does not modify the right of the belligerent
captor.
“The third question is, Whether Captain Wilkes exercised the
right of search in a lawful and proper manner. If any doubt hung
over this point, as the case was presented in the statement of it adopted
by the British Government, I think it must already have passed away
before the modification of that statement which I have already sub-
mitted,
"I proceed to the fourth inquiry, namely, Having found the
suspected contraband of war on board the Trent, had Captain Wilkes
a right to capture the same? Such a capture is the chief, if not
the only recognized object of the permitted visitation and search.
The principle of the law is, that the belligerent exposed to danger may
prevent the contraband persons or things from applying themselves or
being applied to the hostile uses or purposes designed. The law is so
very liberal in this respect, that, when contraband is found on board a
neutral vessel, not only is the contraband forfeited, but the vessel,
which is the vehicle of its passage or transportation, being tainted, also
becomes contraband, and is subjected to capture and confiscation.
“Only the fifth question remains, namely, Did Captain Wilkes
exercise the right of capturing the contraband in conformity with the
law of nations ?
" It is just here that the difficulties of the case begin.
“What is the manner which the law of nations prescribes for
disposing of the contraband, when you have found and seized it on
board of the neutral vessel ? The answer would be easily found, if the
question were what you shall do with the contraband vessel. You
must take or send her into a convenient port, and subject her to a
judicial prosecution there in Admiralty, which will try and decide the
questions of belligerency, neutrality, contraband, and capture. So
again you would promptly find the same answer, if the question were,
What is the manner of proceeding prescribed by the law of nations in
regard to the contraband, if it be property or things of material or
pecuniary value? But the question here concerns the mode of proce-
dure in regard, not to the vessel that was carrying the contraband, nor
yet to contraband things which worked the forfeiture of the vessel, but
to contraband persons.
" The books of law are dumb; yet the question is as important as
it is difficult. First, the belligerent captor has a right to prevent the
contraband officer, soldier, sailor, minister, messenger, or courier, from
proceeding in his unlawful voyage, and reaching the destined scene of
his injurious service. But, on the other hand, the person captured may
be innocent, that is, he may not be contraband: he therefore has a
right to a fair trial of the accusation against him. The neutral State
that has taken him under its flag is bound to protect him, if he is not
-
THE TRENT.
207
band persons.
contraband, and is therefore entitled to be satisfied upon that important Chap. IX.
question. The faith of that State is pledged to his safety, if innocent,
as its justice is pledged to his surrender, if he is really contraband.
Here are conflicting claims, involving personal liberty, life, honour, and
duty. Here are conflicting national claims, involving welfare, safety,
honour, and empire. They require a tribunal and a trial. The captors
and the captured are equals, the neutral and the belligerent State are
equals.
“ While the law authorities were found silent, it was suggested at an
early day by this Government, that you should take the captured
persons into a convenient port, and institute judicial proceedings there
to try the controversy. But only Courts of Admiralty have jurisdic.
tion in maritime cases, and these Courts have formulas to try only
claims to contraband chattels, but none to try claims concerning contra-
The Courts can entertain ro proceedings and render no
judgment in favour of or against the alleged contraband men.
“It was replied, All this is true, but you can reach in those Courts
a decision which will have the moral weight of a judicial one, by a
circuitous proceeding. Convey the suspected men together with the
suspected vessel into port, and try there the question whether the
vessel is contraband. You can prove it to be so by proving the
suspected men to be contraband, and the Court must then determine
the vessel to be contraband. If the men are not contraband the vessel
will escape condemnation. Still there is no judgment for or against the
captured persons ; but it was assumed that there would result from the
determination of the Court concerning the vessel a legal certainty
concerning the character of the men.
“ This course of proceeding seemed open to many objections. It
elevates the incidental, inferior, private interest, into the proper place
of the main, paramount, public one, and possibly it may make the
fortunes, the safety, or the existence of a nation depend on the accidents
of a merely personal and pecuniary litigation. Moreover, when the
judgment of the Prize Court upon the lawfulness of the capture of the
vessel is rendered, it really concludes nothing, and binds neither the
belligerent State nor the neutral, upon the great question of the dispo-
sition to be made of the captured contraband persons. That question
is still to be really determined, if at all, by diplomatic arrangement or
by war.
“ One may reasonably express his surprise when told that the law
of nations has furnished no more reasonable, practical, and perfect
mode than this of determining questions of such grave import between
Sovereign Powers. The regret we may feel on the occasion is, never-
theless, modified by the reflection that the difficulty is not altogether
anomalous.
“ Similar and equal deficiencies are found in every system of muni-
cipal law, especially in the system which exists in the greater portion
of Great Britain and the United States. The title to personal property
208
THE TRENT.
Chap. IX.
can hardly ever be resolved by a Court without resorting to the fiction
that the claimant has lost and the possessor has found it, and the title
to real estate is disputed by real litigants under the names of imaginary
persons. It must be confessed, however, that while all aggrieved
nations demand, and all impartial ones concede, the need of some form
of judicial process in determining the character of contraband persons,
no other form than the illogical and circuitous one thus described exists,
nor has any other yet been suggested. Practically, therefore, the choice
is between that judicial remedy, or no judicial remedy whatever.
“ If there be no judicial remedy, the result is that the question
must be determined by the captor himself on the deck of the prize-
vessel. Very grave objections arise against such a course. The captor
is armed, the neutral is unarmed. The captor is interested, prejudiced,
and perhaps violent; the neutral, if truly neutral, is disinterested, sub-
dued, and helpless. The tribunal is irresponsible, while its judgment
is carried into instant execution. The captured party is compelled to
submit, though bound by no legal, moral, or Treaty obligation to
acquiesce. Reparation is distant and problematical, and depends at
last on the justice, magnanimity, or weakness of the State in whose
behalf and by whose authority the capture was made. Out of these
disputes reprisals and wars necessarily arise, and these are so frequent
and destructive that it may well be doubted whether this form of
remedy is not a greater social evil than all that could follow, if the
belligerent right of search were universally renounced and abolished
for ever.
But carry the case one step further. What if the State
that has made the capture unreasonably refuse to hear the complaint
of the neutral, or to redress it? In that case the very act of capture
would be an act of war-of war begun without notice, and, possibly,
entirely without provocation.
“ I think all unprejudiced minds will agree that, imperfect as the
present judicial remedy may be supposed to be, it would be, as a
general practice, better to follow it than to adopt the summary one of
leaving the decision with the captor and relying upon diplomatic
debates to review bis decision. Practically, it is a question of choice
between law, with its imperfections and delays, and war with its evils
and desolations.
"Nor is it ever to be forgotten that neutrality, honestly and justly
preserved, is always the harbinger of peace, and, therefore, is the
common interest of nations, which is only saying that it is the interest
of humanity itself.
“At the same time it is not to be denied that it may sometimes
happen that the judicial remedy will become impossible, as by the
shipwreck of the prize vessel, or other circumstances which excuse the
captor from sending or taking her into port for confiscation. In such
a case the right of the captor to the custody of the captured persons,
and to dispose of them, if they are really contraband, so as to defeat
their unlawful purposes, cannot be reasonably be denied. What rule
THE TRENT.
209
shall be applied in such a case ? Clearly the captor ought to be Chap. IX.
required to show that the failure of the judicial remedy results from
circumstances beyond his control and without his fault, otherwise he
would be allowed to derive advantages from a wrongful act of his
own.
“In the present case, Captain Wilkes, after capturing the contra-
band persons and making prize of the Trent, in what seems to us a
perfectly lawful manner, instead of sending her into port, released her
from the capture, and permitted her to proceed with her whole cargo
upon her voyage. He thus effectually prevented the judicial examina-
tion which might otherwise have occurred.
“If now the capture of the contraband persons and the capture of
the contraband vessel are to be regarded not as two separable or dis-
tinct transactions under the Law of Nations, but as one transaction,
one capture only, then it follows that the capture in this case was left
unfinished, or was abandoned. Whether the United States have a
right to retain the chief public benefits of it, namely, the custody of
the captured persons, on proving them to be contraband, will depend
upon the preliminary question--whether the leaving of the transaction
unfinished was necessary, or whether it was unnecessary and therefore
voluntary. If it was necessary, Great Britain, as we suppose, must of
course waive the defect, and the consequent failure of the judicial
remedy. On the other hand, it is not seen how the United States can
insist upon her waiver of that judicial remedy if the defect of the
capture resulted from an act of Captain Wilkes, which would be a
fault on their own side.
Captain Wilkes has presented to this Government his reasons for
releasing the Trent: -
“I forbore to seize her,' he says, 'in consequence of my being so
reduced in officers and crew, and the derangement it would cause inno-
cent persons, there being a large number of passengers who would
have been put to great loss and inconvenience, as well as disappoint-
ment, from the interruption it would have caused them in not being able
to join the steamer from St. Thomas to Europe. I therefore concluded
to sacrifice the interest of my officers and crew in the prize, and suffered
her to proceed, after the detention necessary to effect the transfer of
those Commissioners, considering I had obtained the important end I
had in view, and which affected the interests of our country and inter-
rupted the action of the Confederates.'
“I shall consider, first, how these reasons ought to affect the action
of this Government; and secondly, how they ought to be expected to
affect the action of Great Britain. The reasons are satisfactory to this
Government, so far as Captain Wilkes is concerned. It could not
desire that the San Jacinto, her officers and crew, should be exposed
to dangers and loss by weakening their number to detach a prize-crew
to go on board the Trent. Still less could it disavow the humane
motive of preventing inconveniences, losses, and perhaps disasters, to
P
210
THE TRENT.
Chap. IX. the several hundred innocent passengers found on board the prize
vessel.
“ Nor could this Government perceive any ground for questioning
the fact that these reasons, though apparently incongruous, did operate
in the mind of Captain Wilkes, and determine him to release the
Trent. Human actions generally proceed upon mingled and some-
times conflicting motives. He measured the sacrifices which this
decision would cost. It manifestly, however, did not occur to him
that beyond the sacrifice of the private interests (as he calls them) of
his officers and crew, there might also, possibly, be a sacrifice even of
the chief and public object of his capture, namely, the right of his
Government to the custody and disposition of the captured persons.
This Government cannot censure him for this oversight. It confesses
that the whole subject came anforeseen upon the Government, as,
doubtless, it did upon him. Its present convictions on the point in
question are the result of deliberate examination and deduction now
made, and not of any impressions previously formed.
“ Nevertheless, the question now is, not whether Captain Wilkes is
justified to his Government in what he did, but what is the present
view of the Government as to the effect of what he has done.
Assuming now, for argument's sake only, that the release of the
Trent, if voluntary, involved a waiver of the claim of the Govern-
ment to hold the captured persons, the United States could in that
case have no hesitation in saying that the act which has thus already
been approved by the Government must be allowed to draw its legal
consequence after it.
“ It is of the very nature of a gift or a charity that the giver cannot,
after the exercise of his benevolence is past, recall or modify its benefits.
“We are thus brought directly to the question whether we are
entitled to regard the release of the Trent as involuntary, or whether
we are obliged to consider that it was voluntary.
“ Clearly the release would have been involuntary had it been made
solely upon the first ground assigned for it by Captain Wilkes, namely,
a want of sufficient force to send the prize vessel into port for adjudi.
cation. It is not the duty of a captor to hazard his own vessel in
order to secure a judicial examination to the captured party. No large
prize-crew, however, is legally necessary, for it is the duty of the
captured party to acquiesce, and go willingly before the tribunal to
whose jurisdiction it appeals. If the captured party indicate purposes
to employ means of resistance which the captor cannot with probable
safety to himself overcome, he may properly leave the vessel to go
forward, and neither she nor the State she represents can ever after-
wards justly object that the captor deprived her of the judicial remedy
to which she was entitled.
“But the second reason assigned by Captain Wilkes for releasing
the Trent differs from the first. At best, therefore, it must be held
that Captain Wilkes, as he explains himself, acted from combined
THE TRENT.
211
sentiments of prudence and generosity, and so that the release of the Chap. IX
prize vessel was not strictly necessary or involuntary.
“Secondly, how ought we to expect these explanations by Captain
Wilkes of his reasons for leaving the capture incomplete to affect the
action of the British Government? The observation upon this point
which first occurs, is that Captain Wilkes's explanations were not made
to the authorities of the captured vessel. If made known to them,
they might have approved and taken the release upon the condition
of waiving a judicial investigation of the whole transaction, or they
might have refused to accept the release upon that condition.
“But the case is one not with them, but with the British Govern-
ment. If we claim that Great Britain ought not to insist that a judicial
trial has been lost because we voluntarily released the offending vessel
out of consideration for her innocent passengers, I do not see how she
is to be bound to acquiesce in the decision which was thus made by us
without necessity on our part, and without knowledge of conditions or
consent on her own. The question between Great Britain and ourselves
thus stated would be a question not of right and of law, but of favour
to be conceded by her to us in return for favours shown by us to her,
of the value of which favours on both sides we ourselves shall be the
judge. Of course the United States could have no thought of raising
such a question in any case.
“I trust that I have shown, to the satisfaction of the British
Government, by a very simple and natural statement of the facts and
analysis of the law applicable to them, that this Government has neither
meditated, nor practised, nor approved any deliberate wrong in the
transaction to which they have called its attention, and, on the con.
trary, that what has happened has been simply an inadvertency, con-
sisting in a departure by a naval officer, free from any wrongful motive,
from a rule uncertainly established, and probably by the several parties
concerned either imperfectly understood or entirely unknown. For
this error the British Government has a right to expect the same
reparation that we, as an independent State, should expect from Great
Britain or from any other friendly nation in a similar case.
“I have not been unaware that in examining this question I have
fallen into an argument for what seems to be the British side of it
against my own country, but I am relieved from all embarrassment on
that subject. I had hardly fallen into that line of argument when I
discovered that I was really defending and maintaining, not an exclu-
sively British interest, but an old, honoured, and cherished American
cause, not upon British authority, but upon principles that constitute
a large portion of the distinctive policy by which the United States
have developed the resources of a Continent, and, thus becoming a con-
siderable maritime Power, have won the respect and confidence of
many nations.
These principles were laid down for us in 1804 by
James Madison, when Secretary of State in the Administration of
Thomas Jefferson, in instructions given to James Munroe, our Minister
1
P2
212
THE TRENT.
Chap. IX.
to England. Although the case before him concerned a description of
persons different from those who are incidentally the subjects of the
present discussion, the ground he assumed then was the same I now
occupy, and the arguments by which he sustained himself upon it have
been an inspiration to me in preparing this reply.
“Whenever,' he says, 'property found in a neutral vessel is sup-
posed to be liable on any ground to capture and condemnation, the
rule in all cases is, that the question shall not be decided by the captor,
but be carried before a legal tribunal, where a regular trial may be
had, and where the captor himself is liable to damages for an abuse of
his power. Can it be reasonable, then, or just, that a belligerent com-
mander who is thus restricted and thus responsible in a case of mere
property, of trivial amount, should be permitted, without recurring to
any tribunal whatever, to examine the crew of a neutral vessel, to
decide the important question of their respective allegiance, and to
carry that decision into execution by forcing every individual he may
choose into a service abhorrent to his feelings, cutting him off from
his most tender connections, exposing his mind and his person to the
most humiliating discipline, and his life itself to the greatest dangers ?
Reason, justice, and humanity unite in protesting against so extrava-
gant a proceeding.'
“If I decide this case in favour of my own Government, I must
disallow its most cherished principles, and reverse and for ever abandon
its essential policy. The country cannot afford the sacrifice. If I
maintain those principles and adhere to that policy, I must surrender
the case itself. It will be seen, therefore, that this Government could
not deny the justice of the claim presented to us in this respect upon
its merits. We are asked to do to the British nation just what we
have always insisted all nations ought to do to us.
6. The claim of the British Government is not made in a discourteous
This Government, since its first organization, has never used
more guarded language in a similar case.
“In coming to my conclusion I have not forgotten that, if the
safety of this Union required the detention of the captured persons, it
would be the right and duty of this Government to detain them. But
the effectual check and waning proportions of the existing insurrec-
tion, as well as the comparative unimportance of the captured persons
themselves, when dispassionately weighed, happily forbid me from
resorting to that defence.
“Nor am I aware that American citizens are not in any case to be
unnecessarily surrendered for any purpose into the keeping of a foreign
State : only the captured persons, however, or others who are inte-
rested in them, could justly raise a question on that ground.
“ Nor have I been tempted at all by suggestions that cases might
be found in history where Great Britain refused to yield to other
nations, and even to ourselves, claims like that which is now before
Those cases occurred when Great Britain, as well as the United
manner.
vs.
TAE TRENT.
213
States, was the home of generations which, with all their peculiar Chap. IX.
interests and passions, have passed away. She could in no other way so
effectually disavow any such injury, as we think she does by assuming
now as her own the ground upon which we then stood.
" It would tell little for our own claims to the character of a just
and magnanimous people, if we should so far consent to be guided by
the law of retaliation as to lift up buried injuries from their graves, to
oppose against what national consistency and the national conscience
compel us to regard as a claim intrinsically right.
“Putting behind me all suggestions of this kind, I prefer to express
my satisfaction, that by the adjustment of the present case upon prin-
ciples confessedly American, and yet, as I trust, mutually satisfactory
to both of the nations concerned, a question is finally and rightly
settled between them, which heretofore exhausting not only all forms
of peaceful discussion, but also the arbitrament of war itself, for more
than half-a-century alienated the two countries from each other, and
perplexed with fears and apprehensions all other nations.
“The four persons in question are now held in military custody
at Fort Warren in the State of Massachusetts. They will be cheerfully
liberated.
“Your Lordship will please indicate a time and place for receiving
them.
“I avail, &c.
(Signed) “ WILLIAM H. SEWARD."
On the 30th December the prisoners were sent in a
tug-boat from Fort Warren to Provincetown, a small
sea-port in Massachusetts, forty miles from Boston.
Here they were put on board Her Majesty's ship
Rinaldo, and conveyed to Halifax, whence they subse-
quently found their way to England.
The reply of the British Government to the Govern-
ment of the United States was conveyed in two
despatches, one accepting the reparation offered, the
other disputing the positions, and controverting much
of the reasoning, by which that reparation had been
accompanied :
Earl Russell to Lord Lyons.
"My Lord,
"Foreign Office, January 10, 1862.
“In my despatch to you
of the 30th of November, after informing
you of the circumstances which had occurred in relation to the capture
of the four persons taken from on board the Trent, I stated to you
214
THE TRENT.
Chap. IX. that it thus appeared that certain individuals had been forcibly taken
from on board a British vessel, the ship of a neutral Power, while such
vessel was pursuing a lawful and innocent voyage; an act of violence
which was an affront to the British flag, and a violation of interna-
tional law. I concluded by directing you, in case the reparation which
Her Majesty's Government expected to receive, should not be offered
by Mr. Seward, to propose to that Minister to make such redress as
alone would satisfy the British nation, namely, first, the liberation
of the four gentlemen taken from on board the Trent, and their
delivery to your Lordship in order that they might again be placed
under British protection; and secondly, a suitable apology for the
aggression which had been committed.
“I received, yesterday, your despatch of the 27th ultimo, inclosing
a note to you from Mr. Seward, which is in substance the answer to
my despatch of the 30th of November.
· Proceeding at once to the main points in discussion between us,
Her Majesty's Government have carefully examined how far Mr. Seward's
note, and the conduct it announces, complies substantially with the two
proposals I have recited.
“With regard to the first, viz., the liberation of the prisoners with
a view to their being again placed under British protection, I find that
the note concludes by stating that the prisoners will be cheerfully
liberated, and by calling upon your Lordship to indicate a time and
place for receiving them. No condition of any kind is coupled with the
liberation of the prisoners.
“With regard to the suitable apology which the British Govern-
ment had a right to expect, I find that the Government of the United
States distinctly and unequivocally declares that no directions had been
given to Captain Wilkes, or to any other naval officer, to arrest the
four persons named, or any of them, on the Trent, or on any other
British vessel, or on any other neutral vessel, at the place where it
occurred or elsewhere.
“I find further, that the Secretary of State expressly forbears to
justify the particular act of which Her Majesty's Government com-
plained. If the United States' Government had alleged that, although
Captain Wilkes had no previous instruction for that purpose, he was
right in capturing the persons of the four prisoners, and in removing
them from the Trent, on board his own vessel, to be afterwards
carried into a port of the United States, the Government which had
thus sanctioned the proceeding of Captain Wilkes would have become
responsible for the original violence and insult of the act. But
Mr. Seward contents himself with stating that what has happened has
been simply an inadvertency, consisting in a departure by a naval
officer, free from any wrongful motive, from a rule uncertainly estab-
lished, and probably by the several parties concerned either imperfectly
understood or entirely unknown. The Secretary of State goes on to
affirm that for this error the British Govornment has a right to expect
THE TRENT.
215
the same reparation which the United States as an independent State Chap. IX
should expect from Great Britain or from any other friendly nation in
a similar case.
“Her Majesty's Government having carefully taken into their con-
sideration the liberation of the prisoners, the delivery of them into your
hands, and the explanations to which I have just referred, have arrived
at the conclusion that they constitute the reparation which Her Majesty
and the British nation had a right to expect.
“It gives Her Majesty's Government great satisfaction to be enabled
to arrive at a conclusion favourable to the maintenance of the most
friendly relations between the two nations. I need not discuss the
modifications in my statement of facts which Mr. Seward says he has
derived from the reports of officers of his Government.
"I cannot conclude, however, without adverting shortly to the dis-
cussions which Mr. Seward has raised upon points not prominently
brought into question in my despatch of the 30th of November. I
there objected, on the part of Her Majesty's Government, to that which
Captain Wilkes had done. Mr. Seward, in his answer, points out what
he conceives Captain Wilkes might have done without violating the law
of nations.
“It is not necessary that I should bere discuss in detail the five
questions ably argued by the Secretary of State, but it is necessary that
I should say that Her Majesty's Government differ from Mr. Seward in
some of the conclusions at which he has arrived ; and it may lead to a
better understanding between the two nations, on several points of
international law which may, during the present contest, or at some
future time, be brought into question, that I should state to you for
communication to the Secretary of State wherein those differences
consist. I hope to do so in a few days.
“In the meantime it will be desirable that the Commanders of the
United States' cruisers should be instructed not to repeat acts for which
the British Government will have to ask for redress, and which the
United States' Government cannot undertake to justify.
“You will read and give a copy of this despatch to the Secretary
of State.
“I am, &c.
(Signed)
" RUSSELL.”
Earl Russell to Lord Lyons.
"My Lord,
“Foreign Office, January 23, 1862.
“I mentioned in my despatch of the 10th instant that Her
Majesty's Government differed from Mr. Seward in some of the conclu.
sions at which he had arrived; and that I should state to you on a
future occasion wherein these differences consisted. I now proceed to
do so.
216
THE TRENT.
Chap. IX.
* It is necessary to observe that I propose to discuss the questions
involved in this correspondence solely on the principles of international
law. Mr. Seward himself, speaking of the capture of the four gentle-
men taken from on board the Trent, says : The question before us
is whether this proceeding was authorized by and conducted according
to the law of nations.' This is, in fact, the nature of the question
which has been but happily is no longer at issue. It concerned the
respective rights of belligerents and of neutrals. We must therefore
discard entirely from our minds the allegation that the captured
persons were rebels, and we must consider them only as enemies of
the United States at war with its Government, for that is the ground
on which Mr. Seward ultimately places the discussion. It is the only
ground upon which foreign Governments can treat it.
“ The first inquiry that arises therefore is, as Mr. Seward states it,
Were the persons named and their supposed despatches contraband of
war ?
“Upon this question Her Majesty's Government differ entirely
from Mr. Seward.
“The general right and duty of a neutral Power to maintain its
own communications and friendly relations with both belligerents can-
not be disputed. “A neutral nation,' says Vattel, 1 continues, with
the two parties at war, in the several relations Nature has placed
between nations. It is ready to perform towards both of them all the
duties of humanity, reciprocally due from nation to nation. In the
performance of these duties, on both sides, the neutral nation has itself
a most direct and material interest; especially when it has numerous
citizens resident in the territories of both belligerents; and when its
citizens, residents both there and at home, have property of great
value in the territories of the belligerents, which may be exposed to
danger from acts of confiscation and violence if the protection of their
Government should be withheld. This is the case with respect to
British subjects during the present civil war in North America.
Acting upon these principles, Sir William Scott, in the case of
the Caroline,2 during the war between Great Britain and France,
decided that the carrying of despatches from the French Ambassador
resident in the United States to the Government of France by an
United States' merchant-ship was no violation of the neutrality of the
United States in the war between Great Britain and France, and that
such despatches could not be treated as contraband of war. "The
neutral country,' he said, “has a right to preserve its relations with
the enemy, and you are not at liberty to conclude that any communica-
tion between them can partake, in any degree, of the nature of
1 Vattel, lib. iü, cap. 7, sec. 118.
2 The Caroline (6 Chr. Rob., 461); cited and approved by Wheaton
(Elements, part iv, chap. 3, sec. 22).
THE TRENT.
217
?
hostility against you. The enemy may have his hostile projects to be Chap. IX.
attempted with the neutral State, but your reliance is on the integrity
of that neutral State, that it will not favour nor participate in such
designs, but, as far as its own councils and actions are concerned, will
oppose them. And if there should be private reasons to suppose that
this confidence in the good faith of the neutral State has a doubtful
foundation, that is matter for the caution of the Government, to
be counteracted by just measures of preventive policy; but it is
no ground on which this Court can pronounce that the neutral carrier
has violated his duty by bearing despatches, which, as far as he can
know, may be presumed to be of an innocent nature, and in the main-
tenance of a pacific connection.' And he continues, shortly afterwards :
* It is to be considered also, with regard to this question, what may be
due to the convenience of the neutral State ; for its interests may
require that the intercourse of correspondence with the enemy's
country should not be altogether interdicted. It might be thought to
amount almost to a declaration that an Ambassador from the enemy
shall not reside in the neutral State, if he is declared to be debarred
from the only means of communicating with his own. For to what
useful purpose can be reside there without the opportunities of such a
communication ? It is too much to say that all the business of the
two States shall be transacted by the Minister of the neutral State
resident in the enemy's country. The practice of nations has allowed
to neutral States the privilege of receiving Ministers from the belli-
gerent States, and the use and convenience of an immediate negotiation
with them.'
“ That these principles must necessarily extend to every kind of
diplomatic communication between Government and Government,
whether by sending or receiving Ambassadors or Commissioners
personally, or by sending or receiving despatches from or to such
Ambassadors or Commissioners, or from or to the respective Govern-
ments, is too plain to need argument; and it seems no less clear that
such communications must be as legitimate and innocent in their first
commencement as afterwards, and that the rule cannot be restricted to
the case in which diplomatic relations are already formally established
by the residence of an accredited Minister of the belligerent Power in
the neutral country. It is the neutrality of the one party to the com-
munications, and not either the mode of the communication or the
time when it first takes place, which furnishes the test of the true
application of the principle. The only distinction arising out of the
peculiar circumstances of a civil war and of the non-recognition of the
independence of the de facto Government of one of the belligerents,
either by the other belligerent or by the neutral Power, is this : that
for the purpose of avoiding the difficulties which might arise from a
formal and positive solution of these questions, Diplomatic Agents are
frequently substituted, who are clothed with the powers and enjoy the
immunities of Ministers, though they are not invested with the repre-
218
THE TRENT.
Chap. IX. sentative character, nor entitled to diplomatic honours.'1 Upon this
footing Messrs. Mason and Slidell, who are expressly stated by
Mr. Seward to have been sent as pretended Ministers Plenipotentiary
from the Southern States to the Courts of St. James's and of Paris, must
have been sent, and would have been, if at all, received; and the
reception of these gentlemen upon this footing could not have been
justly regarded, according to the law of nations, as a hostile or
unfriendly act towards the United States. Nor, indeed, is it clear that
these gentlemen would have been clothed with any powers, or have
enjoyed any immunities, beyond those accorded to Diplomatic Agents
not officially recognized.
“It appears to Her Majesty's Government to be a necessary and
certain deduction from these principles, that the conveyance of public
Agents of this character from Havana to St. Thomas on their
way
to
Great Britain and France, and of their credentials or despatches (if
any), on board the Trent, was not and could not be a violation of
the duties of neutrality on the part of that vessel : and, both for
that reason, and also because the destination of these persons and of
their despatches was bona fide neutral, it is in the judgment of Her
Majesty's Government clear and certain that they were not contraband.
“The doctrine of contraband has its whole foundation and origin in
the principle which is nowhere more accurately explained than in the
following passage of Bynkershoek. After stating in general terms the
duty of impartial neutrality, he adds :
-Et sane id, quod modo dice-
bam, non tantum ratio docet, sed et usus, inter omnes fere gentes
receptus. Quamvis enim libera sint cum amicorum nostrorum hostibus
commercia, usu tamen placuit, ne alterutrum his rebus juvemus,
quibus bellum contra amicos nostros instruatur et foveatur. Non
licet igitur alterutri advehere ea, quibus in bello gerendo opus habet;
ut sunt tormenta, arma, et quorum præcipuus in bello usus, milites.
• . Optimo jure interdictum est, ne quid eorum hostibus subminis-
tremus ; quia his rebus nos ipsi quodammodo videremur amicis nostris
bellum facere.'?
“The principle of contraband of war is here clearly explained ; and
it is impossible that men, or despatches, which do not come within
that principle, can in this sense be contraband. The penalty of
knowingly carrying contraband of war is, as Mr. Seward states,
nothing less than the confiscation of the ship; but it is impossible that
this penalty can be incurred when the neutral has done no more than
employ means usual among nations for maintaining his own proper
relations with one of the belligerents. It is of the very essence of the
definition of contraband that the articles should have a hostile, and not
1 Wheaton: Elements, part iü, chap. 1, sec. 5.
? Bynkershoek : Quæst. Jur. Publ., lib. i, cap. 9.
<
THE TRENT.
219
Chap. IX.
a neutral, destination. Goods,' says Lord Stowell,i 'going to a
neutral port cannot come under the description of contraband, all
goods going there being equally lawful.' * The rule respecting contra-
band,' he adds, as I have always understood it, is, that articles must
be taken in delicto, in the actual prosecution of the voyage to an
enemy's port.' On what just principle can it be contended that
a hostile destination is less necessary, or a neutral destination more
noxious, for constituting a contraband character in the case of public
agents or despatches, than in the case of arms and ammunition ?
“Mr. Seward seeks to support his conclusion on this point by a
reference to the well-known dictum of Sir William Scott in the case of
the Caroline, that you may stop the Ambassador of your enemy on
his passage ;'? and to another dictum of the same Judge, in the case
of the Orozembo, that civil functionaries, 'if sent for a purpose
intimately connected with the hostile operations,'3 may fall under the
same rule with persons whose employment is directly military.
“These quotations are, as it seems to Her Majesty's Government,
irrelevant. The words of Sir W. Scott are in both cases applied by
Mr. Seward in a sense different from that in which they were
used. Sir William Scott does not say that an Ambassador sent from
a belligerent to a neutral State may be stopped as contraband while on
his passage on board a neutral vessel belonging to that or any other
neutral State; nor that, if he be not contraband, the other belligerent
would have any right to stop him on such a voyage.
The sole object
which Sir William Scott had in view was to explain the extent and
limits of the doctrine of the inviolability of Ambassadors, in virtue of
that character; for he says :
“The limits that are assigned to the operations of war against
them by Vattel and other writers upon these subjects, are, that you
may exercise your right of war against them wherever the character
of hostility exists. You may stop the Ambassadors of your enemy on
his passage; but when he has arrived, and has taken upon him the
functions of his office, and has been admitted in his representative
character, he becomes a sort of middle-man, entitled to peculiar
privileges, as set apart for the protection of the relations of amity
peace,
in maintaining which nations are in some degree
interested.'
“There is certainly nothing in this passage from which an inference
can be drawn so totally opposed to the general tenor of the whole
Judgment, as that an Ambassador proceeding to the country to which
he is sent on board a neutral vessel belonging to that country can be
and
1 The Imina; 3 Chr. Rob., 167.
2 The Caroline; 6 Chr. Rob., 468.
8 The Orozembo ; 6 Chr. Rob., 434,
220
THE TRENT.
.:
Chap. IX. stopped on the ground that the conveyance of such an Ambassador is a
breach of neutrality, which it must be if he be contraband of war.
Sir William Scott is here expressing not his own opinion merely, but
the doctrine which he considers to have been laid down by writers of
authority upon the subject. No writer of authority has ever sug-
gested that an Ambassador proceeding to a neutral State on board one
of its merchant-ships is contraband of war. The only writer named by
Sir William Scott is Vattel,l whose words are these : "On peut encore
attaquer et arrêter ses gens' (i.e., gens de l'ennemi) 'partout ou on a
la liberté d'exercer des actes d'hostilité. Non seulement donc on peut
justement refuser le passage aux Ministres qu’un ennemi envoye à
d'autres Souverains; on les arrête même, s'ils entreprennent de passer
secrètement et sans permission dans les lieux dont on est maître.'
“And he adds as an example, the seizure of a French Ambassador,
when passing through the dominions of Hanover during war between
England and France, by the King of England, who was also Sovereign
of Hanover.
“ The rule, therefore, to be collected from these authorities is, that
you may stop an enemy's Ambassador in any place of which you are
yourself the master, or in any other place where you have a right to
exercise acts of hostility. Your own territory, or ships of your own
country, are places of which you are yourself the master. The enemy's
territory, or the enemy's ships, are places in which you have a right to
exercise acts of hostility. Neutral vessels, guilty of no violation of the
laws of neutrality, are places where you have no right to exercise acts
of hostility.
" It would be an inversion of the doctrine that Ambassadors have
peculiar privileges to argue that they are less protected than other
men. The right conclusion is that an Ambassador sent to a neutral
Power is inviolable on the high seas, as well as in neutral waters, while
under the protection of the neutral flag.
“ The other dictum of Sir William Scott, in the case of the
Orozembo, is even less pertinent to the present question. That
related to the case of a neutral ship which, upon the effect of the
evidence given on the trial, was held by the Court to have been
engaged as an enemy's transport, to convey the enemy's military
officers, and some of his civil officers whose duties were intimately
connected with military operations, from the enemy's country to one
of the enemy's colonies, which was about to be the theatre of those
operations, the whole being done under colour of a simulated neutral
destination. But as long as a neutral Government, within whose
territory no military operations are carried on, adheres to its profession
of neutrality, the duties of civil officers on a mission to that Govern-
ment and within its territory cannot possibly be connected with any
1 Vattel, lib. iv, cap. 7, sec. 85.
THE TRENT
221
'military operations,' in the sense in which these words were used by Chap. IX.
Sir William Scott, as, indeed, is rendered quite clear by the passages
already cited from his own Judgment in the case of the Caroline.
“ In connection with this part of the subject it is necessary to
notice a remarkable passage in Mr. Seward's note in which he says:
'I assume, in the present case, what, as I read British authorities, is
regarded by Great Britain herself as true maritime law—that the
circumstance that the Trent was proceeding from a neutral port to
another neutral port does not modify the right of the belligerent
capture.' If, indeed the immediate and ostensible voyage of the
Trent had been to a neutral port, but her ultimate and real destina-
tion to some port of the enemy, Her Majesty's Government might have
been better able to understand the reference to British authorities
contained in this passage. It is undoubtedly the law as laid down by
British authorities, that if the real destination of the vessel be hostile
(that is, to the enemy or the enemy's country), it cannot be covered
and rendered innocent by a fictitious destination to a neutral port.
But if the real terminus of the voyage be bond fide in a neutral
territory, no English, nor indeed, as Her Majesty's Government
believe, any American authority can be found which has ever given
countenance to the doctrine that either men or despatches can be
subject, during such a voyage, and on board such a neutral vessel, to
belligerent capture as contraband of war. Her Majesty's Government
regard such a doctrine as wholly irreconcilable with the true principles
of maritime law; and certainly with those principles as they have been
understood in the Courts of this country.
" It is to be further observed that packets engaged in the postal
service, and keeping up the regular and periodical communications
between the different countries of Europe and America, and other parts
of the world, though in the absence of Treaty stipulations they may
not be exempted from visit and search in time of war, nor from the
penalties of any violation of neutrality, if proved to have been know-
ingly committed, are still, when sailing in the ordinary and innocent
course of their legitimate employment, which consists in the convey-
ance of mails and passengers, entitled to peculiar favour and protection
from all Governments in whose service they are engaged. To detain,
disturb, or interfere, with them, without the very gravest cause, would
be an act of a most noxious and injurious character, not only to a vast
number and variety of individual and private interests, but to the
public interests of neutral and friendly Governments.
“ It has been necessary to dwell upon these points in some detail,
because they involve principles of the highest importance, and because,
if Mr. Seward's argument were acted upon as sound, the most injurious
consequences might follow.
“ For instance, in the present war, according to Mr. Seward's
doctrine, any packet-ship carrying a Confederate Agent from Dover to
Calais, or from Calais to Dover, might be captured and carried to New
222
THE TRENT.
Chap. IX. York.
York. In case of a war between Austria and Italy, the conveyance of
an Italian Minister or Agent might cause the capture of a neutral
packet plying between Malta and Marseilles, or between Malta and
Gibraltar, the condemnation of the ship at Trieste, and the confinement
of the Minister or Agent in an Austrian prison. So in the late war
between Great Britain and France on the one hand, and Russia on the
other, a Russian Minister going from Hamburg to Washington in an
American ship might have been brought to Portsmouth, the ship
might have been condemned, and the Minister sent to the Tower of
London. So also a Confederate vessel of war might capture a Cunard
steamer on its way from Halifax to Liverpool, on the ground of its
carrying despatches from Mr. Seward to Mr. Adams.
In view, therefore, of the erroneous principles asserted by
Mr. Seward, and the consequences they involve, Her Majesty's Govern-
ment think it necessary to declare that they would not acquiesce in
the capture of any British merchant-ship in circumstances similar to
those of the Trent, and that the fact of its being brought before a
Prize Court, though it would alter the character, would not diminish
the gravity, of the offence against the law of nations which would
thereby be committed.
Having disposed of the question whether the persons named and
their supposed despatches were contraband of war, I am relieved from
the necessity of discussing the other questions raised by Mr. Seward,
namely, whether Captain Wilkes had lawfully a right to stop and search
the Trent for these persons and their supposed despatches; whether
that right, assuming that he possessed it, was exercised by him in a
lawful and proper manner; and whether he had a right to capture the
persons found on board.
“ The fifth question put by Mr. Seward, namely, whether Captain
Wilkes exercised the alleged right of capture in the manner allowed
and recognized by the law of nations, is resolved by Mr. Seward him-
self in the negative.
“ I cannot conclude, however, without noticing one very singular
passage in Mr. Seward's despatch.
“ Mr. Seward asserts that if the safety of this Union required the
detention of the captured persons it would be the right and duty of
this Government to detain them.' He proceeds to say that the waning
proportions of the insurrection, and the comparative unimportance of
the captured persons themselves, forbid him from resorting to that
defence. Mr. Seward does not here assert any right founded on inter-
national law, however inconvenient or irritating to neutral nations :
he entirely loses sight of the vast difference which exists between the
exercise of an extreme right and the commission of an unquestionable
wrong
His frankness compels me to be equally open, and to inform
him that Great Britain could not have submitted to the perpetration of
that wrong, however flourishing might have been the insurrection in
the South, and however important the persons captured might have been.
OBSERVATIONS.
223
Happily all danger of hostile collision on this subject has been Chap. IX.
avoided. It is the earnest hope of Her Majesty's Government that
similar dangers, if they should arise, may be averted by peaceful nego-
tiations conducted in the spirit which befits the organs of two great
nations.
“ I request you to read this despatch to Mr. Seward, and give him
a copy of it.
“ I am, &c.
(Signed) “ RUSSELL.”
Without entering into a discussion of this case, or
criticising the arguments on either side, I shall state the
questions to which it appears to have given rise, and
the situation in which it left them. These questions
are two-one, raised directly by the act of Captain
Wilkes, which required and received a decision; the
other, raised hypothetically by the American Govern-
ment, which the close of the controversy left open.
1. Is it lawful for a belligerent, exercising his right
of visit and search on the high seas, to take persons, not
serving the enemy in a military capacity, out of a
neutral ship, not judicially proved to have forfeited the
character of a neutral ? All opinions concur that this
is not lawful.
2. Does a neutral ship forfeit that character and
expose itself to condemnation by conveying, as pas-
sengers, from one neutral port to another, persons going
as diplomatic agents of the enemy to a neutral country?
The American Government maintains the affirmative
of this question, if not in all cases, at least in a case
where the agent has not yet acquired an official
character, and the community he is commissioned to
represent has not been recognized as independent. It
insists on the affirmative even where the ship is a
regular packet, carrying mails, goods, and passengers,
and making her regular voyage from and to her accus-
tomed ports, the persons themselves taking their berths
as ordinary passengers, and coming on board in the usual
way. The British Government maintains the negative,
224
THE TRENT.
Chap. IX. and other European Governments appear to be of the
same opinion, which is, I think, the sounder and more
reasonable.
These two questions are really part of a larger subject,
the outlines of which are as yet but vaguely and imper-
fectly drawn. The following propositions, though con-
densed, will be intelligible to lawyers. I state them
with diffidence; but they are, I believe, not far from the
truth.
1. A neutral ship, conveying persons in the enemy's
employment, whether military or civil, is not liable to
condemnation as prize, unless, on a consideration of all
the circumstances, the Court comes to the conclusion
that she is serving the enemy as a transport, and so as
to assist substantially, though not perhaps directly, his
military operations.
2. If it be proved that the ship, though owned by a
neutral, was actually hired for such a purpose by the
enemy, it is immaterial whether the persons conveyed
are many or few, important or insignificant, and
whether the purpose of the hiring was or was not
known by the master or owner.
I understand by
hiring, any contract which gives the actual control and
disposal of the ship to the enemy.
3. If, on the other hand, such a hiring by the
enemy be not shown, it then becomes necessary to
prove that the service performed was in its nature such
as is rendered by a transport. The number of the
persons conveyed, the nature of their employment, their
importance, their immediate or ultimate destination,
may then become material elements of proof; and there
should be evidence of intention, or of knowledge from
which intention may be reasonably inferred, on the part
of the owner, or his agent, the master.
4. It is incorrect, therefore, to speak of the convey-
ance of such persons as if it were the same thing as the
conveyance of “contraband of war,” or as if the same
1
OBSERVATIONS.
225
rules were applicable to it. It is a different thing, and Chap. IX.
the rules applicable to it are different.
5. The fact that the voyage is to end at a neutral
port is not conclusive against condemnation, but is a
strong argument against it, and would indeed be practi-
cally conclusive in most cases, especially if coupled
with proof that the ship was pursuing her ordinary
employment.
6. It is not lawful, on the high seas, to take persons,
whatever their character, as prisoners out of a neutral
ship which has not been judicially proved to have
forfeited the benefit of her neutral character.
Q
CHAPTER X.
Commencement of the Blockade.- Peculiar Character of the Southern
Coast.—Effects of this on the Blockade.--Questions which arose.
Observations.
We have seen that a blockade of the Southern ports
was the first object which engaged the attention of the
Federal Government, that the most strenuous exertions
were made to collect as quickly as possible a blockading
force, and that the task was an arduous one, the small
navy of the United States being at that time chiefly
dispersed in distant seas, whilst of the few ships at home
a considerable proportion were unfit for service.
The extent of coast covered by the two Proclamations
of the 19th and 27th of April was immense; but its
conformation and character, whilst they added at some
points to the difficulty of blockading it effectually,
rather diminished that difficulty on the whole. The
Southern rivers, descending from the slopes of the
lower Alleghany ranges, flow seawards across a level
plain chiefly composed of fine sand, the breadth of
which is from fifty to a hundred miles or more, sterile
for the most part, but cultivable where it is mixed with
mould, and containing, with large tracts of forest and
swamp, patches of extremely fertile soil. The plain, as
it approaches the sea, becomes intersected by smaller
streams, which are fed by the inland swamps; it is
indented by creeks and bays, and threaded by intricate
channels opening into broad lagoons of still water.
COMMENCEMENT OF THE BLOCKADE. .
227
Narrow banks of hard sand, pierced at considerable Chap. X
distances by shallow inlets, skirt the shore for hundreds
of miles; whilst elsewhere it is fringed by numerous
islands, scarcely rising above the tide, some of which
produce a long-stapled 'cotton, the finest and most
valuable in the world. Every river has a bar at its
mouth. There are many shoals; and local names, such
as Cape Lookout and Cape Fear, bear witness here and
there to the dangerous character of the navigation. In
short, the coast is for a great part of its length practically
unapproachable: it has many small harbours, but very
few capable of admitting large ships, and these more or
less difficult of access, especially at low tide; on the
other hand, it has long reaches of inland navigation,
opening at intervals into the sea, and easily traversable
by vessels of light draught.
The two Proclamations, though they gave notice to
all the world that a blockade was about to be instituted,
did not convey, in the technical sense of the phrase, a
“notification” of the existence of a blockade. At each
particular port or place on the coast the blockade began
at, and not before, the time when an adequate blockading
force arrived on the spot; it then took effect as a blockade
de facto, continued as long as an adequate force was
maintained there, and ceased when it was withdrawn.
It need hardly be said that any period allowed for the
egress of neutral ships from a blockaded port could only
be fairly counted from the time at which the existence
of the blockade was, or might reasonably be deemed to
be, known at the port. Where the blockading force is
stationed at a considerable distance from the port itself
-as may be the case when it lies off the mouth of a
navigable river—this observation may become material.
The announcement of the blockade naturally created
much anxiety amongst British subjects resident in
America and trading from or with the Southern ports ;
and, on the 29th April, Lord Lyons obtained an interview
Q2
228
COMMENCEMENT OF THE BLOCKADE.
Chap. X.
with Mr. Seward, an account of which is given in
the following extracts from a despatch of the 2nd
May :-
“I have made it my business, since the entrance of the present
Administration into office nearly two months ago, to endeavour to
ascertain precisely their intentions with regard to the commerce of
foreign nations with the States which have withdrawn from the Union.
Up to the day before the blockade was announced, the Government had
not itself come to any decision on the subject. Nor did I think it
expedient to press it to make any declaration so long as the commercial
operations of British merchants and British vessels in the seceded
States were carried on without hindrance and without inconvenience.
But since the blockade has been proclaimed, I have thought myself
entitled to ask with persistence for definite information respecting the
mode in which it is to be carried into effect. I had in particular a long
conversation on the subject with Mr. Seward, in presence of the Chief
Clerk of the State Department, on the 29th ultimo. I had prepared
Mr. Seward for the interview by suggesting to him, through the
Under-Secretary of State, the advisableness of diminishing the dis-
agreeable impression which the announcement of the blockade would
make abroad, by giving, as soon as possible, definite assurances that it
would be carried on with a liberal consideration for the interests of
foreign nations.
“So far as assurances in general terms go, nothing could be more
satisfactory than Mr. Seward's language. I did not, however, succeed
in obtaining at the time as definite a declaration of the rules which
would be observed as I had hoped.
“The principle point to which I drew Mr. Seward's attention was
the extreme vagueness of the information which was given to us. I“
referred him to the notifications of blockades made by Great Britain
during the late war with Russia, and pointed out to him the care and
precision with which every particular was stated in them. I asked
whether it was intended to issue similar notices for each Southern
port as soon as the actual blockade of it should commence.
“The reply which I received was, that the practice of the United
States was not to issue such notices, but to notify the blockade indivi.
dually to each vessel approaching the blockaded port, and to inscribe a
memorandum of the notice having been given on the ship's papers.
No vessel was liable to seizure which had not been individually warned.
This plan had, I was assured, been found to be in practice the most
convenient and the fairest to all parties. The fact of there being
blockading ships present to give the warning was the best notice and
best proof that the port was actually and effectually blockaded.
“The principal objection to the plan appeared to me to be that it
might in some cases expose foreign vessels to the loss and inconvenience
COMMENCEMENT OF THE BLOCKADE.
229
Chap. X.
of making a useless voyage, which a more general and public announce-
ment of the blockade would have prevented.
" I observed to Mr. Seward that the limits of the blockade which
it was intended to establish were not clearly stated. It was not easy
to understand exactly to what extent of coast the expression the
ports within' the States mentioned was applicable. Mr. Seward said
that it was intended to blockade the whole coast from Chesapeake Bay
to the mouth of the Rio Grande. I observed to him that the extent of
the coast between these two points was, I supposed, about 3,000 miles.
Surely the United States had not a naval force sufficient to establish
an effective blockade of such a length of coast. Mr. Seward, how-
ever, maintained that the whole would be blockaded, and blockaded
effectively.
"I may perhaps be allowed to refer your Lordship to a clear decla-
ration of the principles of the United States on such matters, which is
contained in a note from Mr. Buchanan dated 29th December, 1846,
and transmitted to the Foreign Office in Sir Richard Pakenham's
despatch of the same date.
“Mr. Seward assured me that all foreign vessels already in port
when the blockade should be set on foot would be allowed to come out
with their cargoes. I asked whether they would be allowed to come
out with cargoes shipped after the blockade was actually established.
Mr. Seward did not speak positively on this point; what he said
seemed to imply that the time at which the cargo was shipped would
not be inquired into. I said that I supposed it was clearly understood
that foreign ships coming out of blockaded ports in which there were
no United States' Customs authorities would not be interfered with by
a blockading squadron on the plea of their being without clearances or
other papers required by the Revenue laws.
“Mr. Seward said that it was the bond fide intention of the
Government to allow foreign vessels already in port when the blockade
was established to depart without molestation.
“He did not say that any particular term would be fixed after the
expiration of which foreign vessels would no longer be allowed to quit
blockaded ports.
“He did not repeat to me the assurance he gave some time ago to
one of my colleagues that vessels arriving without a knowledge of the
blockade would be allowed to go into a blockaded port and come out
again.
“Nor did he say anything of the intention, which he expressed to
another of my colleagues, of proposing to the Legislature that the
United States should adhere to the Declaration of the Congress of
Paris on maritime law.
“On my pressing Mr. Seward to give me, either in writing or at
all events by a formal verbal announcement, some definite information
for the guidance of British merchant-vessels, he promised to send me
a copy of the instructions issued to the officers of the blockading
230
COMMENCEMENT OF THE BLOCKADE.
Chap. X. squadron, and said he was confident I should find them perfectly
satisfactory. He was good enough to add, that if in any individual
cases the rules of the blockade should bear hardly on British vessels, he
should be ready to consider the equity of the matter, and to receive
favourably any representations which I might make on behalf of the
interests of British subjects.”
The Secretary of the Navy, on being applied to,
declined to furnish a copy of the Instructions, but Lord
Lyons received an assurancel that “ the blockade will be
conducted as strictly according to the recognized rules
of public law, and with as much liberality towards
neutrals, as any blockade ever was by a belligerent."
The following note was also sent to the Spanish
Minister, Señor Tassara :
Mr. Seward to Señor Tassara.
•
Sir,
“Washington, May 2, 1861.
"In acknowledging the receipt of your note of the 30th ultimo,
on the subject of the blockade of the ports in several of the States, I
deem it proper to state for your further information-
“1. That the blockade will be strictly enforced upon the principles
recognized by the law of nations.
“2. That armed vessels of neutral States will have the right to
enter and depart from the interdicted ports.
“3. That merchant vessels in port at the time the blockade took
effect, will be allowed a reasonable time for departure.
“ I avail, &c.
(Signed)
" W. H. SEWARD.”
The earliest attempt to institute an effective blockade
was notified as follows by the officer in command of the
home squadron:
“ PROCLAMATION.
“ To all whom it may concern :
“I hereby call attention to the Proclamation of his Excellency
Abraham Lincoln, President of the United States, under date of
the 27th April, 1861, for an efficient blockade of the ports of Virginia
and North Carolina, and warn all persons interested that I have a
1 4th May, 1861.
COMMENCEMENT OF THE BLOCKADE.
231
Chap. X.
sufficient naval force there for the purpose of carrying out that
Proclamation.
“All vessels passing the Capes of Virginia, coming from a die-
tance, and ignorant of the Proclamation, will be warned off, and those
passing Fortress Monroe will be required to anchor under the guns of
the fort, and subject themselves to an examination.
“ United States' Flag-ship. Cumberland, of
"Fortress Monroe, Virginia, April 30, 1861.
(Signed)
“G. J. PENDERGRAST,
“Commanding Home Squadron."
This notification was irregular and invalid, and no
neutral vessel entering any of the ports of Virginia and
North Carolina, and knowing of the blockade by the
notification alone, could have been legally condemned.
The ports of North Carolina were not blockaded, as we
A
97
1 A notification that a blockade is about to be instituted, or even
that a fleet has sailed for the purpose of instituting a blockade, is not
equivalent to a notification of an actual blockade. Further, a notifica-
tion of blockade must not be more extensive than the blockade itself.
A belligerent cannot be allowed to proclaim that he has instituted a
blockade of all the ports of the enemy within certain specified limits,
when in truth he has only blockaded some of them. Such a course
would introduce all the evils of what is termed, a paper blockade,"
and would be attended with the grossest injustice to the commerce of
of neutrals. Accordingly, a neutral is at liberty to disregard such a
notice, and is not liable to the penalties attending a breach of blockade
for afterwards attempting to enter one of the ports which really are
blockaded.
A striking illustration of these propositions is afforded by the
Judgment pronounced by the Privy Council in the case of Northcote
v. Douglas (The Franciska), Moore's Privy Council Cases, x, 37,
from which they are in substance taken. On the 11th April, 1854,
Admiral Sir C. Napier, commanding the British fleet in the Baltic, had
given notice that “Her Britannic Majesty's fleet will sail this day for
the Gulf of Finland, to place in a state of blockade the whole of the
Russian ports of the Baltic and in the Gulfs of Finland and Bothnia ;'
and the British Vice-Consul at Memel had on the 17th published a notice
that the Admiral “had placed the whole of the Russian ports in the East
Sea in a state of blockade.” In fact, however, the blockade of the coast
of Courland commenced on the 17th April ; that of Helsingfors and some
other ports on the 26th April; that of Revel and other ports on the
20th May; and that of Cronstadt and others in the Gulf of Finland on
the 26th June. A Danish vessel left Elsinore on the 14th May, intend.
ing to make for Riga (the actual blockade of which commenced on or
232
COMMENCEMENT OF THE BLOCKADE.
Chap. X. shall see, till long afterwards. Of the Virginian sea-coast,
however, the greater part is inclosed within Chesapeake
Bay, the mouth of which is narrow and guarded by the
'Capes of Virginia,” as they are called-Capes Charles
and Henry. Fortress Monroe faces this outlet; and
immediately south of the fortress the James and
Elizabeth Rivers, which drain the southern portions of
the State, discharge themselves into the Bay through
a passage called Hampton Roads, the narrowest part
of the channel not exceeding a mile and a quarter in
width. Several ships of war were generally assembled
here, and the blockade of Chesapeake Bay and the
James appears to have been tolerably effective from the
first.
The sudden enforcement of this blockade within
three days after the date of the Proclamation pressed
with some severity on Northern merchants, as well
as on residents within the blockaded territory. To
the requests of some British merchants residing at
New York and Baltimore, that they might be permitted
to send ships for the removal of staves and planking
purchased, paid for, and ready for delivery at Norfolk
and on the James River, Mr. Seward returned a civil
refusal. Established rules, he said, would not allow
such a concession; and it had already been refused to
American merchants who had cotton at Norfolk, which
they wished to bring away in American bottoms. A
about the 17th April). It was held that she must be released, on the
ground that, though Riga was blockaded, and though the master had
notice of a blockade, the notice which he had was not in accordance
with the facts. It was a notice of a general blockade which did not
exist—"a notice which, if he had received it from a British officer,
he could not, on the principles already stated, be punished for disre-
garding.”
I need hardly add that the invalidity of the notification did not
invalidate the blockade itself, where it existed de facto : thus it could
not have been pleaded on behalf of any vessel leaving a port actually
blockaded, with knowledge of the blockade, gathered from the noto-
rious presence of the blockading ships or otherwise.
CASE OF THE HIAWATHA.
233
different application forwarded a few days later, in Chap. X.
reference to a British ship, the Hiawatha, led to a
short correspondence, to which some importance was
given by the subsequent capture and condemnation of
the ship :-
66 Sir,
Lord Lyons to Mr. Seward.
“ Washington, May 8, 1861.
“ The inclosed extracts from letters which I received yesterday
from Her Majesty's Consul in Virginia will make you acquainted with
a case of some hardship concerning a British vessel, the Hiawatha.
This vessel, having come to City Point with a nominal freight in order
to take on board a remunerative cargo for the voyage back, may
be
compelled to return home in ballast in consequence of the blockade, of
which, of course, her owners could have had no knowledge when they
sent her out.
Being assured of the readiness with which the United States'
Government is inclined to receive representations in favour of foreign
commercial interests, I venture to submit this case for consideration,
and to request an early answer respecting it.
“ I have, &c.
(Signed)
66 LYONS.”
“ (Extract 1.)
“ I have but two British vessels left within my Consular district,
one of 445 tons and one of 63 tons, and if I could be permitted to
clear them for England with cargoes partially owned on British
account and indirectly wholly connected with British trade, it would
remove possible complications and be but a small infraction, if any, of
the laws of blockade.”
(Extract 2.)
“ There are parties here about to load the British ship Hiawatha
at City Point for Liverpool, under the impression that she will be
allowed free egress by the blockading squadron. I have told persons
who are here, representing the owners of the ship, that I see no diffi-
culty to the ship leaving in ballast, but to this they will not consent, as
the ship came here expressly from Liverpool at a nominal freight to
load a remunerative cargo back."
Mr. Seward to Lord Lyons.
“ My Lord, “ Department of State, Washington, May 9, 1861.
“ I have the honour to acknowledge the receipt of your communi-
cation of yesterday, relative to the exemption of the British vessel
234,
COMMENCEMENT OF THE BLOCKADE.
Chap. X.
Hiawatha, now in Virginia waters, from the operation of the existing
blockade of the ports of the State.
Having submitted the matter to the Secretary of the Navy, I
now have the honour to inclose to you a copy of that officer's reply,
from which it will be seen that there are yet remaining five or six days
for neutrals to leave.
“I have, &c.
(Signed) 66 WILLIAM H. SEWARD."
Mr. Welles to Mr. Seward.
“Sir,
“ Navy Department, May 9, 1861.
“I have the honour to acknowledge the receipt of your letter of
yesterday, inclosing a note of Lord Lyons, relative to British vessels
in Virginia waters, which it is desired to exempt from the operation of
the blockade, and inquiring when the blockade of the ports of Virginia
may be considered to have commenced; also whether the exemption
asked for by Lord Lyons may with propriety be granted.'
“In answer to the inquiry, I beg leave to refer you to a copy, here-
with inclosed, of the notice issued by Flag Officer Pendergrast on the
30th of April, warning all persons that he had a sufficient force to
carry into effect the blockade. This notice was sent to the Baltimore
and Norfolk papers, and by one or more of them published.
“ Fifteen days have been specified as a limit for neutrals to leave
the ports, after actual blockade has commenced, with or without cargo,
and there are yet remaining five or six days for neutrals to leave.
With proper diligence on the part of persons interested, I see no reason
for exemption to any.
“ I am, &c.
(Signed) 66 GIDEON WELLES.”
Lord Lyons to Mr. Seward.
Sir,
“ Washington, May 9, 1861.
“ I beg to thank you for your note of this day's date relative to
the case of the Hiawatha, a British ship now at City Point, in
Virginia.
“ You have done me the honour to send to me therewith a copy of
a letter from the Secretary of the Navy, in which it is stated that
' fifteen days have been specified as a limit for neutrals to leave the
ports after actual blockade has commenced, with or without cargo.'
“ In order to avoid all possible mistake with regard to the
Hiawatha, as well as to future cases of the same kind, I venture to
request you to inform me whether I am right in concluding, from the
statement just quoted, that the date of the shipment of the cargo is
immaterial, and that vessels leaving the ports before the expiration of
CASE OF THE HIAWATHA.
235
Chap. X.
the fifteen days will be allowed to proceed with their cargoes, whether
such cargoes were shipped before or after the actual beginning of the
effective blockade.
“I have, &c.
(Signed)
66 LYONS.”
Mr. Seward to Lord Lyons.
"My Lord,
“ Washington, May 11, 1861.
I have the honour to acknowledge the receipt of your note of the
9th instant, in which application is made for certain information regard-
ing the blockade, and to transmit to you herewith the copy of a letter
of this date from the Secretary of the Navy, to whom the matter was
referred, in answer to your inquiry.
“ I have, &c.
(Signed) « WILLIAM H. SEWARD.”
Mr. Welles to Mr. Seward.
o
Sir,
" Washington, May 11, 1861.
" In answer to Lord Lyons's letter of the 9th instant, I have the
honour to inform you that neutral vessels will be allowed fifteen days
to leave port after the actual establishment of the blockade, whether
such vessels are with or without cargoes.
"I have, &c.
(Signed)
66 GIDEON WELLES."
The rules of blockade, as commonly enforced, permit
a neutral vessel which is in the port at the time when
the blockade is instituted to sail in ballast or with cargo,
provided the cargo has been bona fide purchased and
shipped before that time, but not otherwise. Lord Lyons
had certainly some reason, from Mr. Welles's ambiguous
letter of the 9th (his own questions having been put
with the utmost clearness), to assume that in the case of
the Hiawatha leave would be given to load at any
time within the fifteen days. The Hiawatha took in
cargo accordingly, and by the 16th was ready for sea;
she was detained for want of a steam-tug till the 18th,
when she sailed, was captured on the 20th, and ultimately
was condemned as prize of war. The Judge of the
Admiralty Court before which she came for adjudication
236
CASE OF THE HIAWATHA.
Chap. X.
in the first instance was of opinion that Mr. Welles's
letter furnished no sufficient plea for sanctioning a
departure from the common rule. The Supreme Court
thought otherwise, but affirmed the condemnation
minority dissenting) on the ground that the vessel
did not actually get to sea until the fifteen days had
expired, although her detention had been accidental.
South of the Capes and in the States bordering on the
Gulf, the blockade was gradually extended during the
month of May to a few of the more considerable ports.
1 “ After a careful examination of the correspondence of the State
and Navy Departments, found in the record, we are not satisfied that
the British Minister erred in the construction that he put upon it,
which was, that a license was given to all vessels in the blockaded ports
to depart with their cargoes within fifteen days after the blockade was
established, whether the cargoes were taken on board before or after
the notice of the blockade. All reasonable doubts should be resolved
in favour of the claimants. Any other course would be inconsistent
with the right administration of the law and the character of a just
Government."-Black's R., ü, 675 (Prize Cases).
A former American Secretary of State, Mr. Marcy, had disapproved
this rule:
“ In some respects I think the law of blockade is unreasonably
rigorous towards neutrals, and they can fairly claim a relaxation of it.
By the decisions of the English Courts of Admiralty—and ours have
generally followed in their footsteps—a neutral vessel which happens
to be in a blockaded port is not permitted to depart with a cargo,
unless that cargo was on board at the time when the blockade was
commenced or was first made known. Having visited the port in the
common freedom of trade, a neutral vessel ought to be permitted to
depart with a cargo without regard to the time when it was received
on board.”-Mr. Marcy to Mr. Buchanan, 13th April, 1854.
Another point of blockade law was decided in the above cases.
It was contended for the owners of the Hiawatha that, under the
terms of the Proclamation of the 19th (which, however, did not apply
to the coast of Virginia), she was not liable to capture until the
Commander of one of the blockading vessels" had “duly warned"
her, and “indorsed on her registert he state and fact of such warning,"
and she had again attempted to leave the blockaded port. The Court
(four Judges dissenting) overruled this, holding that it would be
absurd to require a warning where the master had actual previous know-
ledge. This is perfectly in accordance with English decisions, and is
reasonable, though questioned by some continental jurists,
CHARLESTON BLOCKADED.
237
1
The Niagara, a large screw-frigate which had lately Chap. X.
returned from Japan, appeared on the 11th May before
Charleston harbour and began to warn off neutral ships.
She remained for four days, with her steam up, outside
the bar and six or seven miles from the mouth of the
harbour, and then departed altogether upon another
service. From the 15th till the 28th or 29th, when
the Minnesota, another powerful steam-frigate, arrived
to replace the Niagara, the port continued entirely open,
no ship of war showing herself in the neighbourhood.
This intermission gave rise to the following corre-
spondence :-
Lord Lyons to Mr. Seward.
-
Sir,
“ Washington, May 22, 1861.
“ I have the honour to inform you that it appears from reports
which I have received from Her Majesty's Consul at Charleston, that a
blockade of that port was declared by the United States' ship Niagara
to have commenced on the 11th instant; that the Niagara remained
off Charleston until the 15th instant; but that subsequently she
quitted the neighbourhood, and that no United States' vessel had
appeared there up to the 20th instant, the date of the latest account
which has reached me.
“I take it for granted that, if a blockade of the port of Charleston
be again intended, due notice of the actual commencement thereof will
be given, and that the period during which neutral vessels will be
allowed to depart with their cargoes will be reckoned from the date of
such actual commencement.
Trusting that you will favour me with an early acknowledgment
of this note, I have, &c.
(Signed) " LYONS."
1 The indorsement made by the officer of the Niagara on the
papers of the first British vessel boarded was in the following terms :-
"Boarded May 12, and ordered off the whole Southern Coast of
the United States of America, it being blockaded.
"R. L. MAY, Lieutenant, United States' steamship Niagara,"
The Captain afterwards told the British Consul that twenty days
would be allowed for the departure of neutral ships, counted from the
evening of the 10th.
238
BLOCKADE OF CHARLESTON.
Chap. X.
Mr. Seward to Lord Lyons.
“Department of State, Washington,
"My Lord,
May 27, 1861.
“I have the honour to acknowledge the receipt of your Lordship's
note of the 22nd instant. Having first submitted the same to the
Secretary of the Navy for the purpose of obtaining information con-
cerning the facts which it presents, I proceed to answer it.
“ The intention of the Government of the United States is to
exclude all commerce, as well its own as that of foreign nations, from
the ports of certain States which are in an insurrectionary co on,
with a view to suppress the insurrection and establish the authority of
the Federal Government.
“ The equitable form of a blockade was adopted for that purpose :
due notice of this purpose was given by the Proclamation of the
President. The blockade as to the port of Charleston was carried into
effect on the 11th day of this month, the United States' ship of war
Niagara having taken her position there and enforced the blockade.
“The blockade of the port of Charleston has been neither aban-
doned, relinquished, nor remitted, as the letter of Her Britannic
Majesty's Consul would lead you to infer. We are informed that the
Niagara was replaced by the steamer Harriet Lane, but that, owing
to some accident, the latter vessel failed to reach the station as ordered
until a day or two after the Niagara had left.
“I forbear from discussing the effect of the absence of the block-
ading force upon any vessel that might have entered or departed from
the port of Charleston during that brief time. Your note does not
such case as having actually occurred.
“I hasten, however, to express the dissent of this Government
from the position which seems to be assumed by your note, that that
temporary absence impairs the blockade and renders necessary a new
notice of its existence. This Government holds that the blockade took
effect at Charleston on the 11th day of this month, and that it will
continually be in effect until notice of its relinquishment shall be given
by Proclamation of the President of the United States. It is intended
and expected that the blockade will be constantly and vigorously
maintained. If any failure in that respect shall occur to the prejudice
of any party or nation, its representations to that effect will be
promptly considered.
"I avail, &c.
(Signed) • WILLIAM H. SEWARD."
submit any
Mr. Seward was mistaken. The little steamer men-
tioned in his letter had not shown herself at Charleston,
nor indeed would it have affected the question if she had.
INTERMISSION OF BLOCKADE.
239
A blockade, once begun, does not continue until notice Chap. X.
of its relinquishment has been given by proclamation.
It continues just so long as it is maintained by the actual
presence of an adequate blockading force, and no longer.
The utmost that can be said is, that where there has
been a regular notification, courts of justice will act on
the presumption that it continues to exist until that
presumption is displaced by evidence. The burthen of
proof, in short, is thrown on the neutral ship-owner.
But even this distinction is disapproved by continental
jurists. The temporary absence of the blockading
force, if it be such an absence as to remove the risk of
capture, not only impairs the blockade but discontinues
it, unless the absence be involuntary and caused by
stress of weather. If the blockading ships be blown
off by a gale, the reasonable presumption is that they
will return as soon as weather permits, and the neutral
trader is therefore bound by that presumption. But
no such presumption arises when they are sent away
on other service, nor even where, without orders,
they chase to a distance from the port. Nor is the
neutral bound to inquire whether the intermission is
due to a miscalculation on the part of the Government,
or to mistake or disobedience on that of its officers, or to
any accidental cause. These are matters not within his
knowledge. What he knows is that the coast is clear;
and, knowing that, he has a right to act on it.
After the arrival of the Minnesota, the blockade
was maintained by from one to four ships, one steam-
frigate at least usually lying off the bar between the two
principal channels which afford entrance to the harbour,
and another or others of inferior force cruising within
signalling distance. Savannah was blockaded on the
28th May by the Union, a small steamer of 600 tons,
1
1 The Niagara was understood to have been sent hastily south-
wards to intercept a cargo of arms which was believed to be coming
from Belgium.
240
SAVANNAH AND MOBILE. .
Chap. X. carrying five guns and thirty men, which had been
chartered by the month for this service. She dis-
appeared on the 1st June, leaving the port open, but
returned on the 10th, and there was no subsequent inter-
mission. On the 13th May a British ship was warned
off from Pensacola, but told that Mobile was still open.
About the 26th, however, the Powhatan showed her-
self before the latter port, and the Confederate officer
in command of the forts received notice from Captain
Porter that the place was under blockade.
The Powhatan soon afterwards proceeded to the
Balize, where she joined the Brooklyn in guarding
the two principal passes through which the waters of
the Mississippi find their way to the sea. Some cir-
cumstances which marked the commencement of the
blockade at this place deserve to be recorded ; and they
cannot be told better than in the words of Mr. Mure,
British Consul at New Orleans, whose report (dated
6th June) does credit to himself, as well as to the
United States' officer in command :
Consul Mure to Lord John Russell.
(Extract.)
“ New Orleans, June 6, 1861.
“ I have the honour to lay before your Lordship a statement of the
proceedings which I have been obliged to adopt for the purpose
of protecting the interests of British merchants and ships since
the announcement that the threatened blockade was established at
the passes of the Mississippi river.
1 This vessel, the Perthshire, loaded a cargo of cotton at Mobile,
and sailed on the 30th May. On the 9th June she was captured by
the steamer Massachusetts, but was released on the 12th by direction of
the Captain of the Niagara, who " considered the capture illegal, as,
by order of the Department, no neutral vessel not having on board
contraband of war was to be detained or captured unless attempting to
leave or enter a blockaded port after the notification of blockade
had been indorsed on her register.” The owner made a claim for 2001.
compensation on account of the detention of his ship, which had lost
twelve days of her voyage; and the claim was allowed and paid by the
Government of the United States.
.
BLOCKADE OF NEW ORLEANS.
241
Chap. X.
“No official notice had been given of the blockade; but as
the report was current, and announced in the newspapers, that
two vessels of war were off the Passes, I immediately apprised the
masters of the British vessels in port to lose no time in completing
their cargoes, as I had been informed by Her Majesty's Minister at
Washington that, after the blockade was established, the time for
vessels to leave, with or without cargo, was limited to fifteen days.
“ In consequence of the low stage of the water on the bar
nearly thirty vessels were at this time detained, being unable to get to
sea. The greater number were bound for Liverpool, and the aggregate
value of their cargoes could not be less than 1,000,0001. sterling. It
therefore became a matter of great importance to know the course
which the blockading squadron would pursue towards those vessels,
some of whom had left the port six weeks before the blockade.
“On the 1st current, I was informed that the Tow-Boat Company
had that day ordered all their tow-boats to withdraw from the bar and
return to the city, in consequence of apprehensions being entertained
by them that their boats might be captured while engaged in tugging
the vessels to sea. Although it appeared to me that their apprehen-
sions were groundless, as the tow-boats ought to be considered in the
light of neutrals and identified with the vessels that employed them,
yet the Directors refused to permit their boats to resume operations at
the bar until they received the assurance from the foreign Consuls that
no attack should be made on their boats while engaged in the service
of transporting vessels to sea.
As no time was to be lost in endeavouring to remove this
obstacle, it was resolved by myself and the Consuls of France and
Spain to proceed at once to the Balize, and confer with the Com-
manders of the blockading vessels. Accordingly on the 2nd current
we proceeded down the river in a boat, accompanied by the Consul for
Bremen and one of the Managers of the Tow-Boat Company. We
directed our course to the Pass à l'Outre, where the United States'
steam-ship Brooklyn was at anchor, blockading that pass. Having
exhibited the flags of our respective nations, we were immediately
received on board, with the usual formalities. We had a long conver-
sation with Captain Poore, who expressed a desire to take as liberal a
view of his instructions as he could, consistently with the duty
entrusted to him. He recommended us to visit the United States'
steam-ship Powhatan stationed at the South-west Pass, about 28 miles
distant. We arrived there late in the afternoon of the 3rd, and were
received very courteously by Captain Porter, the Commander of the
Powhatan.
“In order not to trespass on your Lordship's time, I shall merely
give a résumé of the points discussed connected with the blockade, and
the result of our conversation :-
“1. The day on which the blockade was established had been
officially announced by Captain Poore, of the Brooklyn, on the 26th
>
R
242
NEW ORLEANS AND GALVESTON.
Chap. X. of May, in a letter to Major Duncan, commanding one of the forts near
the mouth of the Mississippi River. Major Duncan omitted to commu-
nicate this intelligence publicly. The time when vessels could leave
was therefore limited to the 10th of June. I urged that this date
should be considered as applicable to vessels clearing from the port,
and that some time should be allowed for them to be towed down the
river and over the bar. To this suggestion both captains gave their
consent, and designated the 14th current as the final day.
“2. Regarding the immunity of tow-boats from molestation while
engaged in taking vessels to sea, both captains assented to my
view that they were to be regarded in the light of the sails of
the vessel, or as pilots; in fact, to be treated as neutrals. The Com-
manders stated, however, that they were well aware that some of
the old tow-boats carried guns, and had become privateers, and that to
them no privileges could be accorded. In order to prevent any
misunderstanding upon this point, I handed them a list of the names
of the boats employed by the Association.
“ 3. The next and last point discussed was the position of those
vessels which had been detained for several weeks by the low state of
water on the bar. The Commanders of the blockading vessels stated
that their instructions from the Secretary of the United States' Navy
did not allow them discretion to extend the time, but under the
peculiar circumstances of the case, they would take the responsibility,
and give some latitude to those vessels, provided efforts were made to
get them off, and no partiality was shown by the Tow-Boat Company
in taking over certain vessels owned in the South.
“I have thus given to your Lordship an abstract of the conversa-
tion we had with the Commanders of the blockading vessels, who
readily assented to our requests. Before we left the bar to return to
the city, we had the satisfaction of knowing that all the tow-boats were
ordered to resume operations. Since our arrival I have been informed
that twelve vessels have been towed to sea, and I hope that very few
will be detained at the bar on the 14th current. I deemed it my
duty to visit the squadron, in order to prevent, as far as possible,
a large amount of property belonging to British subjects from
being locked up for an indefinite period, and I feel assured that
your Lordship will approve of the steps which I adopted to accomplish
this end."
A like permission to use tow-boats had been given at
Mobile, and there, as well as at Pensacola, the British
ships in port got safely to sea. Galveston, in Texas, was
blockaded on the 2nd June by a single ship, the South
Carolina, which afterwards armed one of her prizes and
employed her as a tender.
NORTH CAROLINA.
243
The Sumter, as we know, ran out from the Mississippi Chap. X.
on the 30th June, and Galveston was never completely
clòsed against vessels whose light draft enabled them
to take the shallower channels across the bar. But
on the whole the Gulf ports appear to have been
effectively blockaded from the first. It was on the east
coast, stretching from the Capes of Virginia to the
southernmost point of Florida, that the disproportion of
the naval force employed to the work which it was
supposed to be performing was at first most palpable.
Up to the 8th July hardly an armed ship was to be dis-
covered anywhere between those two points, except at
Savannah and Charleston. Wilmington and Beaufort
remained perfectly open.
On the 13th July, however,
Commodore Pendergrast issued the following notice :
6 PROCLAMATION.
1
“U.S. Flag-ship' Roanoke,' of Charleston, July 13, 1861.
" To all whom it may concern.
“I hereby call attention to the Proclamation of his Excellency
Abraham Lincoln, President of the United States, under date of the
27th April, 1861, for an efficient blockade of the ports of Virginia
and North Carolina, and warn all persons interested that I have a
sufficient naval force here for the purpose of carrying out that Pro-
clamation.
“ All vessels entering the ports of North Carolina, or hovering
about the coast of the same, will subject themselves to capture.
Those coming from abroad and ignorant of the blockade will be
warned off.
“All vessels bound to the Capes of Virginia will be allowed to
proceed by having their papers endorsed, and will be allowed to enter
any of the ports of Maryland.
“Fifteen days after this date the above Proclamation will be rigidly
enforced against all vessels.
(Signed) “G. J. PENDERGRAST, Flag Officer,
Commanding West India Squadron.”
The coast-line and ports south of the Fear River
were not included in the terms of this notice; and, with
the exception only of the main entrances to the harbours
of Charleston and of Savannah, they continued unguarded,
R 2
244
THE COAST IMPERFECTLY BLOCKADED.
Chap. X.
save by the occasional visits of ships cruising up and down.
The general features which are common to a great part
of this coast with that of North Carolina have been
already described. Of the islands on the Georgian coast
an American geographer, who wrote eighty years ago,
says :-“ These islands are surrounded by navigable
creeks, between which and the mainland is a large
extent of salt marsh fronting the whole State, not less
on an average than 4 or 5 miles in breadth, intersected
with creeks in various directions, admitting through the
whole an inland navigation between the islands and
mainland from the north-east to the south-east corners
of the State. The east sides of these islands are for the
most part clean, hard, sandy beaches, exposed to the wash
of the ocean. Between these islands are the entrances
of the rivers from the interior country, winding through
the low salt marshes and delivering their waters into the
sounds, which form capacious harbours of from 3 to 8
miles over, and which communicate with each other by
parallel salt creeks.”] This description, which is sub-
stantially true at the present day, explains the ease with
which, notwithstanding the blockade, the coasting trade
was carried on. Sailing schooners, small steamers, and
other lesser craft ran safely through the interior waters,
stealing out into the sea when no cruiser was in sight,
and kept up frequent intercourse with the various little
havens south of the Savannah river. It explains also
the difficulty which was really experienced - though
it has sometimes been exaggerated-in enforcing the
blockade of Savannah and Charleston. To Charleston
harbour there are several entrances practicable for small
vessels drawing little water; against these the blockade
was ineffective, but it appears both there and at
Savannah to have been effective against the larger craft
which could penetrate only through the main channels.
1 The American Geography. By Jedidiah Morse. Second edition,
p. 556.
ITS INCREASED EFFECTIVENESS.
245
As autumn and winter drew on, the naval force at the Chap. X.
disposal of the Federal Government increased rapidly,
and the blockade became more stringent; but there
were occasional instances of laxity.
The following despatch, addressed to Lord Lyons in
February 1862, expresses the views on which the British
Government had up to that time acted, and afterwards
continued to act:-
Earl Russell to Lord Lyons.
'My Lord,
Foreign Office, February 15, 1862.
“ Her Majesty's Government have had under their consideration
the state of the blockade of the ports of Charleston and Wilmington.
“It appears from the reports received from Her Majesty's naval
officers that although a sufficient blockading force is stationed off
those ports, various ships have successfully eluded the blockade; a
question might therefore be raised as to whether such a blockade should
be considered as effective.
“Her Majesty's Government, however, are of opinion that, assuming
that the blockade is duly notified, and also that a number of ships is
stationed and remains at the entrance of a port, sufficient really to
prevent access to it or to create an evident danger of entering or leaving
it, and that these ships do not voluntarily permit ingress or egress, the
fact that various ships may have successfully escaped through it (as in
the particular instances here referred to) will not of itself prevent the
blockade from being an effective one by international law.
"The adequacy of the force to maintain a blockade being always,
and necessarily, a matter of fact and evidence, and one as to which
different opinions may be entertained, a neutral State ought to exercise
the greatest caution with reference to the disregard of a de facto and
notified blockade; and ought not to disregard it, except when it
entertains a conviction, which is shared by neutrals generally having
an interest in the matter, that the power of blockade is abused by a
State either unable to institute or maintain it, or unwilling, from some
otive or other, to do so.
“I am, &c.
(Signed)
" RUSSELL."
It is a settled rule of international law that blockades,
to be binding, must be effective; that is, the number,
strength, and disposition of the blockading force must be
such that no ship can go in or out except at the risk-
and that a serious and manifest risk-of capture. The
246
BLOCKADES MUST BE EFFECTIVE.
Chap. X.
reasons for this rule are, first, to restrain within definite
and moderate limits a belligerent right of interference
with neutral trade, which might otherwise be extended
so widely as to interdict such trade altogether; secondly,
in order that neutral ship-owners and captains may not
be misled, to their own loss, by seeing a nominal prohi-
bition set at nought with impunity. These objects are
frustrated if there be not constantly on the spot, either at
anchor or cruising to and fro, a sufficient force, sufficiently
near, and acting with sufficient vigilance, to prevent
ingress or egress, or at any rate to make it really hazardous:
if these conditions be not satisfied, it is no blockade at all,
and neutrals are entitled to disregard it, and to demand,
if captures are made, the restitution of their ships and
cargoes. The blockade of the southern coasts was cer-
tainly not free from irregularities, nor was it efficient at
all points; it was instituted before the Government had
a competent blockading force in readiness; it covered
nominally more ground than the force could really
occupy; and at more than one place it was intermitted
and resumed without notice. The British Government
was right, however, in forbearing to insist on these
defects as grounds of complaint. The commencement
of a blockade is seldom free from difficulties, and this
had some peculiar difficulties. The Government of the
United States was exerting itself to overcome them, and
had every motive to exertion. Credit should be given to
blockading officers for reasonable activity and vigilance,
till the contrary is shown. If irregularities can be
proved, recourse may be had to a Prize Court, which
will decree restitution; and, unless they are manifest
and long continued, or appeals to the tribunals of the
belligerent be met by a plain denial of justice, the
neutral Government will act wisely and properly in not
taking the matter into its own hands.
CHAPTER XI.
Confederate Ships in Neutral Ports—(1) Unarmed Vessels; course
pursued by Great Britain, Russia, Spain.—(2) Armed Ships ; the
Sumter visits successively Cuba, Curaçoa, Trinidad.-Remon-
strances and Demands of the Government of the United States.-
Answers of the Governments of Spain, the Netherlands, Great
Britain.-British Orders of January 1862.-Effect of them.--The
Nashville and Tuscarora at Southampton.-Rule of Twenty-four
Hours.—The Sumter and Iroquois at Martinique.
TOWARDS the end of June 1861 a merchant-vessel
under the Confederate flag made her appearance in the
Port of London. This was the first case of the kind, and
Mr. Adams lost no time in asking what treatment she
would receive, especially in respect of her clearance
outwards, which he feared might be regarded as involv.
ing some recognition of the Confederate States. He
was informed that according to our laws the flag which
a foreign vessel might carry was not material ; that the
production of her papers was not required; that the
master had only to state the country to which she
belonged, and that “ America” would be quite enough.
The Peter Marcy had been reported inwards as “of
New Orleans in America ;” and a like description would
be accepted on her clearance. The Peter Marcy there-
fore remained unmolested in the Victoria Dock, flying
her Confederate flag.
As early as the preceding April the same question
248
CONFEDERATE MERCHANT - SHIPS.
Chap. XI. had been raised at St. Petersburg by the American
Minister (Mr. Appleton) then residing at that Court.
Prince Gortschakoff bad answered that, while things
continued as they were, commerce between Russia and
the Confederate States would not be interrupted. As
to ships clearing from Southern ports, any informality
in their papers would be overlooked. They would be
received as vessels belonging to the United States, but
by reason of existing troubles unprovided with the usual
evidence of nationality. If they chose to deny that
they belonged to the United States, that would make no
difference. This involved no recognition of nationality;
it was a concession in aid of commerce. Regulations to
this effect were subsequently issued by the Departments
of Marine and Trade :-
“In case any merchant-vessels arrive in our ports belonging to
the Southern States of the American Union, the same not acknowledg-
ing the authority of the Government of the United States of America,
the said vessels are to be received and treated as hitherto according to
the Treaty of 1832,1 should even their ship's papers not be in order,
which may occur in consequence of the present political condition of
the United States of America.
“Should the crews of vessels belonging to the seceded States not
wish to acknowledge the authority of Consuls appointed by the
ederal Government of Washington ; then, in case of dispute, they
must abide by the decision of our local authorities, in the same
manner as foreigners whose Governments have no representatives
in our Empire,”
A similar course was adopted, but not without dis-
pute, by Spain. The Governor of Cuba having issued
an order under which “vessels proceeding from and
bearing the flag of the Southern Confederacy” were to
be permitted to enter and clear "as vessels proceeding
from a foreign nation which had no accredited Consul
within this territory,” Mr. Seward wrote to Mr. Schurz
1 The Treaty of Commerce of 10th December, 1832, between
Russia and the United States.
CONFEDERATE SHIPS-OF. WAR.
249
to express dissatisfaction. His Government expected, Chap. XI.
he said, that such vessels should be treated in all
respects as American, and subject to the laws and con-
sular authority of the United States. “ The waiving of
the irregularity of the papers in such cases is consented
to ex necessitate and for the present time only, and is not
to be drawn into precedent. But when this Government
shall see fit to withdraw this concession due notice will
be given to foreign Powers.”l Señor Calderon Collantes
refused to comply with this unreasonable requisition.
Spain, he answered, could not oblige such vessels by
force to submit to the Consular officers of the United
States. Nor would he admit - that the admission of
vessels without regular papers depended on a con-
cession on the part of the Government of the United
States, which might be granted or withdrawn at
pleasure. The Spanish Government claimed a right
to adhere to its rule of action as long as the necessity
existed."2
These cases fairly represent the general course which
nations may be expected to pursue in respect of the
unarmed ships of a revolted community, whose indepen-
dence has not been recognized.
Another and a more serious question arose when the
armed ships of the Confederacy began to show themselves
in foreign waters. The cruise of the Sumter carried her,
as we have seen, to ports under the dominion of Spain,
of the Netherlands, of Venezuela, Brazil, Great Britain,
and France. Her first appearance was in the little bay
of Cienfuegos on the south coast of Cuba. She arrived on
the 6th July, with a train of six prizes, supplied herself
with coal and water, and sailed immediately, leaving her
prizes in harbour, and putting on shore their officers and
crews, together with the crew of another vessel which
1 Mr. Seward to Mr. Schurz, 18th September, 1861.
2 Mr. Schurz to Mr. Seward, 17th October, 1861.
250
THE SUMTER AT CUBA.
sooner
Chap. XI. she had burnt at sea. Mr. Seward was no
apprised of these circumstances than he addressed a
demand for satisfaction to the Spanish Minister at
Washington -
"It is the duty of the Undersigned to bring this extraordinary
transaction to the notice of the Spanish Government. This Govern-
ment will cheerfully receive any explanation of it which the Spanish
Government may feel itself at liberty to give. But in the meantime,
assuming the facts to be correctly presented as they are above stated,
the Undersigned is instructed by the President of the United States to
inform the Spanish Government that he deems the admittance of the
said piratical vessel, the Sumter, into the port of Cienfuegos, with
the captured vessels and crews before described, her supply there with
coal and water, and her permitted departure, to have been in violation
of the Treaties existing between this Government and Spain, as well as
of the law of nations; and this Government, in this view, will expect
the immediate release and discharge of the captured vessels and their
cargoes. Reserving the subject of indemnity for the injury inflicted
upon the United States by the transaction, as recited, until time for
explanation shall have been afforded, the Undersigned is nevertheless
instructed to ask at once that Her Catholic Majesty's Government will
take effective measures to prevent the recurrence of transactions in
the ports of Spain of the kind now in question, which are not more
injurious to the commerce of the United States than towards that of
Spain herself and of all other commercial nations."1
"
Señor Tassara replied on the 9th of August:
Señor Tassara to Mr. Seward,
(Translation.)
Legation of Spain at Washington,
Washington, August 9, 1861.
“The Undersigned, Envoy Extraordinary and Minister Plenipoten-
tiary of Her Catholic Majesty, has the honour to bring to the knowledge
of the honourable Secretary of State of the United States that, accord-
ing to an official communication of the 28th of July, from the Captain-
General of the Island of Cuba, the vessels belonging to citizens of the
United States taken into the port of Cienfuegos by the steamer
Sumter have been set at liberty, the examination of the case proving
1 Mr. Seward to Señor Tassara, 15th July, 1861.
THE SUMTER AT CUBA.
251
that they were captured in waters within the jurisdiction of the island, Chap. XI.
and under unlawful circumstances.
"I am, &c.
(Signed) “ GABRIEL G. TASSARA."1
The published correspondence on the subject ends
here.
The regulations issued by the Spanish Government
were applied indifferently to ships-of-war under the
Confederate flag and to those of the United States,
and did not prohibit the reception of the Sumter.2
They would have prevented her from disposing of her
prizes even had they not been captured, as the authorities
alleged, in neutral waters. Having been published on
the 17th June, they could hardly have been received
in Cuba when the Sumter arrived. . We may hence
observe how important it is that Governments should
1 Three of these vessels had unquestionably been captured on
the high seas. As to the other three, the Sumter, Captain Semmes
affirmed, did not start in pursuit of them till they had gained an
offing of five miles, being herself at that time close to the Cuban
shore.
2 For this Decree see Note to Chap. VI, p. 147. It may be men-
tioned here that the Decree, which opens with a declaration that Her
Catholic Majesty had resolved to maintain the strictest neutrality in
the contest begun between the Federal States of the Union and the
States confederated at the South, was deemed highly satisfactory by
the Government of the United States. The American Minister at
Madrid wrote to Señor Calderon Collantes (31st June, 1861) in the
following terms :-“Yesterday I received a despatch from the Secre-
tary of State of the United States, informing me that the President
had read with the greatest satisfaction the Proclamation of Her
Catholic Majesty concerning the unfortunate troubles that have arisen
‘in the United States, and it affords me the sincerest pleasure to express
to your Excellency the high sense which the President entertains of
Her Majesty's prompt decision and friendly action upon this occasion.”
The Spanish Minister of State, in communicating the Decree, explained
that he “had avoided the use of the expression 'belligerents' as far as
possible, or any other which could be considered as prejudging the
question of right in any manner. We may judge of the success of
Señor Calderon's efforts from the fact that the obnoxious word is
applied to both parties three times in a short Decree.
+
252
THE SUMTER AT CURACOA.
bably
2
Chap. XI. lose no time in issuing the instructions by which their
officers at a distance are to be guided. The Sumter
left the Passes of the Mississippi on the 30th of June,
having waited twelve days for an opportunity; and she
would have been at sea two months before, could she
have been got ready by that time. As it was, she pro-
reached Cuba before the authorities had been
instructed how to deal with her.
On the evening of the 15th July this troublesome
visitor hove in sight of the Dutch port of St. Anne's,
Curaçoa, fired a gun for a pilot, and hoisted the Con-
federate flag. The Governor, in obedience to his orders,
refused to permit her to enter until assured that she was
not a privateer; she therefore lay outside till morning,
when Captain Semmes sent one of his officers ashore
with a written declaration that the Sumter was a ship-
of-war duly commissioned by the Government of the
Confederate States, asking at the same time leave to
come into port for a few days. The Governor-after
consulting his Council, who were unanimously of
opinion that the word of the commanding officer
was sufficient-granted the required permission. The
Sumter came in, coaled, and put to sea
on the
24th.
Upon this state of facts Mr. Seward wrote as follows
to the American Minister at the Hague:
1 The general rule, in the absence of any specific regulations, is thus
stated by Halleck: "Armed cruisers may anchor within a neutral port
as a shelter from the attacks of an enemy, to avoid the dangers of a
storm, or to supply themselves with water, provisions, and other
articles of pressing necessity. Asylum to this extent is required by the
common law of humanity to be afforded to belligerent vessels in
neutral ports. While a neutral State may by proclamation or other-
wise prohibit belligerent vessels with prizes or prisoners of war from
entering its ports, the absence of any such prohibition implies the right
to enter, and any vessel so entering neutral waters retains her right of
exterritoriality both with respect to her prisoners of war and her
prizes.”—Halleck, pp. 522, 523.
2 See Note to Chap. VI, p. 146.
CORRESPONDENCE WITH HOLLAND.
253
“You are instructed to bring this matter immediately to the notice Chap. XI.
of the Government of the Netherlands. The subject of damages for
so great a violation of the rights of the United States will be consi-
dered when we shall have properly verified the facts of the case.
In
the meantime 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 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 Governor 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. If the case thus presented shall not be found
entirely erroneous, or be very essentially modified, the United States
will expect that the Governor of the Island of Curaçoa will be promptly
made to feel the severe displeasure of the Government of the Nether-
lands, a country with which we have lived on terms of unbroken
friendship for three-quarters of a century."1
To this demand, as peremptory in tone as it was
unreasonable in substance, the Dutch Government,
through its Minister of Foreign Affairs, returned
a spirited and elaborate reply, which merits, notwith-
standing its length, to be placed on record. Baron
"Sir,
1 Mr. Seward to Mr. Pike, 15th August, 1861.
2 Baron Van Zuylen to Mr. Pike.
(From the Papers relating to Foreign Affairs laid before the Congress of
the United States, December 1861.)
(Translation.)
“ The Hague, September 17, 1861.
“ The Department of the Colonies has just communicated to me the
information, transmitted by the Governor of Curaçoa, concerning the
affair of the ship Sumter, and I hasten to bring to your notice the
following observations, by way of sequence to the preliminary reply
which I had the honour to address to you on the 2nd of this month.
According to the principles of the law of nations, all nations without
exception may adinit vessels of war belonging to a belligerent State to
their ports, and accord to them all the favours which constitute an
asylum. Conditions are imposed on the said vessels during their stay in
the ports or roadsteads. For example, they must keep perfect peace
with all vessels that may be there; they may not augment their crews,
nor the number of their guns, nor be on the look out in the ports or
roadsteads for the purpose of watching after hostile vessels arriving or
departing, &c. Besides, every State has the right to interdict foreign
vessels of war from entrance to ports which are purely military. Thus
254
CORRESPONDENCE WITH HOLLAND.
Chap. XI. Van Zuylen de Nyevelt answered that the Sumter was
not a privateer; that the rights of war could not
it was that Sweden and Denmark, in 1854, at the time of the Crimean
war, reserved the right to exclude vessels of war from such or such
ports of their dominions.
" The neutral Power has also the right to act like France, who, by
her declaration of neutrality in the war between the United States and
the Confederate States, under date of 9th June last (Moniteur of 11th
June), does not permit any vessel of war, or privateer of one or the
other of the belligerents to enter and remain with their prizes in
French ports longer than twenty-four hours, unless in case of refuge
under stress.
“In the proclamation of the month of June last, which was com-
municated to you with my despatch of the 13th, the Government of the
Netherlands has not excluded vessels of war from her ports.
'As to privateers, the greatest number of the maritime nations
allows them the privilege of asylum upon the same conditions nearly as
to vessels of war.
According to a highly esteemed author on the law of nations
(Hautefeuille, Droits et Devoirs des Nations Neutres, vol. i, p. 139), priva-
teers may claim entrance into the ports of nations which have consented
to accord asylum to them, not only in cases of pressing dangers, but even
in cases in which they may deem it advantageous, or even only agree-
able, and for obtaining rest or articles of secondary necessity, such as
the refreshments they may have need of.
• The terms of the proclamation of the Netherlands Government,
which admits privateers into Netherlands ports only in case of distress,
harmonize with this doctrine.
Moreover, according to the information received from the
Governor of Curaçoa, the Sumter was actually in distress, and that
functionary could not, therefore, refuse to allow the said vessel to enter
the port.
Strong in its amicable intentions, the King's Government does
not believe itself bound to confine itself to the defence of the conduct of
one of its agents in the particular case under discussion. It is not
ignorant that it can or may hereafter be a contested question in
such cases as to the reality of the distress in which such vessel
or another would be, and that thus the subject of the admission
generally of the Confederate States' vessels would rest untouched.
I therefore, Sir, think it opportune to look into the question, to
determine whether the Sumter should have been admitted at Curaçoa
without the condition of well-assured distress.
“ It is evident that the reply to be made is dependent on
another question—that is to say, Was this vessel a man-of-war or a
privateer?
CORRESPONDENCE WITH HOLLAND.
255
be denied to the Confederate States; that his Court Chap. XI.
had determined to preserve, in the pending struggle, a
“ In the latter case, the Netherlands Government could not, except
in case of a putting-in compelled by distress (relâche forcée), admit the
Sumter into the ports of its territories.
“It is not sufficient to dispose of the difficulty by the declaration
that the Sumter is, as is stated in your despatches, 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 are now laying desolate the United
States, and of which no Government more desires the prompt termina-
tion than does that of the Netherlands, I think I may express the
conviction that the Sumter is not a privateer, but a man-of-
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 to state that '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 (Diplomatie de la
Mer, vol. 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 may be exigible, but other
proofs must be presumed; and whether on the high seas
elsewhere, no foreign power has the right to obtain the exhibition of
them.
" 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 the English name (privateer), indicates sufficiently under this
circumstance that she is a private armed vessel—the name which
Mr. Wheaton gives them.—Elements of International Law, vol. 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.
or
-
256
CORRESPONDENCE WITH HOLLAND.
Chap. XI. perfect and absolute neutrality; and that it would be
inconsistent with this to admit the ships of one belligerent
“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 despatch of the
9th of this month, that all vessels carrying the Confederate flag are,
without distinction, to be considered as privateers, because the princi-
ples 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.
'But I deem it my duty to observe to you, Sir, that according to the
doctrines of the best publicists, such as Vattel, lib. iii, cap. 18, sec. 292,
and M. de Rayneval, Droits de la Nature et des Gens, vol. i, p. 161, there
is a notable difference between rebellion and civil war.
When,' says
Vattel, a party is formed in the State, which no longer obeys its
Sovereign, and is strong enough to make head against him, or in a
Republic, when the nation divides into two opposing parties, and
one side and the other take up arms, then it is a civil war.'
It is, therefore, the latter which now agitates the great American
Republic.
“But, in this case, the rights of war must be accorded to the two
parties.
“Let me be allowed to cite here only two passages; the one from
Vattel (lib. ii, cap. 4, sec. 56), which reads: 'Whenever affairs reach to
civil war 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 one and the other are independent of any
foreign authority, no one has the right to judge between them. Each
of them may be right. It follows, then, that the two parties may act
as having equal right.' The other passage is taken from the work of a
former minister, himself belonging to the United States, Mr. Wheaton,
who, in his Elements of International Law, chap. i, p. 35 (Am. ed., part 1,
p. 32), thus expresses himself: "If the foreign State would observe
6
on
CORRESPONDENCE WITH HOLLAND.
257
and exclude those of the other. He reminded Mr. Seward Chap. XI.
that the United Provinces had in 1779 refused, on the
absolute neutrality in face of the dissensions which disturb another
State, it must accord to both belligerent parties all the rights which war
accords to public enemies, such as the right of blockade, and the right
of intercepting merchandize contraband of war.
“ As for historic evidence, it will suffice to call to mind from ancient
times the struggle of the United Provinces with Spain, and from modern
date the war between the Hispano-American Colonies and the mother
country since 1810, the war of independence of Greece from Turkey
since 1821, &c.
It will doubtless be useless to recollect [unnecessary to remind
you ?], on this occasion, that the principle to see only insurgents
in the States of the South having neither sovereignty nor rights
of
war, nor of peace, was put forward by England, at the breaking
out of the War of Independence of the Anglo-American Colonies,
in the vindicatory memoir published by the British Court in 1778
in answer to the exposition of the motives for the conduct of France,
which had lately signed, on the 6th day of February of that year, a
Treaty with the United States, in which they were regarded as an
independent nation.
‘But the Court of Versailles set out from other principles, which she
developed in Observations on the Vindicatory Memoir of the Court of
London,' saying, among other things : 'It is sufficient to the justification
of his Majesty that the Colonies had established their independence not
merely by a solemn declaration, but also in fact, and had maintained
it against the efforts of the mother-country.
Existing circumstances seem to present the same characteristics :
and if it is desired to treat the States of the South as rebels, and accuse
them of felony, there might here be cited as applicable to the actual
conduct of the United States towards the Confederates the following
remark of the Court of Versailles : 'In advancing this proposition (that
the possession of independence, of which the French cabinet said the
Americans were in the enjoyment in 1778, was a veritable felony), the
English Minister had, without doubt, forgotten the course he had him-
self taken towards the Americans from the publication of the Declaration
of Independence. It is remembered that the creatures of the Court
constantly called
upon the rebellion vengeance and destruction. How-
ever, notwithstandiug all their clamours, the English Minister abstained,
after the Declaration of Independence, from prosecuting the Americans
as rebels; he observed, and still observes towards them, the rules of
war usual among independent nations. American prisoners have been
exchanged through cartels,' &c.
“The rights of war cannot, then, in the opinion of the King's
Government, be refused to the Confederate States; but I hasten to add
S
258
CORRESPONDENCE WITH HOLLAND.
Chap. XI. demand of England, to release the prizes which had been
carried into the Texel by Paul Jones, and that the English
that the recognition of these rights does not import in favour of such
States recognition of their sovereignty.
“Foreign nations,' says M. Martens (Précis du Droit des Gens,
lib. viii, cap. 3, sec. 264), '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.'
“This last recognition can only spring from express and official
declaration, which no one of the cabinets of Europe has thus far made.
Finally, and in the last place, I permit myself here to cite the
example of the American privateer, Paul Jones (sic).
“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. Yorke, 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. Yorke 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 Confederated States.
“If the Cabinet of the Hague cannot, therefore, by force of the pre-
ceding, class all the vessels of the Confederated States armed for war in
the category of privateers, much less can it treat them as pirates (as
you call them in your despatch 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 2nd of September.
“Here again historic antecedents militate in favour of the opinion
of the Netherlands Government.
“Is there need, in fact, 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 the pretence 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.
“The frankness with which the King's Government has expressed
CORRESPONDENCE WITH HOLLAND.
259
Minister then resident at the Hague had insisted that Chap. XI.
Jones was a pirate for exactly the same reasons for which
its convictions in relation to the course to be taken towards the States
of the South will, without doubt, be estimated at its just value by the
Government of the United States.
“It will perceive therein the well-settled intention to preserve in
safety the rights of neutrality; to lay down for itself and to follow a
line of conduct equally distant from feebleness as from too great
adventurousness, but suitable for maintaining intact the dignity of the
State.
“The Government of the Netherlands desires to observe, on the
occasion of existing affairs in America, a perfect and absolute neutrality,
and to abstain therefore from the slightest act of partiality.
According to Hubner (Saisie de Bâtiments Neutres), “neutrality
consists in absolute inaction relative to war, and in exact and perfect
impartiality manifested by facts in regard to the belligerents, as far as
this impartiality has relation to the war, and to the direct and immediate
measures of its prosecution.'
Neutrality,' says Azuni (Droits Maritimes), 'is the continuation
in a state of peace of a power which, when war is kindled between two
or more nations, absolutely abstains from taking any part in the
contest.'
“But if the proposition be admitted that all the vessels of the Con-
federate States armed for war should be considered primâ facie as
privateers, would there not be a flagrant inequality between the treat-
ment and the favours accorded to vessels of war of the United States
and the vessels of the Confederate States, which have not for the moment
a navy properly so called ?
“This evidently would be giving proof of partiality incompatible
with real duties of neutrality. The only question is to determine with
exactitude the distinctive characteristics between a privateer and a ship-
of-war, although this may be difficult of execution.
Thus is ignored
that which Count Reventlow, Envoy of the King of Denmark at Madrid,
drew attention to in 1782, that there exists among the maritime powers
regulations or conventions between sovereigns, which oblige them to
equip their vessels in a certain manner, that they may be held veritably
armed for war.
“ You express also, in your despatch of September 2, the hope that
the Netherlands Government will do justice to your reclamation,
grounding yourself on the tenor of Treaties existing between the
Netherlands and the United States, on the principles of the law of
nations, and, finally, upon the assurances you have received from the
King's Government
“ Amidst all the European powers there are few who have better
defended the rights of neutrals, and have suffered more in this noble
8 2
260
CORRESPONDENCE WITH HOLLAND.
Chap. XI. the same description was now applied to Semmes. The
United States, whose belligerent rights were not then
cause than Denmark; and one of her greatest statesmen of the close
of the last century, Count Bernstorff, has been able to declare with
justice, in his memoir of July 28, 1793, a document that will long
continue to be celebrated, "a neutral power fulfils all its duties by
never departing from the most strict impartiality, nor from the avowed
meaning of its Treaties.'
“ I have endeavoured, Sir, to show, in what precedes, that the
Government of the Netherlands has fulfilled conscientiously its first
duty, and will adhere faithfully thereto.
“ The Cabinet of the Hague does not observe, and will not observe,
less religiously the tenor of Treaties.
“ The Treaty of the 19th of January, 1839, and the additional
Convention of the 26th of August, 1852, only relate to commerce and
navigation; the only Treaties that can be invoked in the present case
are those of the 8th of October, 1782.
“ I do not think it my duty to enter here upon a discussion of
principles on the question of deciding whether these Treaties can still
be considered as actually in force, and I will not take advantage of
the circumstance that the Cabinet of Washington has implicitly
recognized, by the very reclamation which is the object of your
despatches, that the Treaties of 1782 cannot any longer be invoked as
the basis of international relations between the Netherlands, and the
United States.
“ I will only take the liberty of observing to you, Sir, that the exe-
cution of the stipulations included in those diplomatic acts would be
far, in the present circumstances, from being favourable to the Govern-
ment of the Republic.
" In fact, we should, in this case, admit to our ports privateers
with their prizes, which could even be sold there by virtue of Article 5
of the before-cited Convention of 1782, on rescues.
“It would, perhaps, be objected that the Treaty of 1782, having
been concluded with the United States of America, could not be
invoked by a part of the Union which had seceded from the central
Government, and I do not dissent from the opinion that this thorny
question of public law would give rise, should the case occur, to very
serious difficulties.
" But we cannot lose sight of the fact that the Treaty spoken of
was concluded, even before the recognition of the United States by
England, in 1783, with the oldest members of the Republic, among
others, to wit, with Virginia, North Carolina, South Carolina, and
Georgia, and that those States actually figure among the Seces-
sionists.
.“ In 1782 the Republic of North America was only a simple con-
:
1
CORRESPONDENCE WITH HOLLAND.
261
recognized by England, enjoyed at that time the same Chap. XI
treatment in the ports of the Republic of the United
federation of States, remaining sovereign, united only for common
defence (Staatenbund); and it is only since the establishment of the
Constitution of the 17th of September, 1787, that the pact which
binds together the United States received the character which is attri-
buted to it by Mr. Wheaton also (Elements of International Law) of
à perfect union between all the members as one people under one
Government, federal and supreme (Bundestaat)—a commonwealth,
according to Mr. Motley in his pamphlet Causes of the Civil War in
America, p. 71.
" In view of this fundamental difference between the present
character of the Government of the United States and that of the
party contracting the Treaty of 1782, it would be difficult to refuse in
equity the privilege of the Secessionist States to avail themselves
of it.
“It will, therefore, not escape your penetration that it is preferable,
as well for the Netherlands as for the Cabinet of Washington, to leave
the Treaty above mentioned at rest, and that, in excluding privateers
from its ports, the Government of the Netherlands has acted only in
the interests of the Government of the United States, to which it is
bound by feelings of a friendship which dates even from the time of
the existence of the Republic of the United Provinces, and which the
King's Government will make every effort to maintain and consolidate
more and more.
According to the Law of Nations, the cases in which the neu-
trality of a power is more advantageous to one party than to the other
do not affect or impair it; it suffices that the neutrality be perfect and
strictly observed. The Government of the Netherlands has not departed
from it, therefore, in denying admission to the ports of His Majesty's
territories to privateers, although at first glance this determination is
unfavourable to the Southern States.
“ The difficulties which have actually arisen, and which may be
renewed hereafter, the desire to avoid as much as possible everything
that could compromise the good understanding between the Govern-
ments of the United States and the Netherlands, impose on the latter
the obligation to examine with scrupulous attention if the maintenance of
the general principles which I have had the honour to develope might
not in some particular cases impair the attitude of neutrality which
the Cabinet of the Hague desires to observe. If, for example, we had
room to believe that the Sumter, or any other vessel of one of the
two belligerent parties, sought to make of Curaçoa, or any other port
in His Majesty's dominions, the base of operations against the com-
merce of the adverse party, the Government of the Netherlands would
be the first to perceive that such acts would be a real infraction, not
262
t
CORRESPONDENCE WITH HOLLAND.
Chap. XI. Provinces as the authorities of the Netherlands have
now accorded to the Confederate States.” He added that,
should there be reason to believe that the Sumter, or
any vessel of either belligerent, sought to make Curaçoa,
or any other Dutch port, a base of operations against the
commerce of the adverse party, the Government would
take measures to prevent such an infringement, not only
of neutrality, but of its own rights of sovereignty over
the territorial waters of the State, and that instructions
on this point would be sent to the Colonial authorities.
A month afterwards, on the arrival of news that the
Sumter had put in and coaled at Paramaribo, further
orders were sent out, applicable, as the previous orders
had been, to the ships of both belligerents alike. They
were not to be permitted to provide themselves with
more coal than would be enough for a run of twenty-
four hours, and their stay in port was to be limited to
twice twenty-four.
To the despatch of the 17th September Mr. Seward
rejoined by reiterating that the United States “unre-
servedly claimed to determine for themselves absolutely
the character of the Sumter;" that they would not debate
the point; and that they were determined “to make it
merely of the neutrality we wish to observe, but also of the right of
sovereignty over the territorial seas of the State ; the duty of a neutral
State being to take care that vessels of the belligerent parties commit
no act of hostility within the limits of its territory, and do not keep
watch in the ports of its dominion to course from them after vessels of
the adverse party.
“ Instructions on this point will be addressed to the Governors of
the Netherlands colonial possessions.
"I flatter myself that the preceding explanations will suffice to
convince the Federal Government of the unchangeable desire of that
of the Netherlands to maintain a strict neutrality, and will cause the
disappearance of the slightest trace of misunderstanding between the
Cabinets of the Hague and of Washington.
“Accept, &c.,
(Signed) " DE ZUYLEN DE NYEVELT."
1 Baron Van Zuylen to Mr. Pike, 15th October, 1861.
THE SUMTER AT TRINIDAD.
263
sure that henceforth any piratical vessel fitted out by Chap. XI.
or under the agency of disloyal American citizens, and
cruising in pursuit of 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 that way, we must
provide for the protection of our rights in some other
way.”] The Dutch Government was not moved by this
threat, nor did the American Government attempt to
enforce it, and the correspondence closed with a despatch
in which Mr. Seward professed to find the instructions
of October practically satisfactory.
On the arrival of the Sumter at Trinidad, it became
the turn of Great Britain to answer complaints similar
in substance, though couched in different language :
Mr. Adams to Earl Russell.
“Legation of the United States, London, September 30, 1861.
“ The Undersigned, Envoy Extraordinary and Minister Plenipo-
tentiary of the United States, regrets to be obliged to inform the Right
Honourable Earl Russell, Her Majesty's Principal Secretary of State
for Foreign Affairs, that he has been instructed by the President of
the United States to prefer a complaint against the authorities of the
Island of Trinidad for a violation of Her Majesty's Proclamation of
Neutrality by giving aid and encouragement to the insurgents of the
United States.
It appears by an extract from a letter received at the Department
of State from a gentleman believed to be worthy of credit, a resident
of Trinidad, Mr. Francis Bernard, a copy of which is submitted here-
with, that a steam-vessel known as an armed insurgent privateer,
called the Sumter, was received on the 30th of July last at that port,
and was permitted to remain for six days, during which time she was
not only furnished with all necessary supplies for the continuance of
her cruise under the sanction of the Attorney-General, but that Her
Majesty's flag was actually hoisted on the Government flag-staff in
acknowledgment of her arrival.
“ The Undersigned has been directed by his Government to bring
this extraordinary proceeding to the attention of Lord Russell, and in
case it shall not be satisfactorily explained, to ask for the adoption of
such measures as shall insure, on the part of the authorities of the
1 Mr. Seward to Mr. Pike, 17th October, 1861.
264
THE SUMTER AT TRINIDAD.
Chap. XI. said island, the prevention of all occurrences of the kind during the
continuance of the difficulties in America.
“ The Undersigned deems it proper to add, in explanation of the
absence of any official representation from Trinidad to substantiate the
present complaint, that there was no Consul of the United States there
at the time of the arrival of the vessel. The Undersigned had the
honour, a few days since, to apprise Lord Russell of the fact that this
deficiency had been since supplied by preferring an application for Her
Majesty's exequatur for a new Consul, who is already on his way to
occupy his post.
“The Undersigned, &c.
(Signed) “ CHARLES FRANCIS ADAMS."
Earl Russell to Mr. Adams.
1
“ Foreign Office, October 4, 1861.
“ The Undersigned has had the honour to receive a complaint from
Mr. Adams against the authorities of the Island of Trinidad for a
violation of Her Majesty's Proclamation of Neutrality, by giving aid
and encouragement to the insurgents of the United States.
“ It appears, from the accounts received at the Colonial Office and
at the Admiralty, that a vessel bearing a Secession - flag entered the
port of Trinidad on the 30th of July last.
“ Captain Hillyar, of Her Majesty's ship Cadmus, having sent a
boat to ascertain her nationality, the commanding officer showed a
commission signed by Mr. Jefferson Davis, calling himself the Presi-
dent of the so-styled Confederate States.
“ The Sumter, which was the vessel in question, was allowed to
stay six days in Trinidad, and to supply herself with coals and pro-
visions, and the Attorney-General of the Island perceived no illegality
in these proceedings.
“ The Law Officers of the Crown have reported that the conduct of
the Governor was in conformity to Her Majesty's Proclamation.
“No mention is made by the Governor of his hoisting the British
flag on the Government flag-staff, and if he did so, it was probably in
order to show the national character of the island, and not in acknow-
ledgment of the arrival of the Sumter.
“ There does not appear, therefore, any reason to believe that Her
Majesty's Proclamation of Neutrality has been violated by the Governor
of Trinidad or by the commanding officer of Her Majesty's ship
Cadmus.
“ The Undersigned, &c.
(Signed) “ RUSSELL."
In a subsequent conversation with Lord Lyons,
Mr. Seward said “that France and, he thought, all the
other Powers of Europe, refused to allow privateers to
9)
BRITISH REGULATIONS.
265
remain for more than twenty-four hours in their ports. Chap. XI.
He could hardly conceive that England wished to stand
alone as the only Power which admitted the enemies of
the United States without restriction into its harbours.
He supposed that the matter could hardly have pre-
sented itself in this light to Her Majesty's Government.
“I observed,” proceeds Lord Lyons, “to Mr. Seward,
that I supposed that in this matter each Power had
looked back to precedents, and taken the course which
had been usual with it on similar occasions in former
times. In one point the English rule was, I said, more
stringent than that of France and many other Powers,
for armed vessels were not allowed to carry their prizes
into British ports for any time, however short. Mr. Seward
did not pursue the conversation; he merely said that he
had wished to mention the matter to me in the hope that
I might do something towards getting it satisfactorily
settled." 2 A few days afterwards the conversation was
renewed, and the American Secretary of State, in Lord
Lyons's words, “seemed to wish now to be understood as
requesting me positively to suggest to Her Majesty's
Government to adopt the rule which had, he said, been
adopted by all the other Powers of Europe. He seemed
to desire to make the suggestion through me rather than
in a more formal manner through the United States'
Minister in London.”3
The Orders of January 1862 complied, as we have
seen, in this respect with the desire of the American
Government. These Orders required every ship-of-war
1 This is not a correct statement of the French regulation. It ran
thus:
“Il ne sera permis à aucun navire de guerre ou corsaire de l'un ou
de l'autre des belligérants d'entrer et de séjourner avec des prises dans
nos ports ou rades pendant plus de vingt-quatre heures, hors le cas de
relâche forcée."
2 Lord Lyons to Earl Russell, 4th November, 1861.
3 The same to the same, 9th November, 1861.
4 See Note to Chap. VI, p. 137.
3
266
REGULATIONS AS TO CRUISERS.
Chap. XI.
or privateer of either belligerent which should enter
British waters to depart within twenty-four hours after-
wards, except in case of stress of weather or of her
requiring provisions, or things necessary for the sub-
sistence of her crew, or repairs. In either of these cases
she was to put to sea as soon after the expiration of the
twenty-four hours as possible, taking in no supplies
beyond what might be necessary for immediate use, and
no more coal than would carry her to the nearest port of
her own country, or some nearer destination. Nor, after
coaling once in British waters, was she to be suffered
to coal again within three months unless by special
permission.
The pressure of these Orders, it need hardly be said,
bore chiefly on the handful of cruisers which roved about
under the Confederate flag. Cut off from returning,
except at great risk, to any port of their own, and
tracked from place to place by Federal ships of heavier
metal and superior force, it was to them of vital con-
sequence to be able to keep the sea as long as possible,
while their comparatively small dimensions allowed them
little stowage for fuel. The Federal cruiser, on the other
hand, able to go where she pleased, and sure in due time
to be relieved from home, felt the restraints but little.
It is not to be supposed, however, that these considera-
tions had weight with the British Government, nor could
they have been urged by way of objection to the Orders
themselves. It is the right of the neutral, remaining at
peace, to shut out war altogether from his own shores and
his own waters, to repel its first approaches, no matter
in what shape it may come or under what insidious
disguise, and to prohibit belligerent ships from making
his ports and roadsteads a station whence they may
watch for and attack the enemy. It is his right to
make, for that purpose, any regulations he thinks fit,
provided he applies them to both belligerents alike.
It is not for him, as I have before observed, to handicap,
as it were, by any regulations of his own, belligerents
THE NASHVILLE AT SOUTHAMPTON.
267
between whom there is a disparity of force; nor is he Chap. XI.
under any obligation at all to refrain from enforcing a
prohibition which he judges convenient, because its
incidence will be made unequal by their inequality of
strength or circumstances. If a long cruise at the
present day require repeated supplies of coal, it must
be remembered that to assist either party to maintain
a long cruise is not the business of the neutral.
This general right to keep neutral territory inviolate
was called into action towards the close of the year by
the arrival at Southampton of a Confederate armed ship
(the only one that ever entered a port within the
United Kingdom, unless to be dismantled or surren-
dered), speedily followed by a Federal cruiser. The
Nashville, a large paddle-wheel steamer formerly engaged
on the New York and Charleston line, had been designed
to carry the Confederate agents to Europe—a service
which, as it turned out, she would have performed
successfully; but she drew too much water, it was
thought, to be relied on for running the blockade, and
they were accordingly transferred to the Theodora,
and sent by the West India route-with what conse-
quences we have already seen. The Nashville, lightened
to diminish her draught, armed with two guns and
commanded by an officer who had served with some
distinction in the Federal navy, slipped out from
Charleston on the night of the 26th October, unseen,
although it was moonlight, by the blockading ships, but
nearly grounding on the bar. She touched at Bermuda,
coaled there, and arrived at Southampton on the 21st
November, having captured and burnt an American
merchantman near the entrance of the Channel.?
1 Coal from the Government stores was refused. The Duke of
Newcastle, referring to this in a despatch to the Governor of Bermuda,
wrote: “I have further to state that both you and Captain Hutton
showed a very proper discretion in declining to furnish supplies to a
war-vessel of one of the belligerent parties from public stores belonging
to the British Government."
2 The master and crew of the ship thus destroyed, the Harvey
268
· THE NASHVILLE AT SOUTHAMPTON.
Chap. XI. Orders were immediately despatched that she should not
be allowed to add to her equipment for war, and that
if any attempt were made to do so, proceedings should
be taken under the Foreign Enlistment Act; and Lord
Russell received from Mr. Adams on the 23rd an appli-
cation, the purport of which is sufficiently stated in the
following answer :-
Earl Russell to Mr. Adams.
Foreign Office, November 28, 1861.
“The Undersigned, Her Majesty's Principal Secretary of State
for Foreign Affairs, has the honour to inform Mr. Adams, Envoy
Extraordinary and Minister Plenipotentiary of the United States at
this Court, that his note of the 22nd instant has been the subject of
careful and anxious consideration by Her Majesty's Government.
“ Mr. Adams, after reciting the capture and destruction by fire of
a United States' merchant-ship on the high seas by order of the
Commander of the armed steamer called the Nashville, and the sub-
sequent arrival of the Nashville in the port of Southampton, asks
for an inquiry as to two classes of facts: the first, as to the authority
possessed by this vessel to commit so aggressive an act on the citizens
of a friendly Power and then to claim a refuge in the harbours of
Great Britain ;' the second, 'in case the nature of that authority be
deemed sufficient, at least in the view of Her Majesty's Government,
as to the purposes for which the ship is alleged to have come across
the ocean, to wit, the making more effective preparations in the ports
of Great Britain for carrying on war against the people of a friendly
nation.'
Birch, were brought on board the Nashville to Southampton, and
there set at liberty. An application was shortly afterwards made to
the borough magistrates on behalf of the master, who alleged that his
chronometer and ship’s papers had been taken from him by the Com-
mander of the Nashville, for a summons or warrant to be served on the
latter, calling upon him to show cause, “by production of the authority
under which he acts or otherwise," why he should not deliver up
these articles of property. The magistrates were of opinion that they
had no power to issue such a summons. The solicitors for the master
then applied to the Foreign Office, but received the answer that the
Secretary of State “had no jurisdiction or power to give authority to
the magistrates either to issue any summons or warrant, or to do, or
abstain from doing, anything in relation to the matter in question."-
Mr. Layard to Messrs. Oliverson, Lavie, and Peachey, 27th November,
1861.
THE NASHVILLE AT SOUTHAMPTON.
269
Chap. XI.
“ Her Majesty's Government have directed their inquiries to both
these points, and also to the state of the law as applicable to the facts
thus by them ascertained.
“ With regard to the first point, the Undersigned has to state that
the Nashville appears to be a Confederate vessel-of-war; her Com-
mander and officers have commissions in the so-styled Confederate
Navy; some of them have written orders from the Navy Department
at Richmond to report to Lieutenant Peagram 'for duty' on board the
Nashville ; and her crew have signed articles to ship in the Confederate
Navy.
“ In these circumstances the act done by the Nashville, of capturing
and burning on the high seas a merchant-vessel of the United States,
cannot be considered as an act 'voluntarily undertaken by individuals
not vested with powers generally acknowledged to be necessary to
justify aggressive warfare,' nor does it at all'approximate within the
definition of piracy.'
“ Such being the answer of Her Majesty's Government on the first
point raised by Mr. Adams, the Undersigned passes to the second.
“ The Undersigned stated to Mr. Adams, in his informal note of
the 23rd instant, that he had already given directions that no infringe-
ment of the Foreign Enlistment Act should be permitted in regard to
the Nashville. In fact, directions had already been given to prevent
the Nashville from augmenting her warlike force within Her Majesty's
jurisdiction in contravention of the Foreign Enlistment Act.
“With respect to the allegation made by Mr. Adams, that some of
the officers of the Nashville are to be put in command of vessels now
fitting out in British ports for purposes hostile to the Government of
the United States, the Undersigned can only say that, if reasonable
evidence can be procured to that effect, all parties concerned who shall
be acting in contravention of the Foreign Enlistment Act shall be
legally proceeded against, with a view to the punishment of the
persons and to the forfeiture of the vessels.
Having thus answered Mr. Adams upon the two points to which
his attention was called, the Undersigned has only further to say that,
if, in order to maintain inviolate the neutral character which Her
Majesty has assumed, Her Majesty's Government should find it
necessary to adopt further measures, within the limits of public law,
Her Majesty will be advised to adopt such measures.
" It is the earnest desire of Her Majesty to preserve intact the
friendly relations between Her Majesty and the United States of
America.
“ The Undersigned, &c.
(Signed) - RUSSELL."
Whilst the Nashville was still in dry dock, the United
States' war-steamer Tuscarora made her appearance
in Southampton Water. The subsequent history of
270
THE NASHVILLE AND TUSCARORA.
Chap. XI. the two ships, till they went to sea, cannot be more
clearly or succinctly told than in the following state-
ment furnished by the Admiralty. It supplies a good
example of the risks and annoyances which the meeting
of hostile vessels in a neutral port is likely to inflict
on the neutral, the precautions which it is necessary to
take, and the vigilance required in enforcing them.
“Statement of Facts with regard to the Tuscarora, United States' Vessel-
of-war, and the Nashville, a Vessel belonging to the so-styled
Confederate States.
'Noveñiber 21, 1861.–Nashville arrived at Southampton, and taken
into dock for caulking and other repairs.
“ December 15.-Tuscarora arrived, and anchored off entrance to
River Itchen.
“December 23.-Captain Patey reported, no repairs had been made
in Nashville beyond what were absolutely necessary, and that she
had not been in any way equipped more completely as a man-of-war.
January 10, 1862.-Captain Patey reported that Dockmaster at
Southampton had on previous night found two officers (one with
side-arms) and three men belonging to Tuscarora under Graving
Dock fence on pier between Docks; they stated that they were
stationed there by their Captain's orders to watch Nashville, and to
make a signal to their own ship should Nashville attempt to get under
way. Dockmaster removed these persons.
"January 10.-Captain Patey also reported that Tuscarora had
received 150 tons of coal, and had kept her steam up since her arrival,
with a spring on her cable, apparently ready for sea.
" January 11.---Captain Wilcox, of Her Majesty's ship Dauntless,
stationed in Southampton Water, informed Captains of Tuscarora
and Nashville that he had observed preparations for their departure,
and had instructions to prevent any hostilities in British waters, and
brought to their notice that the Law of Nations requires that twenty-
four hours should elapse before the departure of one belligerent ship
from a neutral port in pursuit of another; Captain Patey as Senior
Officer at Southampton also informed Captains of Tuscarora and
Nashville that he had received orders to detain one vessel until the
other had twenty-four hours' start. Captains of two vessels answered
they would conform to law; and Captain Craven (of Tuscarora)
claimed right of free access to and egress from 'waters of a nation
believed to be in amity with United States,'trusting that strict
impartiality would be observed between the two vessels. In reply
Captain Patey referred to fact of Captain Craven having sent officers
are
--
THE NASHVILLE AND TUSCARORA.
271
Chap. XI.
66
and men into Docks to watch Nashville, and also pointed out that a
boat, apparently armed, from the Tuscarora, had been observed
pulling in and out of the Docks without landing during the night.
Captain Craven gave assurance that this would not be repeated.
January 13.—Tuscarora left anchorage at 4 A.M., and proceeded
to anchor one mile west of Calshot light-ship. Returned at 4 P.M. to
former anchorage at entrance of Itchen river.
“January 15.--Tuscarora at 2 P.M. weighed, and passed Calshot.
“ January 16.-At 2 P.M. returned to original anchorage.
“January 20.—At 8 P.M. proceeded down Southampton Water, and
anchored outside Calshot Castle.
January 22.-At 10 A.M. returned to anchorage at mouth of Itchen
river.
“January 25.- Captain Patey reported Nashville coaled, and
necessary repairs completed, and Tuscarora ready for sea; also that,
in conversation with him, Captain Craven, of Tuscarora, had avowed
that he would do his utmost to render rule as to twenty-four hours'
start null and void, by constantly keeping up steam, and having slips
on her cable, so that the moment Nashville might move Tuscarora
would precede her, and claim priority of sailing, returning again
within twenty-four hours, and so actually blockading Nashville in a
neutral port.
“ January 26.--Under instructions Captain Patey obtained written
promises from Captains of Tuscarora and Nashville not to leave their
then positions without giving twenty-four hours' notice.
“ January 27.-In order to prevent any hostile proceedings between
the two vessels in British waters, a messenger was despatched in the
morning to Southampton with instructions to Captain Patey to require
Nashville to depart by 12 o'clock at noon on Tuesday, the 28th of
January, and Tuscarora on following day at same hour; but at
1 P.M., and before receiving these last-mentioned instructions, Captain
Patey telegraphed that Captain of Tuscarora had notified to him
that that ship would put to sea on the following day, namely, on the
28th January, at 11 A.M. To this telegram an answer was at once
sent that Tuscarora was accordingly to be allowed to proceed first;
and, under the circumstances, Captain Patey did not think it necessary
to acquaint the Captain of Tuscarora of the orders he (Captain Patey)
received subsequently on the afternoon of the 27th), requiring the
ship to quit Southampton.
January 28.-Captain of Tuscarora reported by letter to Captain
Patey that he should defer departure, in consequence of inclemency
of weather, until 29th, or first fine day. Captain Patey, in answer,
told Captain Craven that he saw nothing in the state of the weather
to prevent Tuscarora proceeding, and requested she would lose no
time in doing so, observing that, having received from Captain
Craven a written notification of his intention to proceed on the 27th,
at 11 A.M., he (Captain Patey) had not deemed it necessary to convey
272
THE NASHVILLE AND TUSCARORA.
Chap. XI.
to Captain Craven the instructions he had received for Tuscarora to
leave Southampton at noon on the 28th.
January 28.—Captain Patey directed by telegraph not to take
any steps, at present, to compel Tuscarora's departure.
January 29.–At 8:10 A.M. Tuscarora proceeded down Southampton
Water.
“ January 30. — Captain Patey, by telegraph, reports Tuscarora
at 2 P.M., remains in Yarmouth Roads, and he asks for instructions as
to Nashville's departure. Informed, in reply, that the time of Nashville's
departure will date from hour Tuscarora shall really go to sea, in
accordance with notice.
“Admiralty, January 30, 1862."
Captain Patey's letter of the 25th January, referred
to in the foregoing Memorandum, was as follows:-
Captain Patey to the Secretary to the Admiralty.
(Extract.)
"Southampton, January 25, 1862.
“I have the honour to request you will be pleased to bring under
the consideration of the Lords Commissioners of the Admiralty
whether it is intended to allow the American Federal ship-of-war
Tuscarora, and the vessel-of-war Nashville of the so-styled Confederate
States of North America to remain at this port for an indefinite period.
“The Nashville's necessary defects have been made good, and
she has been coaled ; and, judging from the frequent movements of the
Tuscarora up and down the Southampton Water, including one trip
through the Needles and round the Isle of Wight, that that ship is in
all respects ready for sea, I am induced to bring this matter under
the notice of their Lordships, because it appears to me from the course
pursued, and avowedly so made known to me by the Captain of the
Tuscarora in a conversation which I have had with that officer, he
will do his utmost to render the rule of twenty-four hours' start which
the Nashville may be inclined to take advantage of, null and void,
by constantly keeping up his steam, and having slips on his cable, so
that the moment Nashville moves Tuscarora will precede her, and
at once claim priority of sailing, returning to this port again within the
lapse of twenty-four hours; it hence follows that Nashville is closely
blockaded in a neutral port, and this is, without doubt, the special
object of the Tuscarora's visit to Southampton.
“I would also beg to point out to their Lordships the possibility
of the Tuscarora and Nashville coming into collision in a narrow
channel and at night, and the probability of Tuscarora, supposing
that the other ship had purposely run into her, opening fire on her,
and hence bringing on a grave difficulty in the matter. Under all the
circumstances of this peculiar case, I think it my duty to make this
communication to their Lordships, that they may take such steps as
may by them be deemed necessary, respectfully submitting that the
RULE OF TWENTY.FOUR HOURS.
273
Commanders of the Tuscarora and Nashville respectively should be Chap. XI.
called upon to give me a written notice of the date and hour they
intend to proceed to sea, and that having received such notice from
either one, the other should be immediately notified of the fact, and
that he would not be allowed to follow until twenty-four hours bad
elapsed.”
The rule that, when hostile ships meet in a neutral
harbour, the local authority may prevent one from sail-
ing simultaneously with or immediately after the other,
even though they may have entered without previous
notice that such a prohibition would be enforced, will
not be found in all books on International Law. The
recorded cases in which it has been appealed to are not
numerous, though they extend over a considerable
period of time. It is, however, a convenient and
reasonable rule; it has gained, I think, sufficient founda-
tion in usage; and the interval of twenty-four hours,
adopted during the last century in a few Treaties and in
some Marine Ordinances, has been commonly accepted
as a reasonable and convenient interval, though it may
perhaps be questioned whether a steamer, which can
always in a very few hours gain an offing that puts her
beyond the reach of pursuit, requires for her protection
so long a period as was formerly thought necessary
for sailing ships. There are, however, difficulties in
applying the rule, which are well exemplified in the
case of the Tuscarora and Nashville, Where there is a
considerable disparity of force, it is the interest of the
weaker party to get the start of his enemy; whilst the
latter will, if he be able, prevent this—will take what
adyantage he can of uncertain weather-and, if he goes
first to sea, will linger in the offing. The neutral
authority should be firm in detecting all manœuvres,
within the local limit of its jurisdiction, to frustrate or
elude the rule. The vessel which first came in should be
permitted, and may be required, to sail first, if ready for
sea; if not ready, she should not be suffered to delay the
T
274
RULE OF TWENTY-FOUR HOURS.
cor
Chap. XI. departure of her adversary; notice of an intention to
sail should be reasonable in point of time, and punctually
adhered to; and the right of priority should be lost by
failure to depart at the expiration of the notice, as
well as by a return before the end of the interval during
which the other belligerent is detained in port.
The practice of the late war has assisted to settle and
confirm this salutary rule. Another course, however,
1 "Les belligérants ne doivent, ni par eux-mêmes ni par leurs
orsaires, s'établir dans les mers neutres pour surveiller l'ennemi et
lai courir sus.
Ils ne doivent pas non plus rester en croisière dans les
mers neutres pour saisir l'ennemi à sa sortie des ports neutres ou amis.
Et lorsqu'ils ont été avec l'ennemi chercher asile dans un port, ils ne
doivent pas le poursuivre à sa sortie. On oblige généralement les
corsaires à ne sortir que vingt-quatre heures après le navire qu'ils
avaient poursuivi. Quant aux bâtiments de guerre, on exige seulement
la parole d'honneur du commandant de ne pas donner la chasse aux
bâtiments ennemis, et de ne les combattre qu'après vingt-quatre heures
depuis la sortie du port.”—De Pistoye et Duverdy, Traité des Prises
Maritimes, vol. i, p. 108.
"La priorité est très importante. En effet celui qui, étant le plus
faible, désire eviter un combat a un très grand intérêt à mettre la voile
vingt-quatre heures avant son adversaire, parce que cette avance lui
donne la presque certitude d'échapper à l'ennemi. L'usage adopté à
cet égard est que le bâtiment entré le premier a le droit de sortir
également le premier. Cependant, comme le retard qu'il mettrait à
effectuer son appareillage ne peut retenir son ennemi dans le port
pendant un temps plus long qu'il ne veut y rester, le commandant
entré le premier dans le port n'ayant exprimé aucune intention de
reprendre la mer le premier, le vaisseau entré le dernier qui desire
sortir doit prévenir les autorités du port vingt-quatre heures à l'avance.
Celles-ci font connaître la notification au vaisseau entré le premier afin
qu'il n'ait à profiter du délai et user de son droit de priorité. S'il ne
le fait pas, son ennemi peut mettre à la voile pendant les vingt-quatre
heures suivantes; mais s'il n'exécute pas son projet dans ce délai il
est dans la nécessité de faire une nouvelle notification et d'attendre un
nouveau laps de temps de vingt-quatre heures. Le délai court non
du moment de la notification du commandant, mais de celui de
l'appareillage réel, lorsqu'il a eu lieu immédiatement."-Hautefeuille,
Droits et Devoirs des Nations Neutres, vol. i, p. 366.
The discussion which arose in the case of the French ships under
M. de Castillon, and the squadron under Vice-Admiral Brodrick, both
anchored in the harbour of Cadiz in 1759, is stated in Ortolan,
Diplomatie de la Mer, vol. ii, p. 257.
RULÈ OF TWENTY-FOUR HOURS.
275
.
has been sometimes taken. This is to exact from the Chap. XI.
commanding officer of the ship which is the last to sail
his word of honour that he will not give chase to or
attack, within a certain time, the enemy who has
preceded him.
This alternative is preferred by some
authorities, on the ground that it not only avoids the
necessity for å delay which may be irksome and incon-
venient, but is in reality more efficacious, since an officer
who will certainly evade, if he can, a restriction which
is forced on him will not try to evade his word of honour.
The objection to it appears to lie in the difficulty of
making the promise specific enough to be effectual,
without fettering, more than is absolutely necessary, the
belligerent's right to engage his enemy when and where
he is able.)
The story of the Sumter and Iroquois, which belongs
to the same period, may be placed side by side
with that of the Nashville and Tuscarora. The rule
of twenty-four hours was enforced, as we have seen,
on the Tuscarora ; the Iroquois, as we are about to see,
contrived to avoid it, but all to no purpose.
The
Sumter I return once more to the career of that
reckless little cruiser - reached Martinique on the 9th
November. Preparing, as she then was, for a run across
the Atlantic, she had pressing need of coal. The Collector
at St. Pierre refused at first to permit it to be supplied;
but Captain Semmes obtained a letter from the Governor,
before which the scruples of the inferior official gave
way. She was not yet ready for sea when the United
States' steam-sloop Iroquois, a vessel superior to the
1 Hautefeuille (vol. i, p. 369) would extend the engagement to the
whole subsequent voyage of the ship which sails first; but this is
a restriction to which no naval officer could be reasonably asked to
submit.
2 “Having observed a large supply of excellent coal in the Govern-
ment dockyard as I pulled into the landing, I proposed to his Excellency
that he should supply me from that source upon my paying cost and
T 2
276
THE SUMTER AND IROQUOIS.
Chap. XI. Sumter in speed and of twice her weight and fighting
power, appeared in the broad expanse of water which
forms the bay or roadstead of St. Pierre. The shifts to
which the captain of the Iroquois had recourse, in
contempt (so far as he dared) of the neutrality of the
port, and his bitter disappointment, were related in his
official report to the Secretary of the Navy, and are best
told in his own words :-
"United States' Steamer . Iroquois,' off St. Pierre,
Martinique, November 17, 1861.
“I addressed a letter to the Department on the 11th instant, upon
my arrival at St. Thomas.
“On the day following, in the midst of coaling, a mail steamer
arrived, bringing information that the Sumter had just put in on the
9th to Port Royal, Martinique, in want of coals.
“I had been often led astray by false reports, but this seemed so
positive that I instantly ceased coaling, got my engines together, and
was off at 2 in the mid-watch for Martinique, arriving at St. Pierre in
thirty-six hours. On turning into the harbour I discovered a suspicious
steamer, which, as we approached, proved to be the Sumter, flying
the Secession flag, moored to the wharf, in the midst of this populous
"Sir,
expenses. He declined doing this, but said that I might have free
access to the market for this and other supplies.
"My paymaster and lieutenant returned, in good time, from St.
Pierre, and reported that they had found an abundance of excellent
coal, at reasonable rates, in the market, but that the Collector of the
Customs had interposed to prevent it from being sold to them.
Knowing that this officer had acted without authority, I addressed a
note to the Governor, reminding him of the conversation we had had
the day before, and asking him for the necessary order to overrule the
action of his subordinate. My messenger brought back with him the
following reply:-
". Fort de France, November 12, 1861.
46 To the Captain
"'I have the honour to send you the enclosed letter, which I ask
you to hand to the Collector of Customs, at St. Pierre, in which I
request him to permit you to embark freely as much coal as you wish
to purchase in the market.
". With the expression of my highest regard for the captain,
666 MAUSSION DE CONDE.'»
-My Adventures Afloat: a Personal Memoir of my Cruises and Services
in the Sunter and Alabama. By Admiral R. Semmes, late Confederate
States' Navy, 1869, pp. 233, 236.
THE SUMTER AND IROQUOIS.
277
town, quietly coaling. The town and shipping in the harbour were Chap. XI.
instantly all excitement. I could not attack her in this position, for
humanity's sake, even were I disposed to be regardless of the neutrality
of the port. I did not anchor, but cruised around the harbour within
half gun-shot of her during the night.
"In the morning a French man-of-war arrived from Port Royal, the
seat of government, only twelve miles distant. The Sumter had been
there for the last two days. The Government, it is true, had refused to
give her any of its coals, but had allowed her to come around to
St. Pierre, where she readily obtained them from some merchants
(English, I believe).
“She evidently had been received with courtesy at the seat of
Government, and this farce of the non-recognition of the Confederate
flag is played out by both France and England in the most flagrant
manner.
“I now addressed a letter to the Governor, assuming him to be
ignorant of the character of the Sumter, a copy of which I enclose.
I also enclose a translation of his reply. The Department will observe
that from the generous disposition of the Governor, the Sumter has
the same privileges as this vessel.
“The captain of the French war-steamer also addressed me a letter,
saying he was directed by the Governor to request me no longer to
compromise the neutrality of the French waters by establishing a
blockade within their jurisdiction, but to anchor, when every hospitality
and facility should be afforded me, or to take my position without the
distance of a marine league from shore. At the same time, that, while
under anchor weigh it was contrary to the police regulations of the
port to communicate with the shore.
“I consequently decided upon anchoring, which I had no sooner
done than the French commander paid me a visit, offered me every
civility and attention, saying that he did not doubt that all international
law would be respected by me; and in the course of conversation,
quoting from Wheaton, reminded me that one belligerent could not
depart until twenty-four hours after the other. I instantly got under
weigh, with him on board, fearing that the Sumter should do so before
me, as her steam was up.
“I have now accepted the alternative, and established myself at the
mouth of the harbour, without the marine league, with much anxiety
lest during the darkness of the night, under cover of the high land, the
Sumter should be able to get off without my being aware of it.
“The majority of the town is in favour of the Sumter ; and with
the utmost vigilance, which all on board exert, she may yet escape
some night for want of signals from the shore to give us notice
of her departure.
“ I am also in want of coal, and shall send over to St. Thomas
to-morrow for a supply, as well as provisions, stores, &c., for when I left
I did not bargain for this blockade.
278
THE SUMTER AND IROQUOIS.
Chap. XI.
“The Sumter seems in good condition. The Consul informs me
she has 120 men. She does not certainly appear to be in the dis-
organized state in which late accounts have represented her.
“She has latterly captured but two American vessels—one the brig
Joseph Parke, of Boston, on the 25th of September; the other the
schooner Daniel Trowbridge, of New Haven, on the 27th of October.
She has landed here fourteen prisoners on their parole. Three of the
Joseph Parlce's men (all foreigners) joined the Sumter.
'I regret to give the Government so long and unsatisfactory a
letter, but must avail myself of the opportunity for St. Thomas, which
offers to-morrow.
“I have, &c.
(Signed) “ JAMES S. PALMER, Commander.
• To Hon. Gideon Welles,
“Secretary of the Navy, Washington, D. C."
“P.S.—November 18.-I feel more and more convinced that the
Sumter will yet escape me, in spite of all our vigilance and zeal, even
admitting that I can outsteam her, which is a question.
“To blockade such a bay as this, which is almost an open roads ad,
fifteen miles in width, the surrounding land very high and the water
very bold, obliged, as we are by the neutrality laws, to blockade at
three miles' distance, it would require at least two more fast steamers,
and a vessel of war of any description in port to notify us by signal of
her departure, to give any reasonable hope of preventing her escape.
· Even now, moonlight though it be, she may yet creep out under
shadow of the land, and no one be able to perceive her, she being
always able to observe my position, open to seawards. Though I have
made arrangements to be informed by signal of her departure from
shore, I fear I cannot depend upon the parties, so fearful are they of
the authorities and of popular indignation.
“I have done all I can, and if she escapes me, we must submit to
the distress and mortification.
“I believe we have no vessel on this station except the Macedonia,
and there is no knowing when she may get up this way to learn our
situation.
“ I wish the Sumter were anywhere else except in this port, or
under French protection. The authorities here, under plea of neutrality,
are throwing every obstacle in my way, in the way of communicating
with the shore. They are so full of punctilio, and withal so polished,
that it is provoking to have anything to do with them."
(Enclosure 1.)
" United States' Steam-ship Iroquois,'
“Off St. Pierre, November 15, 1861.
“As circumstances prevent my paying my personal respects to your
Excellency or your representative at this place, I write to announce my
66 Sir,
THE SUMTER AND IROQUOIS.
279
arrival in the afternoon of yesterday, as well as to inform you that to Chap. XI.
my surprise I find a notorious steamer called the Sumter quietly
coaling at the wharves, and enjoying the hospitalities of the port.
“As your Excellency cannot be aware of the character of this
vessel, I denounce her to you as one that has been for some time
engaged in pirating upon the commerce of the United States, robbing,
burning, or otherwise destroying all American vessels which come within
her reach.
“May I not hope, therefore, that your Excellency, upon this repre-
sentation, will not allow her to enjoy the privileges I complain of, but
direct her to leave the protection of the French flag, and the immunities
of a French port ?
“I have, &c.
(Signed)
6. JAS. S. PALMER,
“Commanding U. S. Steamship Iroquois.
“ To his Excellency the Governor of Martinique.
(Enclosure 2.)
“ Gouvernement de la Martinique, Cabinet du Gouverneur,
“No. 430, Fort-de-France, le 15 Novembre, 1861.
(Translation.)
“ M. le Commandant,
“I have the honour to reply to the letter which you addressed me
this morning
“I am not ignorant, M. le Commandant, of the presence in the
roads of St. Pierre of a vessel belonging to the States of the South,
who profess to have formed a separate Confederation.
“To accomplish the generous intentions of the Emperor, I wish to
be hospitable to the vessels of the two belligerent parties, but I will
not, neither cannot, without violating the orders of His Majesty, divest
myself of the absolute neutrality that I ought to observe.
“This is to say to you, M. le Commandant, that if it is not my
intention to refuse an anchorage to a vessel belonging to the States
of the South, I offer to you, on the other hand, the same hospitality,
and the same facilities to the vessels belonging to the Government of
the Union, which you have the honour to command.
“ There exist, besides, international laws, that every civilized nation
scrupulously observes, and which I need scarcely recall to you, M. le
Commandant, nor to the Commandant of the Sumter.
“Accept, &c.
(Signed)
“LE ADMIRAL,
“Gouverneur de la Martinique, &c.
“M. le Commandant de l'Iroquois."
1
280
THE SUMTER AND IROQUOIS.
Chap. XI.
“Sir,
“ United States' Steam-ship 'Iroquois,' off St. Pierre, Martinique,
“ November 23, 1861.
"I think it is well in my present provoking and anxious position to
keep the Government informed by whatever opportunity may
offer.
“It is now the ninth day that I have been blockading the Sumter.
She lies still at the wharf, surrounded by more or less of a crowd day
and night, all anxious for her escape, sympathizing with their fellow
Frenchmen of the State of Louisiana, to which State they believe
the Sumter to belong. The authorities, from the Governor down, I
believe to be all in their favour. I directed the Consul the other day to
call upon the Governor and inform him that I regarded the attitude of
the authorities as unfriendly to the United States. I quote you the
Consul's reply
"I called on the Governor on Monday night, but could do nothing
more than to ask an audience for the next day, as his salon was full of
people, among them the Captain of the Sumter. When I saw him, he
said the sanitary regulations were such as were enforced on Monday,
and that he had no control over them. The vessel having gone beyond
the regular health and Custom-house limits, has lost the right of
regular pratique, the Governor of course repudiating anything like
unfriendliness, and regretting the necessity of submitting to the laws
in your case, and would be glad to see you in here at anchor to prove
the sincerity of his good wishes.'
Unfortunately for me the coming to an anchor involves the neces
sity of waiting twenty-four hours after the departure of the Sumter,
for I have consented to the Governor's expressed hope that I would
abide by all rules of international law; consequently I am obliged to
cruise outside, and run the risk of her escaping every night.
“ Thus far we have had the moon, but it is now waning fast, and,
with the most intense watching and devotion, I fear I may yet have to
report her escape. Would that there were another fast steamer to
watch the other point of the bay! I have some understanding with
some loyal people on shore to notify by signal of her departure.
“ The French will doubtless think it a great outrage upon their
neutrality, but they will have to pocket this, as I have been as forbear-
ing as they can expect, and nothing but the feeling of the impolicy of
bringing on hostilities between my country and France makes me
submit with anything like grace.
“I have, &c.
(Signed) “JAMES S. PALMER, Commanding.
$6 Hon. Gideon Welles,
- Secretary of the Navy, Washington, D. C.”
THE SUMTER AND IROQUOIS.
281
Chap. XI.
“ United States' Steam-ship 'Iroquois,' St. Thomas, W. I.,
Sir,
November 25, 1861.
“As I expected, I have to report the escape of the Sumter, to the
great dejection of us all, for never were officers and crew more zealous
for a capture.
“At 8 o'clock on the night of the 23rd, the signal was faithfully
made us from the shore, that the Sumter had slipped to the south-
ward. Instantly we were off in pursuit, soon at full speed, rushing
down to the southern part of the bay, but nothing was visible on the
dark background.
“A small steamer, apparently one plying between St. Pierre and
Port Royal, was off the point making signals, doubtless for the benefit of
the Sumter. But we could see nothing of her as we proceeded on, so
dark was the shadow thrown by the high land. Still we went on, all
searching the darkness in vain. So soon as
So soon as I had opened Port Royal
Point, and seen nothing on the now open horizon, I concluded that we
had passed her, or that she had doubled on us and gone to the north-
ward. I then turned, keeping close on the shore, looking into her
former anchorage, thinking she might possibly have returned.
“No sign of her there. We continued on to the northward, but
when we opened the port nothing of her this way.
"We were now at fault which way to steer. Something like smoke
being reported to seaward, I determined to start out, taking the direc-
tion to St. Thomas, to which place I was anxious to return, ere the
vessel with our coals and provisions should leave, and thus check at least
a small evil, for I now became hopeless of ever discovering the Sumter.
“I reached this port this morning, and found that the Dacotah,
which had arrived on the 21st from the East Indies, had taken in tow
my vessel, with her stores, and gone to mo
It is, of course, all conjecture where the Sumter will next cruise.
I learned at St. Pierre that she had purchased sea-jackets for her
crew, which may look like a cruise on our Northern coast, though
I question whether she is calculated for winter service in that quarter.
Should she continue in this vicinity, I will soon hear of her from the
constant arrivals here.
“I shall be glad to understand from the Government whether they
wish me to respect international law in the case of the Sumter, which
gives her so great immunity, and makes every foreign port her asylum.
“I was informed at Martinique that France would regard it as an
act of war if I attacked her within the marine league of the island.
“I have, &c.
(Signed) “JAMES S. PALMER, Commander.
" Hon. Gideon Welles,
"Secretary of the Navy, Washington, D. C.”1
me.
1 These despatches are extracted from Moore's Rebellion Record,
vol. ii, pp. 452-455.
282
THE SUMTER AND IROQUOIS.
Chap, XI.
The Sumter had in fact doubled, as Captain Palmer
supposed, and as he might perhaps have foreseen, since
the red lights which served him for signals were as
visible to his enemy as to himself; and she was
running northwards with all the speed she could muster
while the Iroquois was racing to the south. He fully
merited his disappointment. A ship which, after drop-
ping anchor, proceeds to station herself in the offing,
just beyond the marine league, keeps up, while there,
communication by boats with the shore, and gets her
enemy's movements signalled to her, grossly infringes
the neutrality of the port; and these acts, which the
Governor of Martinique was perhaps unable to prevent,
would not have been tolerated at Cherbourg, nor, as we
have already seen, at Southampton.
CHAPTER XII.
History of the Blockade continued.--Sinking of Stone-ships at Charleston
and Savannah. -Effect of the Blockade on the South.--Its Effect on
the Export and the Cultivation of Cotton.-Blockade-running.---
Great Britain urged by the Confederate Government to declare the
Blockade ineffective; by the Government of the United States
to prohibit Trade with Blockaded Ports.---Correspondence with
Mr. Mason; with Mr. Adams.-Remarks.-Nassau Trade.--Repres-
sive Measures adopted in the United States.-Fruitless Remonstrances
of Great Britain.-Doctrine of “ Continuous Voyages” applied to
Breaches of Blockade.-Decisions of the Supreme Court.--Remarks.
Blockade-running ultimately made unprofitable. - Trade with
Matamoros, and Questions raised by it.—Correspondence as to Mails
and Mail-bags.-Regulations as to persons captured in Blockade-
runners.-Case of the Emily St. Pierre.
THÉ difficulties with which the Federal Government
had to struggle in blockading an extended coast with a
hastily armed and comparatively slender force suggested,
at the approach of winter, a peculiar expedient for
economizing the services of its scattered marine, which
was thus described by the Secretary of the Navy :-
“One method of blockading the ports of the insurgent States, and
interdicting communication, as well as to prevent the egress of priva-
teers which sought to depredate on our commerce, has been that of
sinking in the channels vessels laden with stone. The first movement
in this direction was on the North Carolina coast, where there are
numerous inlets to Albemarle and Pamlico Sounds and other interior
waters, which afforded facilities for eluding the blockade and also to
the privateers. For this purpose a class of small vessels were purchased
in Baltimore, some of which have been placed in Ocracoke Inlet.
“Another and larger description of vessels were bought in the
eastern market, most of them such as were formerly employed in the
whale fisheries. These were sent to obstruct the channels of Charleston
harbour and the Savannah River; and this, if effectually done, will
prove the most economical and satisfactory method of interdicting
commerce at those points.”
284
SINKING OF STONE-SHIPS.
Chap. XII.
To each of the two latter places were sent in
November or December a fleet of old ships laden with
five or six thousand tons of stone. They were towed in
and sunk in several rows, so disposed as to obstruct the
navigation without impeding the flow of water. This
mode, said the officer employed to superintend the
operation at Charleston (he had been previously em-
ployed on a Commission for the improvement of the
harbour, and was, therefore, well acquainted with it),
“ is intended to establish at Charleston a combination
of artificial interruptions and irregularities resembling
on a small scale those of Hell Gate or Holmes Hole,
and producing, like them, eddies, whirlpools, and
counter-currents, such as to render the navigation of an
otherwise difficult channel hazardous and uncertain."
Being sunk inside the bar, or rather on both crests of it,
it was expected that the sand carried up and down by
the tides and the river would accumulate around them,
and that they would soon become firmly imbedded.
Of the six entrances or channels leading to Charleston
Harbour from the sea, there are but two, I believe, which
have as much as eleven feet of water; and only one---
the “ main ship channel”-is much used by vessels of
considerable burthen, the other being difficult and
The stone-ships were deposited in the main
channel.
This operation, which threatened to choke up or
1 Lord Lyons to Earl Russell, 2nd January, 1862.
% The whole operation was described with minute detail in a letters
from a looker-on, published in the New York Tribune. “ The work
of the expedition,” said the writer in concluding his narrative, “is a
complete success. If it seemed sometimes a sad one even to us, with
what feelings must the people of Charleston have looked on its pro-
gress ? All the operations of the fleet were in full sight of Moultrie,
Morris, and Sullivan Islands, and Sumter, but not a man could lift a
finger to imperil or arrest them. The fire which swept the streets of
half the city was a trivial misfortune compared with this final disaster.
Its distant results it is impossible to foretell with certainty, for it is
necessarily an experiment. An effort to blockade a tidal harbour like
narrow
2
SINKING OF STONE- SHIPS.
285
permanently injure the most flourishing and important Chap. XII.
harbours of the whole Southern coast, excited some
uneasiness in England. The Liverpool Shipowners’
Association addressed Lord Russell on the subject, as
one which seemed to touch the general interests of
commerce; and Lord Lyons was directed to make
representations to Mr. Seward. In America itself it
was variously regarded. “By some," wrote the British
Envoy, “it is characterized as an odious and barbarous
measure, not sanctioned by the usages of civilized
warfare. Others maintain that it is perfectly fair and
proper. “ The question seems to depend," he justly
observed, “ on the extent to which the harbours will be
permanently injured.”l
Mr. Seward, on being spoken to, declared at once
" that it was altogether a mistake to suppose that this
plan had been devised with a view to injure the
harbours permanently. It was, he said, simply a tem-
porary military measure, adopted to aid the blockade.
The Government of the United States had, last spring,
with a navy very little prepared for so extensive an
operation, undertaken to blockade upwards of 3,000
miles of coast. The Secretary of the Navy had reported
that he could stop up the “ large holes” by means of
his ships, but that he could not stop up the “small
ones.” It had been found necessary, therefore, to close
some of the numerous small inlets by sinking vessels in
the channels. It would be the duty of the Government
of the United States to remove all these obstructions as
soon as the Union was restored. It was well understood
that this was an obligation incumbent on the Federal
Government."
this presented a wholly new problem, which was worked out by
Captain Davis with great ingenuity and scientific skill; and for his
present success it is enough to know that all access by the main ship
channel is effectually closed. The bar is paved with granite, and the
harbour a thing of the past.”—Moore, vol. iii, p. 508.
1 Lord Lyons to Earl Russell, 29th November, 1861.
286
EFFECT OF THE BLOCKADE.
Chap. XII.
When asked whether the principal entrance to
Charleston Harbour had not been choked up, he said :
“ The best proof of the contrary was that in spite
of the sunken vessels and the blockading squadron a
British steamer laden with contraband of war had just
succeeded in getting in."
In fact the measure seems to have been ineffectual.
Whether from the body of water brought down by the
rivers, from the wash of the ebb tides increased by the
strong westerly winds to which those harbours are
exposed, or from other causes, the sunken stone-ships
do not appear to have produced any lasting obstruction,
nor to have added materially to the effectiveness of the
blockading squadrons.
It was not until many months after the commence-
ment of the blockade that it began to tell on the
resources of the Confederacy, or on the trade and
industry of Europe. Nor was the efficiency of it
really tested till that pressure came. The great staple
export of the South was cotton. Cotton is sown in the
spring; the crop begins to be gathered in September,
but it does not come into the market in any quantity
earlier than December; exportation is busiest during
January, February, and March, and the great bulk is
delivered by April. It was estimated that only about
750,000 bales, at most, of the crop of 1860 remained on
hand in the South at the time when the blockade
began. The crop of 1861 was about 2,750,000 bales-
a little more than half the total quantity consumed
in 1860;” and this supply, or so much of it as
could be properly picked, cleaned, and baled, would,
together with what remained from the previous year,
have been available for exportation in the winter and
spring of 1861-62. The quantity actually sent abroad,
however, up to July or August 1862 was reckoned
S
1 Lord Lyons to Earl Russell, 14th January, 1862.
5,200,754 bales. (American Annual Cyclop dia for 1861, p. 252.)
2
EFFECT OF THE BLOCKADE.
287
not to exceed 50,000 bales, the great bulk of which, Chap. XII.
but not the whole, went to England. About 1,000,000
bales had before that time been destroyed by the
Southerners themselves to prevent its falling into the
hands of “the enemy”-that is, of the Federal Govern-
ment. Mr. Anderson, a member of the British Legation,
writing in October 1862, after a journey into Kentucky,
Tennessee, and Arkansas, estimated the crop of that
year as at most 1,000,000 bales. “ It was calculated,'
he adds, 66 that even this small amount would be so
reduced, from the impossibility of getting it picked in
some districts owing to the loss of slaves, and from the
difficulty in baling and storing it, owing to the want of
hemp and other necessary materials, that the supply for
the market would be but trifling. If the war goes on,
no expectations are entertained of there being any crop
in 1863, as the ground will be thrown into corn. I rode
for miles over a cotton district in Tennessee, in which
almost every field was growing corn, and I was informed
that it was the same through the whole length of the
valley of the Mississippi.”% This information was con-
firmed by independent accounts from Virginia and
Alabama. In December 1862 a bale of cotton worth
about 40 dollars in the South could be sold for five
times that sum in New York. Very little was now
brought to the coast. What there was remained stored
up in the interior; and its owners—or at any rate their
neighbours were ready to make a bonfire of it when-
ever there was danger of its being reached by the
Federal armies.
Whilst the chief industry of the South languished
for want of a market, and the whole country became
rapidly impoverished, the supply of all goods customarily
imported from abroad became almost entirely exhausted
-a calamity made all the more severe by the fact that
1 These figures are taken from a report of Mr. Bunch, British Consul
at Charleston. (Consul Bunch to Earl Russell, 15th August, 1862.)
2 Mr. Anderson to Mr. Stuart, 1st October, 1862.
288
BLOCKADE-RUNNING.
Chap. XII. the Confederated States had hardly any domestic manu-
factures. Articles, not merely of luxury but of comfort
and convenience, for which they had been wont to
depend on their trade with the North and with Europe,
rose exorbitantly in price. Civilization, by multiplying
our wants, by the division of labour which it introduces,
and by opening regular channels of exchange, increases
our dependence on one another; and, if we consider
how many things every civilized people imports which
it could ill do without, we may understand, though
imperfectly, what such a people must suffer from an
almost total stoppage of foreign trade.
One effect of this pressure was to impart activity to
blockade-running. As the first winter of the war passed
away --- as summer followed spring, and it became
evident that both parties had strength and resolution
for a long struggle—the temptations held out by this
new field of mercantile adventure necessarily increased.
During the first year the trade had been chiefly carried
on by sailing schooners and small steamers owned in the
South, running from one Southern port to another, and
1 “The almost total cessation of external commerce for the last two
years has produced the complete exhaustion of the supply of all articles
of foreign growth and manufacture, and it is but a moderate computa-
tion to estimate the imports into the Confederacy at 300,000,000 dollars
for the first six months which will ensue after the Treaty of Peace.
The articles which will meet with most ready sale (and in enormous
quantities), as soon as our country is open to commerce, are textile
fabrics, whether of wool, cotton, or flax; iron and steel, and articles
manufactured therefrom in all their varieties ; leather and manufactures
of leather, such as shoes, boots, saddlery, harness, &c.; clothing of all
kinds; glass; crockery; the products of the vine, whether wines,
brandies, or liqueurs ; silk and all fabrics of silk; hats, caps, &c.; the
large class of commodities known as “ articles . de Paris ;” the
“comestibles” of France, including not only preserved meats, game,
and fish, but fruits, vegetables, confectionery, and sweetmeats; salt;
drugs; chemicals; stationery; manufactures of brass, lead, pewter,
tin; together with an innumerable variety of other articles of less
importance.”—Mr. Benjamin to Mr. Mason, 11th December, 1862.
(This was a despatch written with a view to its being communicated to
Earl Russell.)
BLOCKADE - RUNNING.
289
from thence to Cuba. Even after the season for the Chap. XII.
export of cotton had arrived, the ships engaged in the
trade under the British flag were at first few. British
merchants entered it, and British capital flowed into
it, by degrees. Cargoes were now despatched on the
joint account of several speculators, each taking his
share of profit and loss ; or a vessel carried out at a high
rate of freight the separate ventures of a number of
individual shippers. The outward cargoes were com-
monly of a most miscellaneous character, and consisted
chiefly of such articles of personal and domestic use as
were likely to fetch a high price in the South; the return
cargoes were almost exclusively cotton, compressed by
mechanical contrivances into the smallest possible bulk.
The ships bound on these voyages were never advertised,
nor was their destination publicly made known, and it is
impossible to form anything like an estimate of the extent
to which the traffic was really carried on, or the number
of persons concerned in it. The frequent recurrence,
however, of the same names in connection with it,
points to the conclusion that the bulk of it was at
all times in a few hands, and that the chief agents
were persons who had been interested, before the war,
in Southern trade. Of twenty steamers which are said
to have been kept plying in 1863 between Nassau
and two of the blockaded ports, seven belonged to a
mercantile firm at Charleston who had a branch house
at Liverpool, and through whom the Confederate Go-
vernment transacted its business in England.
The extension of blockade-running was evidently
1 In the list, furnished by Mr. Mason, of vessels entered and cleared
at the port of Charleston from 1st October, 1861, to the end of March
1862, 12 are entered as sailing under the British flag, and 65 under
that of the Confederacy.
2 The name of the Charleston firm was “ John Fraser & Co.;" that
of the Liverpool house “Fraser, Trenholm & Co.” Of the five members
of the house four, I believe, were South Carolinians and one a British
subject.
2
ប
290
CAUSES WHICH PROMOTED BLOCKADE-RUNNING.
Chap. XII. due to two causes the large profit which it offered to
the bold and fortunate adventurer, and the imperfect
effectiveness of the blockade itself. The former may be
measured by the prices paid for cotton at Liverpool
and for manufactured goods at Charleston; whilst the
fact that three or four steamers a week in the cotton
season made the voyage between the Southern coast and
Nassau would be enough to prove the latter. The
Federal and Confederate Governments, in the repre-
sentations which they addressed to Great Britain from
opposite sides and for diametrically opposite purposes,
were more or less embarrassed by the combination of these
two circumstances, neither of which could be denied,
and on both of which, indeed, they both laid stress.
The United States, affirming that the blockade was
effective, complained in the same breath that it was
constantly broken ; the Confederates, whilst they declared
that it was ineffective and ought not to be respected,
enlarged upon the straits to which their country was
reduced by the exclusion of all foreign goods, and on
the enormous profits which might be secured by Great
Britain, could she determine to open the trade by force
and pour in a supply. The truth is, that it was quite
1 This seems to have been the case during the first five months of
1863. “Of seven steamers which the Undersigned alone has kept
plying on the sea between said ports, and which have performed no less
than thirty-two round voyages within these twelve months just elapsed,
aggregating a return cargo of over 21,000 bales of cotton, not one has
ever been stopped in her trade, or in any manner impeded in her pro-
gress, by the interference of the blockading force; all of them have
carried out successfully their adventure, with the exception of the
Kate and the Stonewall Jackson, which were lost by mere accident, the
one as she ascended the river near Wilmington, and the other by being
stranded on the bar at Charleston. Among the said steamers was
peculiarly distinguishable the Margaret and Jessie for the precision and
steadiness of her voyages, having performed, in less than five months, five
complete trips, with a full return cargo of cotton to Nassau, aggregating
3,714 bales, as may be seen by the sworn declaration of J. B. Lafitte,
and the certified statement of the Custom-house Collector at this port
hereto annexed."--Mr. Trenholm to Governor Bayley, 3rd July, 1863.
EFFECT OF STEAM NAVIGATION.
291
effective enough to make the risk of capture consi- Chap. XII.
derable, swell the blockade-runner's profits, and inflict
severe suffering both on the Confederate States and on
England, but that it was not effective enough to make
the risk prohibitory. It was maintained, to a great
degree, by cruising-vessels which kept watch along an
immense coast-line. Cruisers driven by steam can now
patrol a much greater space than could formerly be
covered by sailing ships. Indeed, whether cruising or
at anchor, the blockader is comparatively independent
of weather; he may defy to a great degree the winds by
which in former times squadrons were frequently blown
away; while the increased range and weightier metal of
modern ordnance give him a longer reach, and enable him
to deliver a more crushing blow. But to the nimble and
wily adversaries whom it his duty to baffle and intercept,
the fleetness and handiness which steam-power confers
are perhaps more advantageous still. They can seize
opportunities, profit by dark nights or thick weather,
wind through difficult channels, creep under the shadow
of the land, and by a sudden exertion of speed scud
away from an enemy who may be swifter than them-
selves, but cannot chase them to any distance lest he
leave his station unguarded. If the history of the
blockade were written, it would be a history of the
daring and adroit use of these advantages by men
rendered expert by practice. As the nature of the
risks to be encountered, and the precautions to be
observed, became better known, vessels began to be
built specially adapted for this purpose. In the Clyde, as
I remember, any observer might have noticed in 1863
and 1864 more than one speedy and insidious-looking
craft fitting for sea-long, very low, drawing little
water yet with considerable stowage, painted of a dull
greenish-gray colour, with a short, raking funnel or pair
of funnels, and nothing aloft to catch the eye. These
were blockade-runners of the newest pattern.
U 2
292
THE BLOCKADE.
Chap. XII.
Mr. Mason, who continued to reside in London until
the autumn of 1863, in the hope of being received as
accredited Minister for the Confederate States, was
earnest and unremitting in his efforts to induce the
British Government to declare the blockade ineffective,
and throw open the Southern ports to trade. He for-
warded to Lord Russell from time to time long lists of
vessels which had succeeded in entering and sailing from
Southern ports, and he urged that to recognize such a
blockade as effective was inconsistent with the definition
adopted in the Declaration of Paris :-
"It
may be readily admitted that the fact that various ships
entering or leaving a port have successfully escaped a blockading
squadron does not show that there may not have been an evident
danger in so entering or leaving it; but it certainly does show that the
blockade was not, in the language of the Treaty of Paris, ' maintained
by a force sufficient really to prevent access to the coast of the enemy.'
“I have, therefore, the honour to request, for the information of my
Government, that your Lordship will be good enough to enable me to
solve the doubt entertained by the President of the Confederate States
as to the construction placed by the Government of Her Majesty on
the text of the Convention of Paris, as accepted by the Government of
the Confederate States in the terms hereinbefore cited, that is to say,
whether a blockade is to be considered effective when maintained at an
enemy's port by a force sufficient to create an "evident danger' of
entering or leaving it; and not alone where sufficient 'really to
prevent access.
On the 10th February, 1863, Lord Russell wrote as
follows:
Sir,
Foreign Office, February 10, 1863.
“I have the honour to acknowledge the receipt of your letter of the
January, referring to the letter which you addressed to me on the
7th of July last, respecting the interpretation placed by Her Majesty's
Government on the Declaration with regard to blockades appended to
the Treaty of Paris.
“I have, in the first place, to assure you that Her Majesty's
Government would much regret if you should feel that any want of
respect was intended by the circumstance of a mere acknowledgment
of your letter having hitherto been addressed to you.
“With regard to the question contained in it, I have to say that
11
>
1 Mr. Mason to Earl Russell, 7th July, 1862,
REMONSTRANCES OF MR. MASON.
293
Her Majesty's Government see no reason to qualify the language Chap. XII.
employed in my despatch to Lord Lyons of the 15th of February last.
It appears to Her Majesty's Government to be sufficiently clear that
the Declaration of Paris could not be intended to mean that a port
must be so blockaded as really to prevent access in all winds, and inde-
pendently of whether the communication might be carried on in a dark
night, or by means of small low steamers or coasting craft creeping
along the shore; in short, that it was necessary that communication
with a port under blockade should be utterly and absolutely impossible
under
any
circumstances.
“In further illustration of this remark, I may say there is no doubt
that a blockade would be in legal existence although a sudden storm of
change of wind occasionally blew off the blockading squadron. This is
a change to which, in the nature of things, every blockade is liable.
Such an accident does not suspend, much less break, a blockade,
Whereas, on the contrary, the driving off a blockading force by a
superior force does break a blockade, which must be renewed de novo,
in the usual form, to be binding upon neutrals.
“ The Declaration of Paris was, in truth, directed against whąt
were once termed 'paper blockades;' that is, blockades not sustained
by any actual force, or sustained by a notoriously inadequate naval
force, such as the occasional appearance of a man-of-war in the offing,
or the like.
“The adequacy of the force to maintain the blockade must indeed
always, to a certain extent, be one of fact and evidence; but it does
not appear that in any of the numerous cases brought before the prize
Courts in America the inadequacy of the force has been urged by those
who would have been most interested in urging it against the legality
of the seizure.
“The interpretation, therefore, placed by Her Majesty's Govern,
ment on the Declaration of Paris was that a blockade, in order to be
respected by neutrals, must be practically effective. At the time I
wrote my despatch to Lord Lyons, Her Majesty's Government were of
opinion that the blockade of the Southern ports could not be otherwise
than so regarded; and certainly the manner in which it has since been
enforced gives to neutral Governments no excuse for asserting that the
blockade has not been efficiently maintained.
“ It is proper to add that the same view of the meaning and effect
of the Article of the Declaration of Paris on the subject of blockades
which is above explained was taken by the Representative of the United
States at the Court of St. James's (Mr. Dallas), during the communica-
tions which passed between the two Governments some years before
the present war, with a view to the accession of the United States to
that Declaration.
“I am, &c.
(Signed)
“ RUSSELL"
294
THE BLOCKADE.
-
Chap. XII;
Mr. Mason renewed his remonstrances, reverting to
the terms of the Paris Declaration :-
“The terms of that Convention are, that the blockading force must
be sufficient really to prevent access to the coast. No exception is made
in regard to dark nights, favourable winds, the size or model of vessels
successfully evading it, or the character of the coast or waters blockaded;
and yet it would seem from your Lordship’s letter, that all these are to
be taken into consideration, on a question whether the blockade is or is
not to be respected.
“It is declared in that letter that it appears to Her Majesty's
Government to be sufficiently clear that the Declaration of Paris could
not have been intended to mean that a port must be so blockaded in all
winds, and independently of whether the communication might be
carried on of a dark night, or by means of small low steamers or coast-
ing craft creeping along the shore.' As a general rule, the ports and
harbours of the Confederate States are obstructed by bars, which do
not admit the passage of large vessels. What might be considered
a 'small' or a 'low' steamer, coming in from sea to the port of New
York, would, at one of those Southern ports, be rated a vessel of very
fair size when referred to the ordinary stage of water on its bar; yet
I look in vain in the terms of the Convention referred to for any
authority to expound them in subordination to the depth of water, or
the size or mould of vessels finding ready and comparatively safe access
to the harbour.
*
*
*
*
“In regard to the character of this blockade, to which your Lordship
again adverts in the remark that the manner in which it has been
enforced gives neutral Governments no excuse for asserting that it has not
been efficiently maintained, although I have not been instructed to make
any further representations to Her Majesty's Government on that subject
since its decision to treat it as effective, I cannot refrain from adding,
that for many months past the frequent arrival and departure of vessels
(most of them steamers) from several of those ports have been matters
of notoriety. A single steamer has evaded the blockade successfully,
and most generally from Charleston, more than thirty times. And
within a few days past it has been brought to my knowledge that two
steamers arrived in January last, and within ten days of each other, at
Wilmington (North Carolina) from ports in Europe, one of 400 and the
other of 500 tons burthen, both of which have since sailed from Wil-
mington, and arrived with their cargoes at foreign ports. I cite these
only as the latest authenticated instances. And as another remarkable
fact, it is officially reported by the Collector at Charleston that the
revenue accruing at that port from duties on imported merchandize
during the past year, under the blockade, was more than double the
receipts of any one year previous to the separation of the State ; and
REMONSTRANCES OF MR. MASON.
295
this although the duties under the Confederate Government are much Chap. XII.
lower than those exacted by the United States.
“As regards other portions of your Lordship's letter, I may freely
admit, as it is there stated, that a blockade would be in legal existence
although a sudden storm or change of wind might occasionally blow off
the blockading squadron. Yet, with entire respect, I do not see how
such principle affects the question of the efficiency of such blockade
whilst the squadron is on the coast. And again, whilst I am not
informed whether or no a defence resting on the inadequacy of the
blockading force has been urged in cases of capture before the Prize
Courts in America, I can well see how futile such defence would
be when presented on behalf of a neutral ship whose. Government
had not only not objected to, but had admitted, the sufficiency of the
blockade."1
Lord Russell replied :-
6. Sir,
"Foreign Office, February 27, 1863.
“I have the honour to acknowledge the receipt of your further letter
of the 18th instant on the subject of the interpretation placed by Her
Majesty's Government on the Declaration of the principle of blockade
made in 1856 made by the Conference at Paris.
“I have already, in my previous letters, fully explained to you the
views of Her Majesty's Government on this matter; and I have nothing
further to add in reply to your last letter, except to observe that I have
not intended to state that any number of vessels of a certain build or
tonnage might be left at liberty freely to enter a blockaded port without
vitiating the blockade, but that the occasional escape of small vessels
on dark nights, or under other particular circumstances, from the
vigilance of a competent blockading fleet, did not evince that laxity
in the belligerent which enured, according to international law, to the
raising of a blockade.
“I am, &c.
(Signed) “ RUSSELL.”
Besieged on the one side by the expostulations of
Mr. Mason, the Queen's Government had to reply, on
the other, to the complaints of Mr. Adam It was the
“painful conviction” of the American Minister that
there was in Great Britain "a systematic plan to violate
the blockade.'' 66 The toleration of such conduct in
subjects of Great Britain is surely a violation of neu-
1 Mr. Mason to Earl Russell, 18th February, 1863.
296
-
BLOCKADE-RUNNING.
Chap. XII. trality.” “If, in some cases, the American Government,
driven to the necessity of applying more stringent mea-
sures of prevention than it desires to this illicit commerce,
should happen occasionally to involve an innocent party
in the suspicion attached to so many guilty ones, it must
seek its justification in the painful necessity consequent
upon the inefficiency of the British law to give it that
protection which, as a friendly nation, it would seem
entitled to enjoy."1
“It can scarcely be supposed that so onerous a task as a veritable
blockade will be undertaken by any nation for causes not deemed of
paramount necessity, or will be persevered in one moment longer than
those causes continue to operate. I am very sure that it is the desire
of the Government of the United States to accelerate the period when
the blockade now in operation may be safely raised. To that end it is
bending all its efforts ; and in this it claims to be mindful, not simply
of the interests of its own citizens, but likewise of those of all friendly
nations. Hence it is that it views with deep regret the strenuous
efforts of evil-disposed persons in foreign countries, by undertakings
carried on in defiance of all recognized law, to impair, so far as they
can, the efficacy of its measures, and, in a corresponding degree, to
protract the severity of the struggle. Hence it is, likewise, that it has
been profoundly concerned at the inefficacy of the laws of Great
Britain, in which a large proportion of the undertakings originated, to
apply any adequate policy of prevention. For I doubt not your Lord-
ship will see, at a glance, the embarrassment in which a country
is necessarily involved by complaints raised of the continued severity
of the blockade by a friendly nation which, at the same time, confesses
its inability to restrain its subjects from stimulating the resistance that
necessitates a continuance of the very state of things of which they
make complaint.
“ That a sense of the difficulties consequent upon the action of such
persons prompted the enactment of the Statute of His Majesty George
the Third, of the 3rd of July, 1819, is made plain by the language of
its preamble. It is therein stated that it was passed because the laws
then in force were not sufficiently effectual to prevent the evil com-
plained of. It now appears, from the substance of the representations
which I have heretofore had the honour to make to your Lordship, that
the provisions of that law are as little effectual in curing the evil as
those of any of its predecessors. But I am pained to be obliged to
ܥ܀
1 Mr. Adams to Earl Russell, 30th April and 12th May, 1862.
COMPLAINTS OF MR. ADAMS.
297
gather from the concluding words of your Lordship's note the expres- Chap. XII.
sion of an opinion that the United States, in the execution of a measure
conceded to be correct, as well as justified by every precedent of inter-
national law as construed by the highest British authorities, cannot
expect that Great Britain should frame new Statutes to remedy the
deficiency of its own laws to prevent what it acknowledges, on the face
of that Statute, to be evils created by its own refractory subjects. I
must be permitted to say, in reply, that, in my belief, the Government
of the United States would scarcely be disposed to make a similar
reply to Her Majesty's Government were the relative position of the
two countries to be reversed.
“Permit me, in conclusion, to assure your Lordship that the
grounds upon which the representations I have had the honour to
make have not been hastily considered. So far from it, the extent of
the evil complained of has been under rather than over-stated. I have
now before me a list of eleven steamers and ten sailing vessels that have
been equipped and despatched within thirty days, or are now preparing,
freighted with supplies of all kinds for the insurgents, from one port of
Great Britain alone. These supplies I have reason to believe to be
conveyed to Nassau, which place is used as an entrepôt for the conve-
nience of vessels under British colours employed for the sole purpose
of breaking the blockade. I have reasons for supposing that the busi-
ness is reduced to a system emanating from a central authority situated
in London; and further, that large sums of money have been contri-
buted by British subjects to aid in carrying it on. If the United
States havę, in any of their relations with Her Majesty's Government,
committed some act not within the legitimate limits of international
law which justifies the declaration of a disposition not to provide
against such obvious violations of the neutrality proclaimed at the out-
set of this deplorable struggle, I trust I may be permitted to ask that
it may be so clearly presented to their consideration by your Lordship
as to supply the means either of explanation or of remedy.”l
To these representations it was replied in effect that
they were founded on a misconception of the duties of
the Government of a neutral nation. It is not the duty
of such a Government to enforce, or assist in enforcing,
either by its municipal laws or by the arbitrary action
of the Executive, blockades which a belligerent may
think fit to institute. The Foreign Enlistment Act, to
which Mr. Adams had referred, was passed for an entirely
different purpose, and to prohibit enterprises of a very
1 Mr. Adams to Earl Russell, 8th May, 1862,
298
ANSWERS OF EARL RUSSELL.
Chap. XII. different character from mere breaches of blockade; and
to class them together was to confound two things quite
distinct from one another. Severe as had been the loss
and suffering which the blockade had inflicted on the
people of Great Britain, the Government had never
sought to take advantage of its irregularities and obvious
imperfections in order to declare it ineffective. “They
have, to the loss and detriment of the British nation,
scrupulously observed the duties of Great Britain
towards a friendly State." The penalty which the
blockade-runner risks, and which the law of nations
attaches to his adventure, is capture and condemnation.
This is the only penalty, “In calling upon Her
Majesty's Government to prohibit such adventures, you
in effect call upon Her Majesty's Government to do that
which it belongs to the cruisers and the Courts of the
United States to do for themselves." ]
It is certain that this answer was just, and that the
American Envoy was betrayed by the annoyance, which
he naturally shared with his Government, at seeing
blockade-running prosecuted on so large a scale, into a
clearly untenable position. Not only is it a settled rule
that to enforce a blockade is the right of the belligerent,
and is not the duty of the neutral, but it is necessary
that this should be the rule. The test of a valid blockade
lies in its effectiveness; and this depends on the force
which the belligerent is able to concentrate on the
blockaded port, and the vigilance and impartiality with
which he uses it. If it be eluded and set at nought, he
has only himself to blame. But give him a right to
call on the neutral to protect him by punishing blockade-
running as a crime, and he is practically relieved from
the necessity of protecting himself. The test disappears ;
disputes between belligerent and neutral would inces-
santly recur, and with the test would disappear also the
only security we have against an indefinite extension of
1 Earl Russell to Mr. Adams, 6th and 10th May, 1862.
THE NASSAU TRADE.
299
the evils which this form of warfare is calculated to Chap. XII.
inflict on industry and peaceful trade.
These considerations are obvious enough, and it is as
obvious that they are not affected by the scale on which
blockade-running is pursued -- in other words, by the
degree to which a particular blockade is ineffectual.
Indeed, if there be a case to which they apply with
peculiar force, it is that of a blockade maintained, or
attempted to be maintained, for months and years, of the
whole coast of a large and populous country, with which
foreigners are accustomed to carry on an important trade.
In such a case blockade-running can scarcely fail to be
extensive, and it is sure to acquire the method and all
the machinery of a regular business. But it is precisely
in such a case that the test ought to be most firmly main-
tained and most strictly applied.
The British island of New Providence, in the
Bahamas, became the favourite resort of ships employed
in these enterprises. Situated in close neighbourhood
to the coast of Florida, and within three days' sail of
Charleston, it offered singular facilities to the blockade-
The harbour of Nassau, usually quiet and
almost empty, was soon thronged with shipping of all
kinds; and its wharves and warehouses became an
entrepôt for cargoes brought thither from different quar-
ters. Agents of the Confederate Government resided
there, and were busily employed in assisting and
developing the traffic.
It was natural that under these circumstances the
trade of Nassau should be regarded with extreme jea-
lousy by the Government of the United States. The
sudden and extraordinary growth of that trade had been
entirely due to the vicinity of the island to the Southern
coasts. Of the goods sent thither it was certain that
a very large proportion would find their way to the
blockaded ports unless stopped on the passage; and there
was little room for doubt that these ports were the true
runner.
300
THE NASSAU TRADE,
Chap. XII, destination of many cargoes, which, though they might
be nominally consigned to Nassau merchants, were really
intended to be transhipped and forwarded on account and
at the risk of the original shippers, or of consignees in
the South. Some part of this commerce was carried on
from New York itself; and the American Government
determined that, if they could not stop the trade alto-
gether, they would at least prevent it from drawing its
supplies from their own shores.
An Act of Congress, passed on the 26th May, 1862,
empowered the Secretary of the Treasury to refuse a
clearance to any vessel “ laden with goods, wares, or
merchandize for a foreign or domestic port, whenever he
shall have satisfactory reason to believe that such goods,
wares, or merchandize, or any part thereof, whatever
may be their ostensible destination, are intended for
ports or places in possession or under the control of
insurgents against the United States." It further
authorized the Collector at any port, on the granting of
a clearance, to exact, should he deem it necessary under
the circumstances of the case, a bond from the master
or owner that the cargo should be delivered at the desti-
nation for which it is cleared, “and that no part thereof
shall be used in affording aid or comfort to any persons
or parties in insurrection against the authority of the
United States."
The proceedings of the Executive are thus described
by Mr. Seward :-
“On the 14th of April, 1862, before the Act of Congress was
passed, it had been reported to the President that anthracite coal was
being shipped from some of the ports of the United States to Southern
ports within, and to other Southern ports without, the United States,
for the purpose of supplying fuel to piratical vessels which were
engaged in depredating on the national commerce on the high seas.
The Secretary of the Treasury therefore, by authority of the President,
who is charged with the supreme duty of maintaining and executing
the laws, issued to the Collector of the Customs at New York and
other ports the following instructions:--Clear no vessels with anthra-
PREVENTIVE MEASURES.
301
cite coal for foreign ports, nor for home ports south of Delaware Bay, Chap. XII.
till otherwise instructed.' It was thereupon represented to the Presi-
dent that this order was unnecessarily stringent and severe upon
general commerce, because it prohibited the exportation of coal to ports
situated so far from the haunts and harbours of the pirates that the
article would not bear the expense of transportation to such haunts and
harbours; and therefore the Secretary of the Treasury, by the President's
authority, on the 18th of May issued a new instruction on the same
subject to the Collectors of the Customs, which was of the effect follow-
ing :-The instructions of the 14th ultimo concerning the prohibition
of the exportation of coal are so modified as to apply only to ports
north of Cape St. Roque, on the eastern coast of South America, and
west of the fifteenth degree of longitude east. Coal may be cleared to
other foreign ports as before until further directed.
“The subject of supplies of coal and other merchandize in the
meantime having engaged the attention of Congress with the result of
the passage of the law before-mentioned, the Secretary of the Treasury,
on the 23rd of May last, and as speedily as possible after the approval
of the law, issued the following instructions to the Collectors of the
Customs of the United States :-Until further instructed you will
regard as contraband of war the following articles, viz., cannons, mor-
tars, fire-arms, pistols, bombs, grenades, firelocks, flints, matches,
powder, saltpetre, balls, bullets, pikes, swords, sulphur, helmets or
boarding caps, sword-belts, saddles and bridles, always excepting the
quantity of the said articles which may be necessary for the defence of
the ship and of those who compose the crew, cartridge bag material,
percussion and other caps, clothing adapted for uniforms, rosin, sail.
cloth of all kinds, hemp and cordage, masts, ship-timber, tar and pitch,
ardent spirits, military persons in the service of the enemy, despatches
of the enemy, and articles of like character with those specially
enumerated.
You will also refuse clearances to all vessels which, whatever the
ostensible destination, are believed by you, on satisfactory grounds, to
be intended for ports or places in possession or under the control of
insurgents against the United States, or that there is imminent danger
that the goods, wares, or merchandize, of whatsoever description, will
fall into the possession or under the control of such insurgents. And
in all cases where, in your judgment, there is ground for apprehension
that any goods, wares, or merchandize shipped at your port will be used
in any way for the aid of the insurgents or the insurrection, you will
require substantial security to be given that such goods, wares, or
merchandize shall not in any way to be used to give aid or comfort to
such insurgents.
"You will be especially careful, upon applications for clearances,
to require bonds, with sufficient sureties, for fulfilling faithfully all the
conditions imposed by law or departmental regulations, from shippers of
the following articles to the ports opened, or to any other ports from
302
COMPLAINTS OF NASSAU MERCHANTS.
Chap. XII. which they may easily be, and are probably intended to be, re-shipped
in aid of the existing insurrection, namely, liquors of all kinds, coals,
iron, lead, copper, tin, brass, telegraphic instruments, wire, porous cups,
platina, sulphuric acid, zinc and all other telegraphic materials, marine
engines, screw propellers, paddle-wheels, cylinders, cranks, shafts,
boilers, tubes for boilers, fire-bars, and every article whatsoever which
is, can, or may become applicable for the manufacture of marine
machinery or for the armour of vessels.'"]
Under these instructions several vessels bound from
New York to Nassau were refused a clearance, and the
masters of others were informed that they could only be
permitted to sail on giving security, according to the
terms of the Act of Congress, that their cargoes should
not be shipped, after arriving at Nassau, to any place in
the Confederate States, or otherwise disposed of “to the
aid and comfort” of the insurgents.
These measures were loudly complained of by the
Nassau merchants. They had been in the habit, they
said, both of importing largely provisions and manufac-
tured articles from the United States, and of having the
commodities which they ordered in England sent by the
Cunard steamers to New York, and thence re-shipped to
Nassau; these commodities were wanted in the colony,
and the detention of them was creating serious loss and
inconvenience. Some declared that they had never run
the blockade, nor shipped cargoes to any Southern State,
and had no intention of doing either of these things.
Others insisted that they had a right, as neutrals, to trade
with either belligerent; and all contended that, when
goods were sold in an open market, the vendor could
not reasonably be held answerable for their ultimate
destination.
These remonstrances were supported by the British
Government, and a discussion arose, which was pro-
tracted through many months. It was admitted, on the
part of Great Britain, that a belligerent Power has a
1
1 Mr. Seward to Mr. Stuart, 3rd October, 1862.
2 From July 1862 to July 1863.
THE BRITISH GOVERNMENT REMONSTRATES.
303
right to protect itself within its own territory by refusing Chap. XII.
clearances to vessels laden with contraband of war or
other specified articles, as well as to vessels which are
believed to be bound to the ports of an enemy; and that,
so long as such precautions are adopted equally and
indifferently in all cases without reference to the nation-
ality or origin of particular vessels or goods, they do not
afford any just ground of complaint. But the refusal of
clearances to vessels laden with ordinary merchandize
could not be justified on the mere assumption or surmise
that there was danger of the goods coming into the
possession of the insurgents, unless indeed there were
reasonable ground for alleging and believing that some
Confederate port was the true destination of the vessels
or of their cargoes. Earl Russell pointed out that under
a pretext so vague and indefinite the most arbitrary
restrictions might be imposed on British trade :-
“With reference to the measures that appear to have been taken
by the United States' Government as to the trade with the Bahama
Islands, Her Majesty's Government consider that a distinction ought
to be made between shipments of coal and other articles ancipitis usus,
the export of which may have been prohibited as contraband by
general orders of the United States' Government to any places within
geographical limits, and shipments to the Bahamas or any other part
of the British dominions, of provisions and other articles of innocent
use not prohibited or made contraband by any such general order.
The prohibition of the former class of shipments is public and general,
and it falls equally upon the shipping and commerce of all nations, and
may be justified on the ground of the exigencies of a belligerent.
“But Her Majesty's Government cannot so regard the interference
of the New York Custom-house with the ordinary exports to the
Bahamas of dry goods, plain and printed cotton fabrics, &c., shoes,
medical drugs, flour, and provisions. Trade between the United
States and the Bahamas is regulated by the Treaty of 1815 between
the United States and Great Britain, the stipulations of that Treaty
having being extended to the Bahamas in 1830 by the mutual acts of
both Governments. By the Proclamation of President Jackson,
as
1 The Articles in the Treaty bearing on the question are
follows:
“ Article I. There shall be between the territories of the United
304
RESTRAINTS ON NASSAU TRADE,
Chap. XII. dated the 5th of October, 1830, pursuant to the Act of Congi
the 29th of May, 1830, it was expressly declared to be lawful for
British vessels from the Bahamas to import into the United States,
and to export therefrom, any articles which might be imported or
exported in vessels of the United States. This engagement is still
in force, and any prohibition of or interference with exports of
ordinary commodities, not contraband of war, from New York to the
Bahamas in British vessels is plainly inconsistent with that engage-
ment.
"Her Majesty's Government cannot, therefore, in the absence of
any evidence that the articles in question were destined for the
80-styled Confederate States, pass unnoticed the general restriction
which has been imposed on their export from New York to the
Bahamas, and I have accordingly to instruct you to address a repre-
sentation on the subject to Mr. Seward.” ]
States of America and all the territories of His Britannic Majesty in
Europe a reciprocal liberty of commerce. The inhabitants of the two
countries respectively shall have liberty freely and securely to come
with their ships and cargoes to all such places, ports, and rivers in the
territories aforesaid to which other foreigners are permitted to come,
to enter into the same, and to remain and reside in any parts of the
said territories respectively; also to hire and occupy houses and
warehouses for the purposes of their commerce, and, generally, the
merchants and traders of each nation respectively shall enjoy the most
complete protection and security for their commerce, but subject always
to the laws and statutes of the two countries respectively.
“ Article II. No higher or other duty shall be imposed on the
importation into the United States of any articles the growth, produce,
or manufacture of His Britannic Majesty's territories in Europe, and
no higher or other duties shall be imposed on the importation into the
territories of His Britannic Majesty in Europe of any articles the
growth, produce, or manufacture of the United States, than are or
shall be payable on the like articles being the growth, produce, or
manufacture of any other foreign country; nor shall any higher or
other duties or charges be imposed in either of the two countries on
the exportation of any articles to the United States or to His Britannic
Majesty's territories in Europe respectively than such as are payable
on the exportation of the like articles to any foreign country; nor shall
any prohibition be imposed on the exportation or importation of any
articles the growth, produce, or manufacture of the United States
or of His Britannic Majesty's territories in Europe, to or from the
said territories of His Britannic Majesty in Europe or to or from
the said United States, which shall not equally extend to all other
nations."
1 Earl Russell to Mr. Stuart, 18th July, 1862.
AMERICAN REJOINDER. .
305
“Great Britain has declared her neutrality in the contest now Chap. XII.
raging between the United States' Government and the so-styled
Confederate States. She is consequently entitled to the rights of
neutrals, and to insist that her commerce shall not be interrupted,
except upon the principles which ordinarily apply to neutrals. These
principles authorize nothing more than the maintenance of a strict and
actual blockade of the enemy's ports by such force as shall at the least
make it evidently dangerous to attempt to enter them. But the fact
of a neutral ship having succeeded in evading a blockade affords no
ground for international complaint, nor is it an offence which can be
punished upon any subsequent seizure of the ship after she shall have
successfully run the blockade. Her Majesty's Government consider
that it would be introducing a novel and a dangerous principle in the
law of nations, if belligerents, instead of maintaining an effectual
blockade, were to be allowed, upon mere suspicion or belief, well or
ill-founded, that certain merchandize could ultimately find its way
into the enemy's country, to cut off all or any commerce between their
commercial allies and themselves. This would be to substitute for the
effectual blockade recognized by the law of nations a comparatively
cheap and easy method of interrupting the trade of neatrals. But
when this illegal substitute for such a blockade is applied to a
particular nation on account of the geographical position of its
territories or for other reasons, while the same ports of the belligerents
are open for like exports by other nations, the case assumes a still
graver complexion.”l
On the part of the United States it was insisted in
reply that neither the Act of Congress nor the instruc-
tions of the Treasury Department were liable to the
objections urged against them. . “ They do not ex-
pressly, or by any implication, discriminate against
Great Britain, her colonies or dependencies, and in
favour of any other nation, or even of the United
States. They do not discriminate between British ports,
British merchants, British vessels, or British merchan-
dize, and the ports, merchandize, and vessels of the
United States, or those of any other nation.” There
had been no prohibition of any article the growth,
produce, or manufacture of the United States, or of
Her Britannic Majesty's territories in Europe, within
the meaning of the second Article of the Treaty :-
1 Draft Note to be addressed to Mr. Seward, September, 1862.
X
306
OBSERVATIONS.
Chap. XII.
“The object of the Statute is to authorize the Collector to refuse
permits for merchandize which may be designed to supply insurgents
in arms, or of which there may be a danger that they will fall into the
hands of the insurgents. The existence of design, in the first of these
cases, and the existence of imminent danger, in the other, are facts
which must frequently, if not always, be determined by an examination
of circumstances. That examination and determination must be made
by some agent of the Government, and it seems to the Undersigned
that there is no more vagueness in the language by which the power
to make them is conferred upon the Collector of Customs than there is
in the language of a Statute which directs a Magistrate to arrest
offenders, or prevent apprehended crimes, when he is convinced on
satisfactory grounds that crimes have been perpetrated or proposed.
For the exercise of the proper caution and justice in the case, the
subordinate officer is responsible to the Government, and the Govern-
ment itself is responsible to all parties concerned.”
The American Government was willing, however, in
order to remove all possible grounds for misconstruction,
to rescind the instructions which prohibited the exporta-
tion of coal to places within certain geographical limits,
and would instruct its Collectors that, in performing
their duties, they should be governed by the spirit as
well as the letter of the Statute and the instructions
under which they acted, so as to make no injurious
or invidious discrimination to the prejudice of Great
Britain.1
The remonstrances of the British Government, there-
fore, remained practically without effect.
The proceedings of the United States in this case
amounted very nearly to a prohibition of trade between
the Northern ports and the Bahamas, The Act and
Instructions were in terms general, but were in practice
applied to commerce with a particular British depen-
dency, and imposed on that commerce, at the arbitrary
discretion of a Collector of Customs, conditions with
which shippers could not possibly comply. They were,
therefore, very well calculated to distress and incom-
mode the colony and persons trading with the colony.
1 Mr. Seward to Mr. Stuart, 3rd October, 1862 ; to Lord Lyons,
9th January, 1863.
QUESTIONS OF PRIZE LAW.
307
But they did not violate any rule of International Law; Chap. XIT.
nor could they, in my judgment, be properly and justly
denounced as an infraction of the Treaty of 1815. A
neutral port in the neighbourhood of one which a
belligerent is actively blockading is ascertained to be
carrying on a busy trade with the blockaded port, to
afford a shelter and rendezvous for the ships employed
in that trade, and a depot for their cargoes. Is the
belligerent bound to permit goods to be despatched
from his own ports, under his own eyes, to swell the
stores of that depot ? Is he bound to abstain from
enforcing in his own ports regulations by which this
may be checked and thwarted? And is he disabled
from making such regulations by the circumstance that,
under a general clause in a Treaty of Commerce, there is
to be reciprocal freedom of trade between the people of the
neutral country and his own, subject to the laws of the
two countries ? This would not, I think, be a reasonable
construction of the Treaty.
Other questions arose of more general importance,
though they led to little or no controversy between the
two Governments, being such as could be disposed of in
Courts of Prize. It is the Law of Nations, as under-
stood in England—though Continental jurists question
the doctrine, and it has sometimes been attacked in
America—that a ship bound for a blockaded port with
intent to run the blockade may be captured at any point
of her journey. The offence is complete as soon as the
voyage is begun. The risk increases, therefore, with the
distance to be traversed from the port of shipment to
that of discharge. Hence the value to the blockade-
runner of a neutral port near to his final destination.
Nassau is twenty days, or a little less, from London, and
three from Charleston. If cargoes could travel with
perfect safety as far as Nassau or Havana, the markets
of Europe would be practically transported across the
Atlantic, and brought as near to the Southern coast as
x 2
308
QUESTIONS OF PRIZE LAW.
Chap. XII. Nassau or Havana. These ports being neutral, ships
and cargoes really destined to them were in fact pro-
tected, just as they would have been had the voyage
been between Liverpool and London or Havre. But
what if the ship, though nominally bound to Nassau,
were really intended to go to Charleston, touching
perhaps at the intermediate neutral port ? What again
if Charleston were the true destination of the cargo,
though Nassau might be the true destination of the
ship? How ought the ulterior destination, if proved, to
affect ship and cargo : and what is enough to constitute,
and what evidence is sufficient to prove, such an ulterior
destination ?
The American Courts dealt with these questions, and
such as these, as rigorously as Lord Stowell could have
done. Indeed, they went further than Lord Stowell.
They enforced in all its strictness the rule that the act
of sailing from a neutral for a blockaded port with
intent to enter and with knowledge of the blockade,
subjects both ship and cargo to condemnation. If the
master's orders were to call at a neutral port on his way
and ascertain whether the blockade was still in force,
and in that case to proceed no further, and if these
orders were bona fide, it was admitted that the liability
would not be incurred. But if the real intention of the
owner, or his agent having control over the ship, were
that she should run the blockade provided the adventure
were not found to be too hazardous, she might then be
captured, and could not be screened from condemnation
by the possibility that information might have met her
at the neutral port which would have led to the aban-
donment of the design.
Again, as to the destination of the goods. “Neutrals,"
said Chief Justice Chase, “in their own country may
sell to belligerents whatever belligerents choose to buy.
1 The Circassian, Wallace's R. (Supreme Court), ü, 135. The
Admiral, Wallace, iii, 603.
QUESTIONS OF PRIZE LAW.
309
The principal exceptions to this rule are that neutrals Chap. XII.
must not sell to one belligerent what they refuse to sell
to the other; and must not furnish soldiers or sailors to
either, nor prepare, nor suffer to be prepared, armed
ships or military or naval expeditions against either.
So, too, neutrals may convey in neutral ships from one
neutral port to another any goods, whether contraband
or not, if intended for actual delivery at the port of
destination, and to become part of the common stock of
the country or of the port
< British merchants as
neutrals had during the war a perfect right to trade,
even in military stores, between their own ports, and to
sell at one of them goods of all sorts even to an enemy
of the United States with knowledge of his intent to
employ them in rebel war against the American Govern-
ment, provided only the trade were a real trade, in the
course of which goods conveyed from one port to another
became incorporated into the mass of goods for sale in
the port of destination, and provided sale means sale
to either belligerent without partiality to either,"> But
when there is an intention, formed either at the time of
the shipment or afterwards, to send the goods forward to
a port known to be blockaded, there is substantially, as
to the goods, one continuous voyage, which cannot be
broken by any transaction at the intermediate port, by
their being unladed, transhipped, transferred from hand
to hand, or even sold, unless it be a bona fide sale in the
market. They are liable to capture and condemnation,
therefore, on the outward voyage to the neutral port.
So also is the ship, unless there be reason to conclude
that her owners “ were ignorant of the ulterior destina-
tion of the cargo, and did not hire their ship with a view
to it. But if the ulterior destination is the known
inducement to the partial voyage, and the ship is
engaged in the latter with a view to the former, then
whatever liability may attach to the final voyage must
attach to the earlier, undertaken with the same cargo
.
310
DOCTRINE OF CONTINUOUS VOYAGES. .
Chap. XII. and in continuity of conveyance.”
“ The ships are
planks of the same bridge, all of the same kind, and
all necessary to the convenient passage of persons and
property from one end to the other." Could a vessel, it
was asked, be permitted to proceed almost to the mouth
of Charleston harbour and there discharge her lading
into a regular blockade-runner ? Ought it to make any
difference if the transhipment was effected alongside of
the quay at Nassau—or if the goods were merely landed
from one ship to be put on board another—-or if the
transaction was further disguised by a fictitious sale ?1
These decisions extend, and extend for the first time,
to breaches of blockade and to conveyance of articles
contraband of war, the doctrine (as it is called) of “con-
tinuous voyages.
Lord Stowell, who was the inventor
2
1 The Bermuda, Wallace's R., iii, 514. The Stephen Hart, ibid.,
559. The Springbok, Wallace, v, 1. In the case of the Springbok,
the ship herself was restored, there being no sufficient proof that
the alleged destination of the cargo to a blockaded port was
known to her owners. But costs and damages were refused to the
owners, on the plea that the master had signed bills of lading which
did not completely disclose the contents of all the packages on board,
and that he had stated on his examination that he did not know on
what pretence the ship was captured,—which the Court thought a
"misrepresentation."
2 The (American) case of the Commercen (Wheaton's R., i, 382)
was cited in argument as a precedent for this extension. But The
Commercen-a case of not unquestioned authority--can hardly be said
to go that length. The ground of the decision is thus stated in the
judgment of Mr. Justice Story:-
“The property nominally belongs to individuals, and is freighted
apparently on private account, but in reality for public use and under
a public contract, implied from the very permission of exportation.
Whatever might be the right of the Swedish sovereign acting
under his own authority, we are of opinion that, if a Swedish vessel
be engaged in the actual service of Great Britain, or in carrying stores
for the exclusive use of the British armies, she must, to all intents and
purposes, be deemed a British transport.”
In this view the destination of the vessel became immaterial, and
the ground of condemnation was not the conveyance of contraband,
but a constructive incorporation into the enemy's marine.
DOCTRINE OF CONTINUOUS VOYAGES.
311
of this doctrine, and from whose judgments most of the Chap. XII.
language in which it is clothed has been borrowed, applied
it to cases of a different class, in which an underhand
trade was attempted to be carried on by subjects of a
belligerent with the enemy. Before this war it had
been commonly assumed that if a neutral port were the
bona fide destination of the ship and the end of her
outward voyage, both ship and goods were safe, and a
Prize Court would not inquire what was the destination
of the cargo. The law of blockade and contraband has,
therefore, if these decisions are adopted as precedents,
been made more rigorous to the neutral. If England
or France should hereafter be at war with Mexico, a
vessel bound from New York to Mobile or Galveston
might be carried into an English or French port on the
ground that she had on board muskets or saddles, coats
or boots, destined for the Mexican army, and she would
be at the mercy of any inferences which an English or
French Prize Court might draw from the form of her
papers or the character of her cargo. And not only was
the rule severe, but it was applied with severity. The
evidence of an ulterior destination was in some cases
slight. That the ship was to go to the neutral port
“ for orders," or that goods were shipped deliverable to
order or assigns," seems to have been regarded as
sufficient, if the goods themselves were suitable for the
Southern market and the owner or shipper was known
to have been previously concerned in running the
blockade. But there is nothing either irregular or
unusual in giving this form to the hills of lading, where
goods are consigned to an agent for sale: it is consistent,
no doubt, with the hypothesis that they are to be sent
on, but it is equally consistent with the other hypothesis
that they are to be sold if a purchaser can be found. It
is probable that during the late war very few cargoes
were really intended to be disposed of at Nassau; and that
injustice would rarely be done by acting on the assump-
312
SEVERITY OF PRIZE JURISDICTION.
1
Chap. XII. tion that the business of Southern traders or agents
residing there was not so much to make purchases on
the spot as to forward the transmission of goods from
Europe. Yet we cannot fail to see that, if the fact of
an ulterior destination is to be considered as established
by evidence so slender as we find in some of these cases,
neutral traders and carriers may have to encounter
serious risks and hardships.
7
The case of the neutral trader is indeed frequently a
hard one. Belligerent cruisers have a direct interest in
making as many prizes as possible ; belligerent Govern-
ments are indirectly interested in the success which
stimulates and rewards the activity of their cruisers;
and the only appeal against a wrongful capture lies to a
Court of the captor's country, sitting in that country, and
exercising a jurisdiction delegated by the Sovereign of it.
Although, however, the jurisdiction of the Prize tribunal
is conferred by the Sovereign, the acceptance of it as
conclusive between belligerent and neutral reposes on
the common usage and general consent of nations. Such
a tribunal is bound, therefore, to exercise the highest
impartiality, and ought not to be dissuaded from dis-
charging this duty by any fear of discouraging the zeal
of the cruiser. To keep a firm check on his cupidity,
by the power with which the Court is entrusted of
awarding costs and expenses against him, is indeed a
part of its duty. This is a reason why the jurisdiction
in Prize cases should be exercised by judges of the
highest class, and of secure position. It is but seldom,
I fear, that a neutral improperly captured obtains any
adequate compensation for the loss which has been
1 It may be further observed that every extension of the belligerent's
power to capture on the high seas has a tendency to diminish, more or
less, the necessity of keeping an adequate force at the place or places
blockaded, and thus to open the door to paper blockades. It has
sometimes been suggested as an objection to the British and American
doctrine, which recognizes this power in the belligerent, that it has
such a tendency.
THE MATAMOROS TRADE.
313
unjustly inflicted on him; and it must, I think, be Chap. XII.
owned that, whilst the rules which have been gradually
worked out by the Prize Courts of Great Britain and
America are not on the whole inequitable, the applica-
tion of these rules has sometimes been unduly severe.
The excuse for this severity lies in the extreme facility
with which the rules themselves may be evaded. The
jurisdiction of Prize Courts is an incessant struggle with
artifices and contrivances which are traditional, and
resorted to in all maritime wars, and which are as easy
to practise as they are difficult to unmask-artifices and
contrivances by which neutral trade is as constantly
struggling to escape the heavy pressure of war and elude
its restraints.
As the Federal navy grew in strength—and it grew
with prodigious rapidity-as point after point on the
Southern seaboard was seized by Federal expeditions,
and occupied by Federal troops, the blockade of those
ports which remained in the hands of the Confederates
became more efficient and severe. The trade partly
migrated from Nassau and Charleston to Bermuda and
Wilmington; but it became in time a losing game to
the blockade-runner, and profitable chiefly to the Federal
officers who were employed in intercepting him. In
other words, the blockade became thoroughly effective
when it was confined within a moderate compass and
worked by an adequate force.
Texas alone, of all the Confederate States, had an
open and unguarded frontier. The Rio Grande, which
separates it from Mexico, is broad at the mouth, but so
shallow as to be inaccessible for vessels drawing more
than seven feet of water. Forty miles up the stream, on
the Mexican bank, is Matamoros, and over against it the
Texan town of Brownsville. Although a vast tract,
untraversed by railroads, lay between the Texan frontier
and the more populous States of the Confederacy, whilst
every cargo sent up the Rio Grande had to be unladed
314
THE MATAMOROS TRADE.
1
Chap. XII. at sea and to ascend the river in lighters, Matamoros
sprang into importance during the year 1862, and
became the seat of a flourishing trade. Valuable
cargoes were dispatched thither, and importing houses
established on the spot in connection with mercantile
firms in Europe. This traffic, like that of the Bahamas,
was jealously regarded by the Government at Washing-
ton. Bonds were exacted on clearances for Matamoros
as in the case of vessels clearing for Nassau ; yet the
Northern ports appear to have shared largely in the
trade, since it is stated 1 that between November 1862
and February 1863 no less than fifty-nine vessels with
cargoes cleared for this destination from New York alone.
Several neutral vessels engaged in it were captured, on
the plea that a circuitous traffic with Texas through
Mexico was an evasion of the blockade of the Texan
coast. It was further alleged for the captors that the
whole of the Rio Grande, though half of it belonged to
Mexico, was intended to be included in the blockade.
The British Government remonstrated against these
proceedings. “The trade to Matamoros," wrote Lord
Russell, “ is a perfectly legitimate trade. It is carried
on from New York as it is from London and Liverpool.
To pretend that some goods carried to Matamoros may
be afterwards transported across the frontier to Texas,
does not vitiate the legitimate character of that trade.
Nor is it possible to say beforehand that certain goods
will be consumed in Mexico, and certain other goods will
be carried into the so-called Confederate States. It
might so happen that all the goods carried from London
might be used in Mexico, and all the goods sent from
New York might be transported by land to Texas. This
is a matter beyond the scope and destination of the sea
voyage.” The American Secretary of State did not
directly dispute these positions, but he expatiated on the
992
1 Arguendo, in the case of the Peterhoff.
2 Earl Russell to Lord Lyons, 24th April, 1863.
CASE OF THE PETERHOFF.
315
sudden growth of the commerce of Matamoros, and on Chap. XII.
the notorious fact that merchandize was transported
across the Rio Grande into and out of Texas.
66 As it
cannot be assumed by the United States, nor conceded
by Great Britain, that all the vessels ostensibly trading
between a British port and Matamoros are unlawfully
engaged, so it cannot be claimed by Great Britain nor
conceded by us, that some British vessels may not be
fraudulently engaged in that ostensible trade in con-
veying supplies to the insurgents of the United States."
It was further alleged that the vessels captured were
not really destined to Matamoros at all, but were
intended to discharge their freights into lighters to be
conveyed at once to the insurgents on American, not
Mexican, soil; and that this was a question which could
only be determined on evidence, and should be left to the
judgment of a Prize Court.
The whole question ultimately came before the
Supreme Court in the case of the Peterhoff, a vessel
which had been captured at sea on her voyage to Mata-
moros with an assorted cargo, computed to be worth
130,0001.2 The Court decided that the United States
had not attempted to blockade the Mexican half of the
Rio Grande, and could not lawfully have done so. As
to the allegation of a circuitous traffic with the Confede-
rate States through Mexico, “ trade,” they said, “with a
neutral port in immediate proximity to the territory of
one belligerent is certainly very inconvenient to the
other.” Such a trade, with unrestricted inland commerce
between the port and the enemy's territory, impairs,
undoubtedly, and may very seriously impair, a blockade.3
1 Mr. Seward to Lord Lyons, 12th May, 1863.
2 Wallace's R., V, 28.
3 During the blockade of the Russian ports on the Baltic in the
war of 1854, the export and import trade of Russia was carried on
through Prussia. The tallow exported from Prussia to this country in
one year is said to have amounted to 1,500,0001, in value, whilst in the
previous year it had been less than 2,0001.
!
316
· CASE OF THE PETERHOFF.
Chap. XII. Yet it is not the less lawful on that account. Neutral
traffic to or from a blockaded country by inland naviga-
tion or transportation is not prohibited ; and trade from
London to Matamoros, even with intent to supply from
Matamoros goods to Texas, violated no blockade, and
could not be declared unlawful. But articles contraband
of war, on their voyage to a neutral port with a probable
ulterior destination to the enemy, were held liable to
condemnation, although the presumed transportation
from the neutral port to the enemy was to be effected,
and could only be effected, by overland conveyance across
neutral territory. “It is true that even these goods, if
really intended for sale in the market of Matamoros,
would be free from liability, for contraband may be
transported by neutrals to a neutral port if intended to
make part of its general stock in trade. But there is
nothing in the case which tends to convince us that such
was their real destination, while all the circumstances
indicate that these articles at least were destined for the
use of the real forces then occupying Brownsville and
other places in the vicinity."}
"] 11
1 This decision extended still further the doctrine of "ulterior
destination,” which, in the cases of the Bermuda, the Stephen Hart,
and the Springbok, was applied to goods intended, or supposed to be
intended, to be conveyed all the way by sea. In such a case it is clear
that the goods might be captured in the second stage of their journey,
and the question therefore is, whether they may not as lawfully be
captured in the first stage of it, treating the two stages as together
constituting one continuous voyage? But it is otherwise where the
ulterior transportation is overland: over this the belligerent never could
exercise any control; the condemnation must therefore stand or fall
with the broad proposition that the fate of contraband articles, found at
Sea on board of a neutral vessel, and the liability of the neutral vessel to
the consequences of carrying contraband, depend in all cases on what a
Prize Court may regard as the ultimate destination of the goods, no
matter how that destination is to be reached.
In Hobbs v. Heming. (New Reports, v, 406)—a case which arose
in England out of the capture of the Peterhof —the question was,
whether a plea that certain goods were contraband of war, and were
shipped by the plaintiff for the purpose of being sent to and imported into
1
CASE OF THE PETERHOFF.
317
In connection with the subject of this chapter, I shall Chap. XII.
here insert some extracts from correspondence, which
a port in a State engaged in hostilities against the United States, and were
liable to be seized by the cruisers of the United States as contraband of
war, showed a defence to an action on a policy of assurance. The Court
held that it did not. Chief Justice Erle, in the course of his Judgment,
said : “If the goods were in course of transport from a neutral to a
neutral port, the better opinion (see the authorities collected in
Ortolan's Diplomatie de la Mer, vol. ii, p. 181) seems to be, that war does
not give to a belligerent any right to seize them on account of their
quality. The allegation that the goods were shipped for the purpose
of being sent to an enemy's port is an allegation of a mental process
only; we are not to assume therefore, either that the plaintiff had made
any contract or provided any means for the further transmission of the
goods into the enemy's State, or that the shipment to Matamoros was
an unreal pretence. If the goods were in course of transmission, not
to Matamoros but to an enemy's port, the voyage would not be covered
by the policy. Here the allegation does not deny the destination to the
neutral port to which the insurance relates, but introduces a purpose
existing in the mind of the assured, after the termination of the voyage
insured, for the ulterior disposition of the cargo and ship. It is con-
sistent with that purpose, as here alleged, that the plaintiff made the
consignment for mercantile profit, as the end to be attained by him,
in other words, that he knew of an effective demand for warlike stores at
Matamoros, and was induced to send a supply by the expectation of high
prices, and that he expected that the purchase would probably be made
on behalf of the Confederate States, and in that sense had the purpose
that the goods should pass into those States. In this sense, price was
the ultimate object which he purposed to attain, and Federal and Con-
federate were alike indifferent as means, provided he attained that end;
and in a neutral territory he might lawfully sell to either.'
The Court added : “If goods fit for immediate use in war, and
therefore of the quality denoted by the term contraband of war, are
passing between neutrals, it seems that they are not liable to seizure
by a belligerent. The right of capture, according to Sir W. Scott's
opinion, expressed in the case of the Imina (Rob. iii, 167), attaches
only where they are passing on the high seas to an enemy's port:
they must be taken in delicto, in the actual prosecution of a voyage
to an enemy's port. The liability therefore of these goods to lawful
seizure, although their quality was such as might make them contra-
band of war, depended on their destination, and they were not liable
unless it distinctly appeared that the voyage was to an enemy's port."
The decision in Hobbs v. Heming does not directly conflict with the
decision in The Peterhoff, the question determined in the latter case
not having been directly raised in the former. But the opinion of the
318
PRIZES RESTORED.
Chap. XII. require no explanation. The representations made by
the British Government appear to have been reasonable,
Court of Common Pleas does not appear to have been in accordance
with that of the Supreme Court of the United States.
In the case of the Will o' the Wisp, a British schooner captured
on the Texan side of the Rio Grande, while discharging her cargo
(part of which consisted of percussion caps and powder) into lighters
for Matamoros, the powder and percussion caps having been purchased
for the Mexican Government, and a Custom-house permit issued for
them, the vessel and cargo were released by the Prize Court of the
United States at Key West,“ inasmuch as in a trade carried on by
neutral nations or ports there can be no such thing as contraband of
war, but the trade of neutrals between themselves is unaffected by the
war, nor does the United States assume to intercept or interfere with
the trade of Mexico or of any of her ports with neutrals.” Judge
Marvin, however, refused to give the owners their costs and expenses
as against the captors, on the ground that a supposed concealment had
been practised by packing the powder and caps in casks and kegs
marked “codfish,” though they had been duly entered in the manifest;
and the endeavours of the British Government to obtain compensation
were ineffectual.—Parliamentary Papers, North America, No. 12, 1863.
11
In the cases of the Dashing Wave, Volant, Science, and Teresita
(Wallace's R., v, 170, 178, 179, 180), all captured at the mouth of the
Rio Grande and north of the line dividing Mexican from Texan waters,
restitution was decreed by the Supreine Court; but the Court laid
down the following rule :-
“We think it was the plain duty of a neutral claiming to be engaged
in trade with Matamoros, under circumstances which warranted close
observation by the blockading squadron, to keep his vessel, while
discharging or receiving cargo, so clearly on the neutral side of the
boundary line as to repel, so far as position could repel, all imputation
of intent to break the blockade. He had no right to take voluntarily
a position in the immediate presence of the blockading fleet, from
which merchandize might be so easily introduced into the blockaded
region.”
In pursuance of this rule costs and expenses were refused when the
vessels had voluntarily anchored north of the line, but were granted in
the case of the Teresita, which appeared to have drifted across it under
stress of weather.
Part of the cargoes of the Science and Volant consisted of bales of
cloth such as was used for Confederate uniforms, but there was no
evidence “showing destination to enemy territory or immediate enemy
use."
The Labuan, also captured at the mouth of the Rio Grande, but
south of the line, with a cargo of cotton, and under circumstances that
VESSELS CARRYING MAILS.
319
and to have been readily and fairly met on the part of Chap. XII.
the United States.
Mr. Seward to Mr. Welles.
Sir,
Department of State, Washington, August 8, 1862.
“Mr. Stuart, the Chargé d'Affaires of Great Britain, has submitted
to me, informally, papers touching the recent capture of the Adela
by the United States' steamer Quaker City, which he has received
from Vice-Admiral Milne, with papers from Captain Hewett, Com-
mander of Her Majesty's steam-ship Rinaldo, on the station adjoining
our coast, which among other things represent :-
In these papers it is stated that the Quaker City fell in with the
Adela near the British Island of Abaco, and within two-and-a-half
miles of the coast, and without showing any colours chased and fired
at the Adela several times.
“It is farther stated that she was seized before the result of any
actual search could have proved that contraband of war was on board,
which seizure was thus made without previous search, upon the ground
that the real destination of the Adela was some Southern (blockaded
American) port, and not her pretended one, Nassau.
“ Commander Hewett farther states that he understood the flag-
officer to say that he has orders to seize any British vessels whose
names were given to them in orders from the Government, and that
being bound from one British port to another would not prevent the
afforded no excuse for a seizure, was released by decree of a District
Admiralty Court.
The Magicienne, captured on the outward voyage to Matamoros,
and brought into Key West, was restored, and damages paid to the
owners under the authority of an Act of Congress. Bills for a like
purpose were introduced into the Senate, on the recommendation of the
Government and of the Committee on Foreign Affairs, in reference to
the cases of the Labuan, the Volant, and the Science; but they appear
to have encountered some opposition, and no legislative provision has
yet been made for the payment of these claims. In the cases of the
Volant and Science no expenses had been awarded, but the ships and
cargoes
had been sold under order of the Court, and the proceeds were
lost, partly by the failure of a bank in which they were deposited, and
partly by the defalcation of an officer of the Court.
The Sir William Peel, captured on the Mexican side, was restored,
but without costs, there being circumstances of suspicion, and some
conflict of evidence. But the Court held that, in the absence of any
claim on the part of the neutral (Mexican) Government, the fact that
the vessel was captured in neutral (Mexican) waters constituted in
itself no ground for restitution.---Wallace's R. V, 517.
320
AMERICAN INSTRUCTIONS.
។
to
Chap. XII. United States' officers from carrying out these orders; and farther,
that such were the definite orders that they were, whenever and wherever
met with, to seize British steamers or vessels of which official information
had been sent them.
'It is farther reported in these same papers, that the Adela was
bound at that time from one British port to another, and was carrying
a British mail from Her Britannic Majesty's Postmasters at Liverpool
and Bermuda, addressed to Her Britannic Majesty's Postmaster at
Nassau, one of which bags contained despatches from the British
Admiral to Her Britannic Majesty's ship Greyhound, at Nassau;
and that the flag-officer of the Quaker City claimed that the mail-
bags were liable to be opened, and their contents, including the
Admiral's despatches, would be liable to be read in the Court of
Admiralty.
“It is the duty of the naval officers to be vigilant in searching and
seizing vessels of whatever nation which are carrying contraband of
war to the insurgents of the United States. But it is equally impor-
tant that the provisions of the maritime law in all cases be observed
and respected. Without waiting to inquire into the correctness of the
representations of Admiral Milne thus brought to my notice, and with
a view to prevent collisions between the armed vessels of the United
States and Great Britain, I am directed by the President to ask you
give the following instructions explicitly to the naval officers of the
United States, namely:
“ First. That under no circumstances will they seize any foreign
vessels within the waters of a friendly nation.
Secondly. That in no case are they authorized to chase and fire
at a foreign vessel without showing their colours, and giving her the
customary preliminary notice of a desire to speak and visit her.
Thirdly. That when that visit is made the vessel is not then to
be seized without a search carefully made so far as to render it reason-
able to believe that she is engaged in carrying contraband of war to
the insurgents and to their ports, or otherwise violating the blockade;
and that if it shall appear that she is actually bound and passing from
one friendly or so-called neutral port to another, and not bound or
proceeding to or from a port in the possession of the insurgents, then
she cannot be lawfully seized.
And, finally, that official seals or locks or fastenings of foreign
authorities are in no case, nor on any pretext, to be broken, or parcels
covered by them read by any naval authorities of the United States;
but all bags or other things conveying such parcels and duly sealed or
fastened by foreign authorities will be, in the discretion of the United
States' officer to whom they may come, delivered to the Consul,
Commanding Naval Officer, or Legation of the foreign Government to
be opened, upon the understanding that whatever is contraband or
important as evidence concerning the character of a captured vessel
will be remitted to the Prize Court or to the Secretary of State at
VESSELS CARRYING MAILS
321
Chap. XII.
Washington; or such sealed bags or parcels may be at once forwarded
to this Department, to the end that the proper authorities of the foreign
Government may receive the same without delay.
“ The President desires especially that naval officers may be
informed that the fact that a suspected vessel has been indicated to
them as cruising in any limit which has been prescribed to them by
the Navy Department, does not in any way authorize them to depart
from the practice of the rules of visitation, search, and capture pre-
scribed by the law of nations.
“Instructions similar to these will be given to the District
Attorneys of the United States.
“While preparing the above, your letter of the 5th instant, with
the accompanying Report of Commander James Madison Frailey, has
been brought to my attention. This Report does not seem to obviate
the necessity of a fuller one from that officer on the points raised by
Admiral Milne. I will consequently thank you to reqnire a supplemen-
tary Report of that character.
“I am, &c.
(Signed) " WILLIAM H. SEWARD.'
Earl Russell to Mr. Stuart.
If
(Extract.)
" Foreign Office, October 10, 1862.
“Her Majesty's Government are glad to find from your despatch
of August 12th that the orders originally given to American cruisers, in
regard to interference with neutral vessels, have been rescinded.
those orders had been sanctioned and continued in force by the Govern-
ment of the United States, they would have called for prompt and firm
remonstrance on the part of Her Majesty's Government; and it will be
proper that you should intimate to Mr. Seward, while expressing the
satisfaction of Her Majesty's Government at their revocation, that Her
Majesty's Government are glad to be thereby spared from the necessity
of stating their decided objections to their tenor. You will
say
that
to order vessels, though apparently and prima facie carrying on a
lawful trade, to be systematically seized on the high seas, without any
preliminary search, or without the discovery, during such search, of any
strong evidence of suspicion against such vessels, would be to subject
the mercantile marine of neutrals to a system of oppression and annoy-
ance which no neutral Government could be expected to toleraet. The
unjust seizure under urgent circumstances of a neutral vessel
may
be
considered as one of the occasional burdens which a state of war may
impose upon a neutral, and it may be partially compensated by the
condemnation of the captor in costs, or in costs and damages; but
the indiscriminate and general seizure of merchant-vessels, without
previous search, converts an occasional exception into an intolerable
rule.
Y
322
CORRESPONDENCE RESPECTING MAILS.
Chap. XII
“The question which has arisen in this case as to the seizure of
Her Majesty's mails on board the Adela, while it forms a new and
very important element in this case, deserving very grave consideration,
raises a point of some delicacy and difficulty. Her Majesty's Govern-
ment cannot doubt that the Government of the United States are
prepared to concede that all mail-bags, clearly certified to be such,
shall be exempt from seizure or visitation, and that some arrangement
shall be made for immediately forwarding such bags to their destination
in the event of the ship which carries them being detained. If this
is done, the necessity for discussing the claim, as a matter of strict
right, that Her Majesty's mails, on board a private vessel, should be
exempted from visitation or detention, might be avoided; and it is
therefore desirable that you should ascertain from Mr. Seward whether
the Government of the United States admits the principle that Her
Majesty's mail-bags shall neither be searched nor detained.”
Mr. Stuart to Earl Russell.
“My Lord,
Washington, November 4, 1862.
“I read the other day to Mr. Seward that portion of your Lordship’s
despatch of the 10th ultimo, which related to the instructions recently
given to the United States' naval officers in regard to the exercise of
their belligerent rights in the search and capture of merchant-vessels,
as well as to the question of the exemption from visitation or deten-
tion of Her Majesty's mails, when any should be found on board such
vessels.
"Mr. Seward showed great readiness to admit the principle for
which Her Majesty's Government would otherwise have been prepared
to contend, with respect to mail-bags clearly certified to be such ; and
in order that there might be no misunderstanding upon the subject, it
was agreed between us that I should make the inquiry in an unofficial
letter to which he would give a satisfactory reply.
“I have the honour to inclose copies of the letters which we have
consequently interchanged, including a copy of a despatch from him to
the Secretary of the Navy, requesting that instructions may be given
to their naval officers not to search or open the public mails of any
friendly or neutral Power found on board captured vessels, but to put
the same, as speedily as may be convenient, on their way to their
designated destinations, merely providing that the instructions should
not be deemed to protect simulated mails verified by forged certificates
or counterfeited seals.
“I have, &c.
(Signed) “W, STUART."
PERSONS CAPTURED IN BLOCKADE RUNNERS.
323
Mr. Seward to Mr. Welles.
Chap. XII.
“Department of State, Washington,
“ Sir,
“ October 31, 1862.
“It is thought expedient that instructions be given to the blockad-
ing and naval officers that, in case of capture of merchant-vessels
suspected or found to be vessels of the insurgents or contraband, the
public mails of any friendly or neutral Power, duly certified and
authenticated as such, shall not be searched or opened, but be put, as
speedily as may be convenient, on their way to their designated desti-
nations. This instruction, however, will not be deemed to protect
simulated mail-bags, verified by forged certificates or counterfeited
seals.
"I have, &c.
(Signed) " WILLIAM H. SEWARD.'
Lord Inyons to Mr. Seward.
“Sir,
" Washington, December 9, 1862 .
“Her Majesty's Government having had under their consideration
the letter to the Secretary of the Navy, dated the 31st October last, of
which
yon were good enough to send a copy to Mr. Stuart on the 3rd
of last month, have seen with great satisfaction that you
have
requested the Secretary of the Navy to issue instructions to the
United States' naval officers not to search or open the public mails of
any neutral or friendly Power, found on board captured vessels, but to
send such mails to their destinations as speedily as may be.?
“I have, &c.
(Signed)
" LYONS.”
The following instructions, issued in the third year
of the war, relate to the treatment of persons taken on
board of ships engaged in blockade-running. In some
I “The captain of a merchant steamer is not privileged from search
by the fact that he has a Government mail on board ; on the contrary,
he is bound by that circumstance to strict performance of neutral
duties and special respect for belligerent rights." (Judgment in The
Peterhoff, cited above.)
Where there is no special privilege, there is no special obligation,
unless it be an obligation which the neutral master owes to his own
Government. Otherwise, the foregoing observation is just. Neutral
vessels carrying mails cannot on that account claim to be exempt from
search, unless by virtue of a special Convention, and the terms of such
a Convention would need to be carefully considered.
Y 2
324
PERSONS CAPTURED IN BLOCKADE-RUNNERS.
1
Chap. XII. cases, which occurred soon after the commencement of
the blockade, British subjects so taken had been detained
as prisoners, and required, as the condition of their
release, to promise in writing that they would not again
embark in a like enterprise, or otherwise interfere
with the suppression of the rebellion. The Federal
Government, on its attention being called to these
irregularities, which were due entirely to the mistaken
zeal of its officers, had directed that they should not be
repeated, and that the seamen should be considered as
absolved from a promise which ought never to have been
exacted from them.
Mr. Welles to Rear-Admiral Farragut.
Sir,
Navy Department, May 9, 1864.
“The following instructions will hereafter be observed with
regard to the disposition of persons found on board vessels seized
for breach of blockade :-
“1. Bonâ fide foreign subjects captured in neutral vessels, whether
passengers, officers, or crew, cannot be treated as prisoners of war,
unless guilty of belligerent acts, but are entitled to immediate release ;
such as are required as witnesses may be detained for that purpose,
and when their testimony is secured they must be unconditionally
released.
“2. Foreign subjects captured in vessels without papers or colours,
or those sailing under the protection and flag of the insurgent Govern-
ment, or employed in the service of that Government, are subject to
treatment as prisoners of war, and, if in the capacity of officers or crew,
are to be detained. If they are passengers only, and have no interest
in the vessel or cargo, and are in no way connected with the insurgent
Government, they may be released.
“3. Citizens of the United States captured in either neutral or rebel
vessels are always to be detained, with the following exceptions :-If
they are passengers only, have no interest in the vessel or cargo, have
not been active in the rebellion, or engaged in supplying the insurgents
with munitions of war, &c., and are loyally disposed, they may be
released on taking the cath of allegiance. The same privilege may be
allowed to any of the crew that are not seafaring men, of like
antecedents, and who are loyally disposed.
“4. Pilots and seafaring men, excepting bond fide foreign subjects,
captured in neutral vessels, are always to be detained. These are the
principal instruments in maintaining the system of violating the
THE EMILY ST. PIERRE.
325
blockade, and it is important to hold them. Persons habitually Chap. XII.
engaged in violating the blockade, although they may not be serving
on board the vessels, are of this class, and are to be likewise detained.
56 5. When there is reason to doubt that those who claim to be
foreign subjects are in reality such, they will be required to state under
oath that they have never been naturalized in this country, have never
exercised the privileges of a citizen thereof, by voting or otherwise, and
have never been in the pay or employment of the insurgent, or so-
called 'Confederate Government;' on their making such statement
they may be released, provided you have not evidence of their having
sworn falsely. The examination in case they are doubtful should be
rigid.
“6. When the neutrality of a vessel is doubtful, or when a vessel
claiming to be neutral is believed to be engaged in transporting sup.
plies and munitions of war for the insurgent Government, foreign sub-
jects captured in such vessels may be detained until the neutrality of
the vessel is satisfactorily established. It is not advisable to detain
such persons under this instruction, unless there is good ground for
doubting the neutrality of the vessel.
“7. Parties who may be detained under the foregoing instructions
are to be sent to a Northern port for safe custody, unless there is a
suitable place for keeping them within the limits of your command,
and the Department furnished with a memorandum in their cases
respectively.
Very respectfully, &c.
(Signed)
66 GIDEON WELLES,
" Secretary of the Navy."
An incident in the history of the blockade, which
gave rise to a brief correspondence between the two
Governments, may fitly close this chapter.
11
The Emily St. Pierre, a British ship, was captured
on the 18th March, 1862 by a steamer detached from
the blockading squadron off Charleston. She was on a
voyage from Calcutta, with orders to make the coast of
South Carolina, and ascertain whether it was still under
blockade. If so, she was to go to .New Brunswick; if
not, she was to enter Charleston harbour. She had no
contraband on board. When
When seized she was on the
high seas, ten or twelve miles from shore, heading
straight for Charleston. Her crew were taken out of
her, except the master, cook, and steward, who were
$
326
THE EMILY ST. PIERRE.
1
Chap. XII. kept on board in order that their evidence might be
forthcoming when she should be brought before a Prize
Court. Two officers, with thirteen men, were put in
charge of her, and ordered to carry her to Philadelphia.
On the way thither, the three prisoners rose against
their captors, disarmed and secured them, regained
possession of the ship, and managed—with the help of
three or four of the prize-crew, who volunteered to lend
a hand rather than remain in confinement, but who
were all landsmen—to carry her into Liverpool, after a
voyage of thirty days, in which they encountered rough
weather and many difficulties and hardships.
On being informed of these facts by the United
States' Consul at Liverpool, Mr. Adams made a demand
on the British Government for the restitution of the
ship. He denounced the rescue as a fraudulent and
an outrageous act, casting a stigma on the good
faith of the British nation; he cited the condemnation
of such a proceeding which was pronounced by Lord
Stowell in the case of the Catherine Elizabeth:1 and
1“ If a neutral master attempts a rescue, he violates a duty which is
imposed upon him by the law of nations, to submit to come in for
inquiry as to the property of the ship or cargo; and if he violates that
obligation by a recurrence to force, the consequence will undoubtedly
reach the property of his owner; and it would, I think, extend also to
the confiscation of the whole cargo entrusted to his care, and thus
fraudulently attempted to be withdrawn from the rights of war.”-
(Rob., v, 232)
The reasons for condemnation were more fully stated by the same
great Judge in The Dispatch (Rob., iii, 278):
Taking it then to be a case of forcible rescue of a neutral ship
from the hands of a lawful cruiser, the law is clear, and the principle
of it is founded on the soundest maxims of justice and humanity. If
neutral crews may be allowed to resort to violence to withdraw them-
selves out of the possession taken by a lawful cruiser, for th purpose
of a legal inquiry, and may (as it has been termed) hustle them out of
the command of the vessel, the whole business of the detention of
neutral ships will become a scene of mutual hostility and contention ;
the crews of neutral ships must be guarded with all the severity and
strictness practised upon actual prisoners of war, for the same measures
CASE OF RESCUE.
327
he insisted that, however it might be regarded by the Chap. XII.
Municipal Law of England, some jurisdiction must exist
competent to redress so manifest a wrong.
On the part of the British Government it was
answered that they had no power to take the vessel out
of the possession of her owners, whose rights had never
been extinguished by the sentence of a Prize Court.
Had the rescue failed, there was no doubt that the
attempt would have rendered her liable to condemna-
tion; but Lord Stowell's judgment "furnished no
authority for contending that the Municipal Law of a
neutral country is under any obligation, or has any
authority, to enforce, or to aid in enforcing, the right
of the belligerent to capture-or, in other words, is
empowered to exercise prize jurisdiction as between
captors and neutrals." “You speak," continued Lord
Russell, “ of the rescue of the Emily St. Pierre as
being a fraud by the law of nations. But, whether the
act of rescue be viewed as one of fraud, or of force, or as
partaking of both characters, the act was done only
against the rights accruing to a belligerent, under the
law of nations relating to war, and in violation of the
law of war, which, whilst it permits the belligerent to
exercise and enforce such rights against neutrals by the
99
of precaution and distrust will become equally necessary; the inter-
course of nations neutral and friendly towards each other will be
embittered by acts of hostility mutually committed by their subjects.
At present, under the understanding of the law which now prevails, it
is the duty of the cruiser to treat the crew of an apparently neutral
ship, which he takes possession of for further inquiry into the real
character of herself and her cargo, with all reasonable indulgence; and
it is the duty of neutrals under that possession to take care that they
do not put themselves in the condition of enemies by resorting to such
conduct as can be justified only by the character of enemies. It is the
law, and not the force of the parties, that must be looked to, as the
redresser of wrongs that may have been done by the one to the other.
I have no hesitation in pronouncing this ship and cargo liable to con-
demnation, on the ground of the parties having declared themselves
enemies by this act of hostile opposition to lawful inquiry.”
328
THE EMILY ST. PIERRE.
Chap. XII. peculiar and exceptional right of capture, at the same
time leaves to the belligerent alone the duty, and
confers upon him the power, of vindicating such rights
and of enforcing such law. The same law not only does
not require, but does not even permit, neutral nations
to carry out belligerent rights. You allude to the
conduct of the United States' Government in the case
of the Trent ; but the flagrant wrong done in that
case was done by a naval officer of the United States;
the prisoners whose release was demanded were in the
direct custody and keeping of the Executive Govern-
ment; and the Government of the United States had
actually the power to deliver them up, and did deliver
them up, to the British Government. But the Emily
St. Pierre is not in the power of the Executive
Government of this country; and the laws of England,
as well as the law of nations, forbid the Executive
Government from taking away that ship from its legal
owners."]
This correspondence came to a somewhat abrupt
conclusion, partly due, as it appears, to a curious dis-
covery made at the American Legation. It was found
that a claim resembling that which the United States
were making against Great Britain had in the year 1800
been made by Great Britain against the United States,
and that it had been refused on the very grounds which,
when urged by Lord Russell, had proved so unsatisfac-
tory to Mr. Adams.?
1 Earl Russell to Mr. Adams, 24th May, 1862; 12th June, 1862.
2 Lord Grenville's Instruction to Mr. Liston, and Mr. Pickering's
reply, are given in Parliamentary Paper, North America, No. 4 (1863),
pp. 138, 139. The answer of the American Secretary of State was as
follows:
“ I have now the honour to state to you that while, by the law of
nations, the right of a belligerent power to capture and detain the
merchant vessels of neutrals, on just suspicion of having on board
enemy's property, or of carrying to such an enemy any of the articles
which are contraband of war, is unquestionable, no precedent is recol-
OBSERVATIONS.
329
There can be no doubt that the American Government Chap. XII.
was right in 1800 and wrong in 1862, and the English
Government wrong in 1800 and right in 1862. The
enforcement of blockades is left, and rightly left, by
the Law of Nations to the belligerent alone. They are
enforced by the exercise of the belligerent right of
capture; and this right is the weapon which Inter-
national Law places in his hands for that express
purpose. Capture is an act of force, which has to be
sustained by force until the property in the vessel has
been changed by a sentence of condemnation. If she
escape meanwhile from the captor's hands, it is not for
the neutral to restore her to him. Resistance or a
rescue is, for the reasons given by Lord Stowell, a dis-
tinct offence, drawing after it a distinct and appropriate
penalty-confiscation. But here again it is for the
belligerent to inflict the penalty, and it is not the
business of the neutral to help him to do this, either
by recovering his prize for him or by treating the act as
a crime.
lected, nor does any reason occur, which should require the neutral to
exert its power in aid of the right of the belligerent nation in such
captures and detentions. It is conceived that, after warning its
citizens or subjects of the legal consequences of carrying enemy's
property or contraband goods, nothing can be demanded of the
sovereign of the neutral nation but to remain passive. If, however, in
the present case, the British captors of the brigantine Experience,
Hewit, master; the ship Lucy, James Conolly, master ; and the
brigantine Fair Columbia, Edward Carey, master, have any right to
the possession of those American vessels or their cargoes, in conse-
quence of their capture and detention, but which you state to have
been rescued by their masters from the captors and carried into ports
of the United States, the question is of a nature cognizable before the
tribunals of justice, which are opened to hear the captors' complaints;
and the proper officer will execute their decrees.
You suggest that
these rescues are an infringement of the law of nations. Permit me to
assure you that any arguments which you shall offer to that point will
receive a just attention.”
5
CHAPTER XIII.
Trade in Munitions of War with North and South.--Anxiety of the
Confederate Government to procure sea-going Ships of War.-
Mission of Bullock and North, and their Operations in England.
Vigilance of the United States' Legation in London and of the
Liverpool Consulate.— Case of the Oreto or Florida.-Case of the
Alabama.- Subsequent Attempts; successful in the cases of the
Georgia and Shenandoah, unsuccessful in others. The Alexandra ;
the Ironclads; the Rappahannock.-Action of the British Government
in each case.—Prosecutions under the Foreign Enlistment Act.
says the
To the workshops of Europe, and especially to its
chief workshop, Great Britain,--both belligerents had
recourse for the supplies of arms and munitions neces-
sary to enable them to place great armies in the field.
“On the commencement of the war,
American Annual Cyclopædia for 1861, “the United
States' Government found itself scantily supplied with
small - arms, the armouries in the Northern States
having been in great part stripped, and the arms
removed to the Southern States. The chief depen-
dence for the supply of muskets was upon the Spring-
field Armoury and that at Harper's Ferry. The
capacity of the few private armouries was only a few
thousand muskets annually; and on the destruction of
the arsenal and armoury at Harper's Ferry on the 19th of
April, 1861, together with 15,000 muskets, to prevent
their falling into the hands of the Confederates, the
resources of the Government were seriously diminished.
It was, no doubt, the want of arms that limited the call
of the President for volunteers, on the 15th of April, to
75,000 men; and until muskets could be imported from
EXPORT OF CONTRABAND.
331
Europe many regiments were detained in their camps in Chap. XIII.
the different States. Orders were sent abroad by the
Governors of States, and many arms were imported at
high prices, although inferior, most of them very much
so, to those of American manufacture.” 1 66 Of the
foreign arms imported, the best," continues the annalist,
“are the Enfield rifles, made at the Government
Armoury at Enfield, England.” Many rifles were also
imported from Prussia. The demands of the war, as
it advanced, were met, in large measure, by the activity
of private manufacturers in the Northern States Aut the
export of arms and military stores from Great Britain
went on freely and without intermission as long as the
contest lasted ; and the supplies thus drawn by the
Federal Government from this country appear to have
considerably exceeded in quantity those obtained by the
South.
There was at first, and probably for a considerable
time, no want of arms in the Confederate States. The
Federal arsenals and magazines in the South had all
fallen into the hands of the State authorities, and had by
them been transferred to the Confederate Government;
and these had a little while before been filled to over-
flowing from the arsenals of the North by Mr. Floyd,
who had not scrupled to use for this purpose the power
entrusted to him as Secretary at War in Mr. Buchanan's
Administration. As the war proceeded, and so long as it
lasted, they obtained what supplies they could from the
European market. But every cargo had to run the
gauntlet of the blockade, except what could be trans-
ported overland from Mexico.' The extent, therefore, to
which exportation was possible must have been limited
in proportion to the effectiveness of the blockade.?
1 American Annual Cyclopaedia for 1861, p. 28.
2 Of the quantities really shipped to either North or South we
have, so far as I am aware, no accurate account. The total value of
arms and munitions of war shipped from this country, during the war
332
MUNITIONS OF WAR.
Chap. XIII.
An export trade, more or less considerable, in arms
and munitions of war was carried on from this country
to both the Northern and the Southern ports. Whether
the goods were purchased in the English market by per-
sons who came over for the purpose, or were shipped to
order, or were consigned for sale in America on account
of the shippers; whether the purchases were effected by
agents. for the two Governments respectively, or by
private speculators; and whether those agents or specu-
lators were American or English, firms trading at
Liverpool or firms trading at New York or Charleston,
I do not know, and it is absolutely immaterial to inquire.
None of these circumstances could affect, to the slightest
degree, the character of the transaction; nor was it the
duty, or within the power, of the neutral Government to
interfere with a sale and purchase conducted in one of
these ways, more than with a sale and purchase effected
in any other of them.
Nor is it material to know how much of the supplies
and in the years which immediately preceded and followed it, to the
United States and to the “ British West India Islands, &c.,' were as
follows:-
Years.
United States.
British West
India Islands, &c.
$
1860 ..
1861
1862
1863
1864
1865
1866
£
45,076
119,555
999,197
425,081
36,802
23,625
82,345
€
6,050
59,110
367,578
200,402
74,983
29,240
4,795
These figures show the demands of the war. The increase in the
West India trade was doubtless due to the activity of the blockade-
runners. Shipments direct to any of the Southern ports would be
included under the heading “ United States,” but these were probably
inconsiderable.
A Customs Return moved for and presented to Parliament in 1864
states the aggregate value of the rifles, muskets, ordnance and ordnance
stores, and percussion caps, shipped under those descriptions to Northern
ports in 1861 at 20,3861., and in 1862 at 550,1361. The shipments to
EXPORTS TO NORTH AND SOUTH.
333
sent to either Northern or Southern ports was conveyed Chap. XIII.
in American bottoms, and how much in English bottoms.
Articles of military use, when transported over sea to the
ports of either belligerent in neutral ships, are during the
transit designated contraband, and may be captured under
the neutral flag, the neutral carrier suffering the loss of his
freight and getting no compensation for the interruption
of his voyage and the breaking up of the cargo. In this
case, both goods and carriage are obtained in the neutral
country; in the other case (where the transportation is
effected by merchantmen belonging to the belligerent),
the neutral supplies the goods, but does not supply the
carriage. This, and this only, is the real difference
between the two classes of transactions considered in
themselves : and International Law, when it “prohibits '
(as the phrase is) the carriage of contraband, declares
in effect that the belligerent importer shall not, by
having the goods conveyed to him under a neutral
Southern ports are valued in the return at 1,8507. in the former year,
and nil in the latter. No distinction is made between Northern and
Southern ports as such ; but the names of the ports are given under
the general title “ America.”
Mr. Davis, in his Message of 12th January, 1863, gave a glowing
account of the resources of the Confederacy :-“Our armies are larger,
better disciplined, and more thoroughly armed and equipped, than at
any period of the war; the energies of a whole nation, devoted to the
single object of success in this war, have accomplished marvels, and
many of those trials have by a beneficent Providence been converted
into blessings.
The injuries resulting from the interruption of
foreign commerce have received compensation by the developments of
our internal resources. Cannon crown our fortresses that were cast
from the proceeds of mines opened and furnaces built during the war.
Our mountain caves yield much of the nitre for the manufacture of
powder, and promise increase of product. From our own foundries and
laboratories, from our own armouries and workshops, we derive in a
great measure the warlike material, the ordnance and ordnance stores,
which are expended so profusely in the numerous and desperate engage-
ments that rapidly succeed each other. Cotton and woollen fabrics,
shoes and harness, waggons and gun-carriages, are produced in daily
increasing quantities by the factories springing into existence."
The need for arms appears to have become urgent at the beginning
of 1865.
334
CONTRABAND TRADE.
Chap. XIII. flag, escape the risk of having them captured at sea ;
and that the neutral who chooses to undertake the
conveyance must hazard all the losses which may
attend on such an adventure. Russia, if she be at war
with France, cannot be prevented from getting guns from
private manufacturers at Berlin across the Prussian
frontier. But if she gets them from England, French
cruisers may seize them anywhere on the high seas,
whether under the Russian or under the English flag :
the English shipowner must run the risk of that: and,
if he be the owner of both ship and goods, he may lose
his ship into the bargain. To the people of the South
it was almost a matter of necessity that the bulk of what
they bought in Europe should be conveyed to them in
neutral vessels, because their own mercantile marine was
insignificant; to the people of the North it was in each
particular transaction a mere question of price and con-
venience, which the exporter decided for himself as he
judged best for his own interest. It is not, however, more
unlawful to convey munitions of war to a belligerent who
has few or no merchant-ships of his own than to a belli-
gerent who has many—to a belligerent who is weak at sea
than to one who is powerful; nor, where a great disparity
of force renders the business of transportation difficult
and precarious on one side, and safe and easy on the other,
is the transaction which is difficult and precarious inore
unlawful than that which is safe and easy. The stronger
belligerent, in spite of all that the neutral trader can do,
has the advantage of his strength, and the weaker suffers
the disadvantage of his inferiority; but neutral Govern-
ments are not called upon to interdict to the weaker that
which they permit to the stronger, and they would cease
to be neutral if they did. The overwhelming maritime
preponderance of the Union enabled it during the late
war to blockade, more or less effectively, all the Southern
coasts; hence, in carrying on this trade with the South,
the “ offence,” as a Prize Court would say, of breaking a
blockade was superadded to that of conveying contra-
REMARKS.
335
band—which means that the neutral trader was doing Chap. XIII.
two things, each of which by itself would have exposed
him to a penalty. But the neutral Government, which
is not bound to prevent blockade-running and the export
of contraband when distinct transactions, is under no
greater obligation to prevent them when combined in
one transaction.
I state these simple propositions as plainly as I can,
because there is reason to think that they were not, and
are not now, clearly apprehended by the Government of
the United States. In the tissue of complaints which
that Government has again and again presented to the
Government of Great Britain, blockade-running and the
export of contraband to the South are large ingredients,
and hold a conspicuous place. That Great Britain did
not put a stop to these enterprises, while permitting the
export of arms to the North, has been reckoned a griev-
ance by the United States, and employed to swell their
list of grievances; and the only known facts alleged in
support of this contention have been the facts that the
Southern States were in rebellion, and the Southern
ports under blockade.
1
1 The latest official statement, I believe, previous to the war, of the
American view and practice in this matter is to be found in President
Pierce's Message of December 1854:-
“ 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 to some of the hazards of war, his acts do not involve any
breach of national neutrality, nor of themselves implicate the Govern-
ment. 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."
336
CONFEDERATE NEED OF SHIPS.
Chap. XIII.
Among the most pressing needs of the Confederates
was that of sea-going ships capable of being used for
war. Such vessels as they possessed were, as we have
seen, for the most part very small. There was probably
not one of these which could have ventured to engage
a Federal cruiser of any class without certain destruction.
In coast warfare they were able to achieve one or two
brilliant though unprofitable successes.
But the con-
struction of a large sea-going steamer seems to have
been beyond their power; their only ships were such as
had fallen into their hands; and they either had not the
materials and machinery for turning out marine steam-
engines, or were unable to use them.
1 “Workshops and foundries were improvised, wherever it was
possible to establish them; but the great difficulty was the want of the
requisite heavy machinery. We had not the means, in the entire
Confederacy, of turning out a complete steam-engine of any size; and
many of our naval disasters are attributable to this deficiency. Well-
constructed steamers, that did credit to the Navy Department and its
agents, were forced to put to sea, and to move about upon our sounds
and harbours, with engines disproportioned to their size, and incapable
of driving them at a speed greater than five miles the hour.
“The casting of cannon, and the manufacture of small arms, were
also undertaken by the Secretary, under the direction of skilful officers,
and prosecuted to considerable efficiency. But it took time to accom-
plish all these things. Before a ship could be constructed, it was
necessary to hunt up the requisite timber, and transport it considerable
distances. Her armour, if she was to be armoured, was to be rolled also
at a distance, and transported over long lines of railroad, piecemeal; her
cordage was to be picked up at one place, and her sails and hammocks
at another. I speak knowingly on this subject, as I had had experience
of many of the difficulties I mention, in fitting out the Sumter in
New Orleans. I was two months in preparing this small ship for sea,
practising, all the while, every possible diligence and contrivance. The
Secretary had other difficulties to contend with. By the time he had
gotten many of his ship-yards well established, and ships well on their
way to completion, the enemy would threaten the locus in quo by land,
and either compel him to attempt to remove everything movable, in
great haste and at great loss, or destroy it, to prevent it from falling
into the hands of the enemy. Many fine ships were, in this way,
burned on the very eve of completion.”- Semmes, My Adventures
Afloat, p. 366.
MISSION OF BULLOCK.
337
Yet the few cruisers which the Confederate Govern- Chap. XIII.
ment were able to send to sea performed with con-
siderable success the service for which they were
designed; and the Southern ports, though ingress and
egress were alike hazardous, were far from being com-
pletely closed. The Sumter, as we have already seen, put .
to sea from the Passes of the Mississippi; the Nashville
issued from Charleston in October 1861, ran into Beau-
fort in February 1862, showing Confederate colours
when within musket-range of the blockading steamer,
and ran out again in March under the fire of the two
which then guarded the channel. The Florida, as we
shall see hereafter, entered and left Mobile in the teeth
of the blockade. Even before the end of 1861, the rate
of insurance on American shipping had risen four or five
per cent., and shippers had begun to resort to the
device, familiar in maritime war, of protecting or at-
tempting to protect their cargoes by certificates of
neutral ownership.
In the winter of 1861-62, two Confederate officers
had been sent by their Government to Europe, with
instructions to procure several steamers, to be purchased
in the market or built to order as circumstances might
determine. They were warned to proceed with caution,
it being probably well known that England had a
neutrality law differing very slightly from that of the
United States. Captain Bullock, the more prominent
of these two agents, a Georgian who had been in the
Federal Navy and afterwards in the steam-packet
service, took up his abode near Liverpool. It need
hardly be said that of him, his associate, or his
instructions, nothing could well have been known to
the British Government.
The Government of the United States possessed in
its Consulates, and especially in the Consulate at Liver-
pool, posts of observation which appear to have been
occupied by zealous and intelligent men. Whatever
Z
338
SAILING OF THE ORETO.
Chap. XIII. occurred in the port of a nature to awake suspicion,
the Consul reported to Mr. Adams; and Mr. Adams,
if he thought it of any consequence, brought it to the
notice of Lord Russell. On the 15th August, 1861,
the Foreign Secretary's attention was thus directed to
a steamer, the Bermuda, alleged to be fitting out for
the Confederate Government at Hartlepool. She proved,
however, on investigation, to be intended only for
blockade-running. On the 18th February, 1862, a like
representation was received respecting another steamer,
the Oreto, at Liverpool, and was referred on the same
day to the Treasury, to be made the subject of inquiry by
the officers of the Board of Customs. They reported that
she was intended for an English mercantile house at
Palermo, and that she was believed by the firm of engi-
neers to whose order she had been built to be destined
for that place; that she was pierced for four guns, but not
fitted for the reception of guns, and that she had nothing
on board but coals and ballast. Orders were given that
she should be vigilantly watched, and that, if any arma-
ment prohibited by the Foreign Enlistment Act should
be discovered, she should be detained. She was registered
on the 3rd March in the name of a merchant then at
Liverpool, a member of the Sicilian firm, and cleared on
the following day for “ Palermo, the Mediterranean, and
Jamaica" in ballast, but did not sail till the 22nd, when
she left the Mersey with a crew of fifty men, and
nothing on board but ordinary ship’s stores. Here,
for the present, she disappears from view, and for three
months nothing more is heard of her. No evidence
(beyond vague hearsay and surmise) respecting the con-
struction, destination, or ownership of the vessel appears
to have been produced to Government or any of its
officers before she sailed.
On the 24th June, 1862, Lord Russell was apprised
by Mr. Adams “ that a new and still more powerful war-
steamer was nearly ready for departure from the port of
+
THE ALABAMA.
339
Liverpool on the same errand” as the Oreto, which he Chap. XIII.
believed to be then not at Palermo but at Nassau, com-
pleting her armament for the purpose of making war
against the United States. 6. This vessel has been built
and launched from the dockyard of persons one of whom
is now sitting as a member of the House of Commons,
and is fitting out for the especial and manifest object of
carrying on hostilities by sea. It is about to be com-
manded by one of the insurgent agents, the same who
sailed in the Oreto. The parties engaged in the enter-
prise are persons well known at Liverpool to be agents
and officers of the insurgents in the United States." i
Mr. Adams sent at the same time, as an inclosure,
the following letter, from which his information had
been derived :
6 Sir,
Mr. Dudley to Mr. Adams.
“ United States' Consulate, Liverpool, June 21, 1862.
The gun-boat now being built by the Messrs. Laird and Co., at
Birkenhead, opposite Liverpool, and which I mentioned to you in a
previous despatch, is intended for the so-called Confederate Government
in the Southern States. The evidence I have is entirely conclusive to
my
mind. I do not think there is the least room for doubt about it.
Beauforth and Caddy, two of the officers from the privateer Sumter,
stated that this vessel was being built for the Confederate States. The
foreman in Messrs. Laird's yard says she is the sister to the gun-boat
Oreto, and has been built for the same parties and for the same
purpose; when pressed for a further explanation, he stated that she
was to be a privateer for the Southern Government in the United
States.' The captain and officers of the steamer Julie Usher now at
Liverpool, and which is loaded to run the blockade, state that this
gun-
boat is for the Confederates, and is to be commanded by Captain Bullock.
“The strictest watch 'is kept over this vessel; no person except
those immediately engaged upon her is admitted in the yard. On the
occasion of the trial trip made last Thursday week no one was admitted
without a pass, and these passes were issued to but few persons, and
those who are known here as active Secessionists engaged in sending
aid and relief to the rebels.
“I understand that her armament is to consist of eleven guns, and
that she is to enter at once, as soon as she leaves this port, upon her
business as a privateer.
1 Mr. Adams to Earl Russell, 23rd June, 1862.
z 2
340
THE ALABAMA.
Chap. XIII.
“The vessel is very nearly completed; she has had her first trial
trip. This trial was successful, and entirely satisfactory to the persons
who are superintending her construction. She will be finished in nine
or ten days. A part of her powder canisters, which are to number
200, and are of a new patent, made of copper with screw tops,
are on board the vessel; the others are to be delivered in a few days.
No pains or expense have been spared in her construction. Her engines
are on the oscillating principle and are 350 horse-power. She measures
1,050 tons burthen, and will draw fourteen feet of water when loaded.
Her screw or fan works in a solid brass frame casting, weighing near
two tons, and is so constructed as to be lifted from the water by steam-
power. The platforms and gun carriages are now being constructed.
“When completed and armed she will be a most formidable and
dangerous craft, and, if not prevented from going to sea, will do much
mischief to our commerce. The persons engaged in her construction
say that no better vessel of her class was ever built.
“I have, &c.
(Signed) “THOMAS H. DUDLEY."
These letters were on the 25th referred to the
Treasury; and on the 1st July the Commissioners of
Customs reported as follows:-
The Commissioners of Customs to the Lords Commissioners of the Treasury.
“ Custom House, July 1, 1862.
“Your Lordships having referred to us the annexed letter from
Mr. Hammond, Under-Secretary of State for Foreign Affairs, trans-
mitting, by desire of Earl Russell, copy of a letter from the United
States' Minister at this Court, calling attention to a steamer reported
to be fitting out at Liverpool as a Southern privateer, and inclosing
copy of a letter from the United States' Consul at that port, reporting
the result of his investigation into the matter, and requesting that
immediate inquiries may be made respecting this vessel, and such steps
taken as may be right and proper;
" We report-
“ That immediately on receipt of your Lordship’s reference we for-
warded the papers to our Collector at Liverpool for his special inquiry
and report, and we learn from his reply that the fitting-out of the
vessel has not escaped the notice of the officers of this revenue, but
that as yet nothing has transpired concerning her which has appeared
to demand a special Report.
“ We are informed that the officers have at all times free access to
the building-yards of the Messrs. Laird at Birkenhead, where the
vessel is lying, and that there has been no attempt on the part of her
builders to disguise, what is most apparent, that she is intended for a
CUSTOMS REPORT.
341
ship-of-war; and one of the Surveyors in the service of this revenue, Chap. XIII.
who had been directed by the Collector personally to inspect the vessel,
has stated that the description of her in the communication of the
United States' Consul is correct, with the exception that her engines
are not constructed on the oscillating principle.
“ Her dimensions are as follows:-Length, 211 feet 6 inches;
breadth, 31 feet 8 inches; depth, 17 feet 8 inches; and her gross
tonnage by the present rule of measurement is 682:31 tons.
“The Surveyor has further stated that she has several powder-
canisters on board, but as yet neither guns nor carriages, and that the
current report in regard to the vessel is that she has been built for a
foreign Government, which is not denied by the Messrs. Laird, with
whom the Surveyor has conferred; but they do not appear disposed to
reply to any questions respecting the destination of the vessel after
she leaves Liverpool, and the officers have no other reliable source of
information on that point. And having referred the matter to our
Solicitor, he has reported his opinion that at present there is not
sufficient ground to warrant the detention of the vessel or any inter-
ference on the part of this Department, in which Report we beg to
express our concurrence.
“And with reference to the statement of the United States' Consul,
that the evidence he has in regard to this vessel being intended for the
so-called Confederate Government in the Southern States is entirely
conclusive to his mind, we would observe that, inasmuch as the officers
of Customs at Liverpool would not be justified in taking any steps
against the vessel unless sufficient evidence to warrant her detention
should be laid before them, the proper course would be for the Consul
to submit such evidence as he possesses to the Collector at that port,
who would thereupon take such measures as the provisions of the
Foreign Enlistment Act would require. Without the production of
full and sufficient evidence to justify their proceedings, the seizing
officers might entail on themselves and on the Government very serious
consequences.
“ We beg to add that the officers at Liverpool will keep a strict
watch on the vessel, and that any further information that may be
obtained concerning her will be forth
with reported.
(Signed) “ Thos. F. FREMANTLE.
“ GRENVILLE C. L. BERKELEY."
A copy of this report was on the 4th July sent by
Lord Russell to Mr. Adams. 66 In accordance there-
with,” wrote Lord Russell, “I would beg leave to suggest
that you should instruct the United States' Consul at
Liverpool to submit to the Collector of Customs at that
port such evidence as he may possess tending to show
1
342
THE ALABAMA.
Chap. XIII. that his suspicions as to the destination of the vessel in
question are well founded.”
Mr. Adams, on the 7th, promised to act on this
suggestion, and on the 10th the Collector received from
Mr. Dudley a letter stating various circumstances, all
leading to the conclusion that the vessel was intended
for war and for the service of the Confederate States.
· His information, however, rested almost entirely on
hearsay statements, alleged to have been made either
by persons whom he did not name, or by others of
whose whereabouts he was ignorant. “The infor-
mation," he added, “on which I have formed an
undoubting conviction that this vessel is being fitted
out for the so-called Confederate Government, and is
intended to cruise against the commerce of the United
States, has come to me from a variety of circumstances,
and I have detailed it to you as far as practicable. I
have given you the names of persons making the state-
ments, but as the information in most cases is given to
me by persons out of friendly feeling to the United
States, and in strict confidence, I cannot state the
names of my informants; but what I have stated is of
such a character that little inquiry will confirm its
truth."
The Collector on the same day acknowledged the
receipt of this letter. "I may observe, however," he
added, “that I am respectfully of opinion the statement
made by you is not such as could be acted upon by the
officers of this revenue, unless legally substantiated by
evidence." On the same day also (the 10th July) he
transmitted it to the Commissioners of Customs, who
consulted their legal adviser, and on the 15th informed
the Collector that there “does not appear to be prima
facie proof sufficient in the statement of the Consul to
justify the seizure of the vessel, and you are to apprise
the Consul accordingly.”
On the 21st July the Consul, accompanied by his
THE ALABAMA.
343
solicitor, applied in person to the Collector, and requested Chap. XIII.
him to seize the vessel, placing in his hands at the same
time six affidavits, one made by the Consul himself, the
five others by five persons who were in attendance. The
Collector, by that night's post, wrote to the Commis.
sioners, forwarding the affidavits, and asking that he might
be instructed by telegraph how to act, “ as the ship appears
to be ready for sea, and may leave any hour she pleases.”
She was now in fact out of her builders' hands, having
been moved on the 12th from their private graving dock
to the Great Float public dock at Birkenhead. Here
she was being coaled and provisioned. She was still
completely unarmed; she had on board no guns or
carriages, nor were her platforms fitted to the deck.?
On the 22nd July the Commissioners wrote to the
Collector :
Sir,
“Having considered your Report of the 21st instant, No. 1200,
stating, with reference to previous correspondence which has taken
place on the subject of a gun-boat which is being fitted out by
Messrs. Laird, of Birkenhead, that the United States' Consul, accóm-
panied by his solicitor, has attended at the Custom-house with certain
witnesses, whose affidavits you have taken and have submitted for our
consideration, and has requested that the vessel may be seized, under
the provisions of the Foreign Enlistment Act, upon the ground that
the evidence adduced affords proof that she is being fitted out for the
Government of the Confederate States of America;
We acquaint you that we have communicated with our solicitor
1 These affidavits, with others subsequently added, will be found in
the Note at the end of this Chapter.
% In an affidavit made in 1863 by a man who sailed in the ship as
paymaster it is said :-
“When the vessel sailed from Liverpool she had shot racks fitted
in the usual places; she had sockets in her decks, and the pins which
held fast frames on carriages for the pivot guns, and breaching bolts.
These had been placed in by the builders of the vessel, Messrs. Laird
and Co. She was also full of provisions and stores enough for four
months' cruise. When she sailed she had beds, bedding, cooking
utensils, and mess utensils, for 100 men, and powder tanks fitted in.
Affidavit of Clarence Yonge, 2nd April, 1863.
344
THE ALABAMA.
Chap. XIII. on the subject, who has advised us, that the evidence submitted is not
sufficient to justify any steps being taken against the vessel under
either the 6th or 7th sect. of Act 59 Geo. 3, cap. 69, and you are to
govern yourself accordingly.
“ The solicitor has, however, stated, that if there should be suffi-
cient evidence to satisfy a Court, of enlistment of individuals, they
would be liable to pecuniary penalties, for security of which, if
recovered, this Department might detain the ship until those penalties
are satisfied, or good bail given, but there is not sufficient evidence to
require the Customs to prosecute; it is, however, competent for the
United States' Consul, or any other person to do so, at their own risk,
if they see fit.
(Signed)
66 T. F. FREMANTLE.
"G. C. L. BERKELEY."
:
Mr. Adams had on the 22nd sent to the Foreign
Office copies of the affidavits which had been laid before
the Board of Customs. On the 23rd Mr. Squarey, the
solicitor on whose advice Consul Dudley had acted,
obtained an interview with Mr. Layard, the Under-
Secretary of State for the Foreign Department, and
appears, from a report of the conversation which he
sent to Mr. Adams, to have represented the urgency of
the case, and pressed for a speedy decision.
On the same day (the 23rd July) two further
affidavits were submitted by Mr. Squarey to the Board of
Customs. With them he sent a copy of an Opinion
which he had obtained from an eminent Counsel
(Mr. Collier) before whom all the evidence had been laid,
to the effect that an infringement of the Foreign Enlist-
ment Act was proved, and that the Collector of Customs
would be justified in detaining the vessel, and was
indeed bound to detain her. He asked that the question
might be reconsidered on this additional evidence. “The
gun-boat,” he added, “now lies in Birkenhead docks, ready
for sea in all respects, with a crew of fifty men on board.
She may sail at any time, and I trust the urgency of
the case will excuse the course I have adopted of
1 See Note at the end of this Chapter.
THE ALABAMA.
345
3
sending these papers direct to the Board instead of Chap. XIII.
transmitting them through the Collector at Liverpool,
and the request, which I now venture to make, that the
matter may receive immediate attention."
On the 24th, Mr. Adams sent to Earl Russell copies
of the two additional affidavits, and of Mr. Collier's
Opinion. These papers do not appear to have been
received until Saturday the 26th; but the delay is
immaterial, since the same information had been placed,
as we have seen, in the hands of the Commissioners of
Customs three days before, and must therefore have
found its way to the Foreign Office.
A ninth affidavit, sworn by a man named Redden,
was received at the Customs on the 25th, and at the
Foreign Office on the following day.
On Tuesday the 29th, the Law Officers, before whom
all the evidence had been laid as it reached the Foreign
Office, reported to the Secretary of State for Foreign
Affairs their opinion that the vessel should be detained.
But on the afternoon of the 28th the “ 290," as she
was then called (having received no name and being
known only by the number she bore in the builders'
yard), had left the dock in which she lay, had anchored
for the night off the public landing-stage at Liverpool,2
1
1 See Note at the end of this Chapter.
% “ We sailed from Liverpool on the 29th day of July, 1862. This
was four days sooner than we expected to sail. The reason for our
sailing at this time before we contemplated, was on account of infor-
mation which we had received that proceedings were being commenced
to stop the vessel from sailing. Captain Bullock sent Lieutenant Low
to me on Sunday evening, the 27th of July, to say that I must be at
Fraser, Trenholm, and Co.'s office early next morning. The next
morning I arrived at half-past 9 o'clock. Captain Butcher came in
and told me the ship, which at that time was called the "290,' would
sail the next day, and that he wanted me to go with him. In a few
minutes Captain Bullock came in and told me he wanted me to go
to
sea at a minute's notice; that they were going to send her right out.
The ladies and passengers were taken on board as a
blind." -- Affidavit of Clarence Yonge.
346
THE ALABAMA.
!
Chap. XIII. and next morning (the 29th July) went to sea without a
clearance, ostensibly on a trial trip, carrying with her,
in order to assist this pretence, a party of visitors, who
were sent back at the mouth of the river, and amongst
whom were several ladies. She proceeded first to
Moelfra Bay on the coast of Anglesea, where she rode
at anchor until two or three o'clock on the morning of
Thursday the 31st, without communicating with the
shore, and took on board about forty men, who had been
sent after her from Liverpool in a tug. The solicitors
of the American Consulate had written on the 28th to
the Board of Customs to say that they had every:
reason to believe that she would sail on the next day;
but this letter did not reach London till the morning
of the 29th. On that morning they telegraphed the
information that she had actually sailed; and by the
evening's post they wrote that they had every reason
to believe that she had gone to Queenstown. The
master of the tug which accompanied the “ 290" down
the Mersey returned to Liverpool in the evening; and
it appears that he reported his belief that she was
cruising off Point Lynas, a headland west of Moelfra.
This scrap of information reached the Board of Customs
on the 31st. Telegrams were sent from the Board of
Customs to Beaumaris, Holyhead, and Cork, directing
that she should be seized, should she put in at any of
those places, and a copy of the Law Officers' opinion
was despatched by the Colonial Office to the Governor
1 The dates are stated in the following Note, published in the
Customs Correspondence relating to the Alabama:-
“ 31st July 1862, at about Half-past Seven P.M.
Telegrams were sent to the Collectors at Liverpool and Cork,
pursuant to Treasury Order, dated 31st July, to seize the gun-boat
(290') should she be within either of those ports.
“Similar telegrams to the officers at Beaumaris and Holyhead
were sent on the morning of the 1st August. They were not sent on
the 31st July, the telegraph offices to those districts being closed.
“ And on the 2nd August a letter was also sent to the Collector at
Cork, to detain the vessel should she arrive at Queenstown.”
THE ALABAMA.
347
of the Bahamas, whither it was thought likely she Chap. XIII.
might bend her course. But she left the roads at
Moelfra more than twenty-four hours before the telegram
reached Beaumaris, and she did not go to Nassau. She
made straight for Terceira in the Azores, and arrived
safely in the harbour of Porto Praya.
Up to this time she was completely unarmed. She
had not on board, when she left the Mersey, “so much
as a signal gun or a musket,”!l nor had she taken in any
equipment at Moelfra. But she was met at Terceira by
the sailing-barque Agrippina, from London, and was
joined a little later by the steamer Bahama, which
had cleared from Liverpool for Nassau a fortnight after
the departure of the “ 290." These two vessels between
them brought her armament, all the clothing for her
crew, and an additional supply of coal, and the Bahama
likewise brought her future captain and officers. Captain
Semmes, formerly of the Sumter, had been appointed
as early as the 2nd May to the command of the new
ship: he was then at Nassau, arid, finding her gone on
his return to Liverpool, had followed her in the
Bahama. The transhipment was effected partly at
Porto Praya, partly in the bays of East and West Angra
on the southern coast of the island, and partly at sea,
just outside of the territorial line. What occurred when
the operation was complete is thus described by a
seaman who had gone out in the “ 290":-
“On the Sunday afternoon following, 2 Captain Semmes called all
hands aft, and the Confederate flag was hoisted, the band playing
* Dixie's Land.' Captain Semmes addressed the men, and said he
was deranged in his mind to see his country going to ruin, and he
had to steal out of Liverpool like a thief. That instead of them
watching him he was now going after them. He wanted all of us to
join him,—that he was going to sink, burn, and destroy all his enemy's
property, and that any that went with him was entitled to two-
1 Surveyor's Report, 30th July, 1862.
% 24th August, 1862.
348
THE ALABAMA. .
Chap. XIII. twentieths' prize money ; it did not matter whether the prize was sunk,
or burned, or sold, the prize money was to be paid. That there were
only four or five Northern ships that he was afraid of. He said that
he did not want any to go that was not willing to fight, and there was
a steamer alongside to take them back if they were not willing.
“ The vessel was all this time steaming to sea, with the Bahama at
a short distance. Forty-eight men, most of them firemen, refused to go,
and, an hour afterwards, were put on board the Bahama. I refused to
go, and came back with the rest in the Bahama. Captain Butcher,
Captain Bullock, and all the English engineers came with us and
landed here on Monday morning. When we left the Alabama she was
all ready for fighting, and steering to sea. I heard Captain Semmes
say he was going to cruise in the track of the ships going from New
York to Liverpool, and Liverpool to New York. The Alabama never
steamed while I was in her more than eleven knots, and cannot make
any more. We signed articles while in Moelfra Bay for Nassau or an
intermediate port. Captain Butcher got us to sign.”ı
Captain Semmes himself writes as follows respecting
the enlistment of the crew :-
" I had as yet no enlisted crew, and this thought gave me some
anxiety. All the men on board the Alabama, as well as those who
had come out with me on board the Bahamas had been brought thus
far under articles of agreement that were no longer obligatory. Some
of them had been shipped for one voyage, and some for another, but
none of them for service on board a Confederate cruiser. This was
done to avoid a breach of the British Foreign Enlistment Act; they
had of course been undeceived from the day of their departure from
Liverpool. They knew that they were to be released from the contracts
they had made; but I could not know how many of them would engage
with me for the Alabama.
“ The Alabama had brought out from the Mersey about sixty men,
and the Bahama brought about thirty more. I got eighty of these
ninety men, and felt very much relieved in consequence."2
CG
He elsewhere describes his crew as having been
picked up promiscuously about the streets of Liver-
pool.” Four of them were afterwards traced as belonging
to the Naval Reserve, and their names were struck off
the list.
1 Affidavit of Henry Redden, Boatswain's Mate.
2 Semmes, My Adventures Afloat, p. 408.
THE ALABAMA.
349
This account is substantially corroborated by the Chap. XIII.
affidavit afterwards sworn by Yonge, the paymaster, a
hostile witness :
Captain Bullock wrote a letter of instructions to me before we left
Liverpool, directing me to circulate freely among the men, and induce
them to go on the vessel after we got to Terceira. I accordingly did
circulate among the men on our way out, and persuaded them to join
the vessel after we should get to Terceira. Low did the same."
Referring to the 24th August, he adds :-
“ I had two sets of articles prepared, one for men shipping for a
limited time, the other for those willing to go during the war. The
articles were then re-signed, while the vessel was in Portuguese waters
but under the Confederate flag."
Yonge was dismissed from the ship at Jamaica.
He afterwards came to England and furnished evidence
to the American Legation.
Mr: Adams had at the beginning of July ordered
the Tuscarora, then stationed at Gibraltar, to England,
in the hope, should other means fail, of intercepting
the obnoxious steamer at sea. Captain Craven reached
Southampton as early as the 9th July, and received all
the information that Mr. Adams could give him. He
continued there, making repairs, till the 29th; when, on
being apprised that the Alabama had sailed, he weighed
anchor hastily and went to Queenstown. Here, on the
31st, he received information from Mr. Adams by letter
and telegraph that she was believed to be off Point Lynas.
He does not appear, however, to have put to sea till
the following day, when he “sailed up St. George's
Channel,” without descrying the object of his search.
His ill-success drew on him a sharp reproof from the
Minister. “It may have been of use to the Tuscarora
to have obtained repairs at Southampton to put her in
seaworthy condition. But, had I imagined the Captain
did not intend to try the sea, I should not have taken
the responsibility of calling him from his station. I can
350
THE ORETO AT NASSAU.
Chap. XIII. only say that I shall not attempt anything of the kind
again.” 1
This is the history of the building and fitting-out of
the Alabama. We will now return to the Oreto.
The Oreto, as we have seen, sailed from Liverpool on
the 22nd March, with a clearance for Sicily. Early in
April she made her appearance at New Providence, where
she remained nearly four months, lying during the earlier
part of that time at an anchorage eight or nine miles
from Nassau. The United States' Consul complained to
the Governor that she was fitting out for war—which
appears to have been a mistake; the senior naval officer
on the station was directed to keep watch on her move-
ments, and she was more than once examined. She had
been consigned, “as a merchant ship,” by Fraser, Tren-
holm, and Co. to their correspondents at Nassau ; and
application was made on their behalf for leave to ship
a cargo; but no cargo was taken on board, and she
finally cleared in ballast for Havana. Her crew, how-
ever, refused to weigh anchor, insisting that they had
been deceived; the vessel, they said, not having touched
at Palermo, there had been a deviation, which entitled
them to be discharged, and they would not sail unless
guaranteed against Federal cruisers. They were sum-
moned before a magistrate and obtained their discharge.
The naval officers who examined her reported that her
construction and internal fittings were clearly those of a
ship-of-war; and the Governor, yielding to the repre-
sentations of Captain Hickley, of Her Majesty's ship
Greyhound, ultimately directed that she should be seized
and libelled in the Vice-Admiralty Court of the colony
for a violation of the Foreign Enlistment Act. This
occurred in June. On the 2nd August, after a long
trial, the Judge of the Court decreed the release of the
ship, on the ground that no proof had been given of any
1 Mr. Adams to Captain Craven, 6th August, 1862.
SHE PROCEEDS TO MOBILE.
351
1
violation of the Act within the limits of his juris- Chap. XIII.
diction, and no evidence produced connecting her
with the Confederate Government. A second crew
was shipped, but these also refused to go, and she
went to sea at last with five firemen and fourteen deck
hands.
The Oreto had in fact been ordered by Bullock, as
agent for the Confederate Government, from one ship-
building firm, as the Alabama had been ordered by
him from another; and Captain Maffit, the officer
appointed to command her, was all this while at Nassau,
awaiting the result of the trial. Having at last got her
to sea, he proceeded, not to Havana, but to an islet due
south of New Providence, one of that multitude of lime-
stone rocks--mostly desolate and uninhabited, and called
(from the Spanish word cayo) “cays," or "keys ”—with
which these seas are studded, and the principal cluster of
which forms the Bahamas. At Green Key he took guns
and stores on board from a schooner sent to meet him
there by a Confederate agent at Nassau, hoisted the Con-
federate flag, and gave his steamer the name of the Florida.
But his scanty crew was in a few days reduced by yellow
fever to one fireman and four deck hands; with his vessel
thus completely disabled he made his way to Cardenas in
Cuba, and thence to Havana; and on the 4th September
ran into Mobile, in broad daylight, through the fire of
three blockading ships, without returning a shot, and
with only a steersman on deck; his little handful of men
sent below, and himself so weakened by sickness as to be
unable to move without assistance. The officer com-
manding the blockading force was dismissed the service
for this mishap, which he attributed to the superior
speed of the Confederate ship, and (with more justice) to
1 The only acts proved were the putting of straps on some spare
blocks, and the putting on board of some shell in boxes; but these had
been re-landed before the seizure. It was sworn that, as. regarded her
fittings, no alteration had been made since she left Liverpool.
:
352
LIST OF SUSPECTED SHIPS.
Chap. XIII. the “unparalleled audacity" of the Confederate sailor.
The Florida remained in Mobile till the 16th January,
1863, when her fearless commander, his ship now in
fighting condition, put to sea and commenced a cruise,
to which we may have occasion to refer hereafter.
I have stated with some minuteness the circum-
stances of these two cases, on account of the importance
which has been assigned to them-an importance which
they will hardly retain in the history of International
Law-and because we are in possession of the facts.
They are in truth, however, only two out of a long list
of cases, in which the British Government was called
upon to inquire or to act, and all of which ought to be
taken into account in forming a judgment of the general
conduct of that Government. Of the remainder it will
be enough to give a concise account in the order of
time. I shall take this account, in great measure,
from a memorandum furnished to Mr. Adams on the
3rd November, 1865, and included in the papers which
have been presented to Parliament, making additions to
it as regards the more important cases. As to some,
indeed, it is our only source of information.
Ships which were alleged or suspected to be Fitting-out
for War.
November 16, 1862.—The Hector. Mr. Adams's appli-
cation referred to the Admiralty, November 18. This
was an inquiry whether the Hector was building for Her
1 The Florida flew the British flag till she was fired at, when she
hauled it down, and (according to Captain Semmes's account) hoisted
Confederate colours. The unlucky Captain of the Oneida said in
his report that his enemy “had no flag to fight under.” The discre
pancy is immaterial, since she did not attempt to fight; the only rule
being that a ship may not fire without showing her true colours.
The
Oneida fired' her broadside when within a few yards of the Florida.
The latter was much shattered when she gained Mobile.
THE ALEXANDRA.
353
Majesty's Government. On reference to the Admiralty, Chap. XIII.
it was answered in the affirmative.
January 16, 1863.-- The Georgiana. Referred to
Treasury and Home Office, January 17. Ship said to
be fitting at Liverpool for the Confederates. Mr. Adams
could not divulge the authority on which this statement
was made. Reports from the Customs, sent to Mr. Adams
on the 18th, 19th, and 27th of January, tended to show
hat she was not designed for war. She sailed on the
21st January for Nassau, and on the 19th March was
wrecked in attempting to enter Charleston Harbour. )
March 26, 1863.-The Phantom and the Southerner.
Referred to Treasury and Home Office, March 27; to
the Law Officers of the Crown, June 2.
The Phantom was fitting at Liverpool, the Southerner
at Stockton-on-Tees. Both proved to be intended for
blockade-runners.
March 30, 1863.-The Alexandra. Referred to Trea-
sury, Home Office, and Law Officers, March 31.
Reports were received from the Treasury on the
31st March, and from the Home Office on the 1st
April. On the 4th April the Law Officers advised
seizure, and she was seized on the following day.
This vessel was built at Liverpool by Miller and Co.,
the builders of the Florida, nominally for Fraser, Tren-
holm, and Co., a firm with the name of which the reader
is by this time familiar. She was launched in March,
and immediately taken to a public dock for completion.
According to the evidence produced at the trial, she was
apparently built for war, and not for commerce, but
might have been used as a yacht.
At the trial, which took place before the Chief
Baron of the Court of Exchequer on an information by
the Attorney-General, the jury found for the defendants.
1 The evidence as to the build and fittings of the ship proved that
she was strongly built, principally of teak wood; her beams and
hatches, in strength and distance apart, were greater than those in
1
2 A
354
LIST OF SUSPECTED SHIPS.
Chap. XIII An application subsequently made for a new trial, on
the two grounds that the Judge had misdirected the
jury, and that the verdict was against the evidence,
failed, the four Judges composing the Court being
equally divided. The Crown appealed against this
decision to the Exchequer Chamber, but failed here
also, that Court having no power to entertain the
appeal. The costs and damages, fixed by arrange-
ment at 3,7001., were paid by the Crown.
The vessel herself, having been released, was sent
to Nassau, where she was again libelled in the Vice-
Admiralty Court of the Bahamas, and a second time
released.
In consequence, as it appears, of this deten-
merchant-vessels; the length and breadth of her hatches were less than
the length and breadth of hatches in merchant-vessels; her bulwarks
were strong and low, and her upper works were of pitch pine. At
the time of her seizure workmen were employed in fitting her with
stanchions for hammock-nettings; iron stanchions were fitted in the
hold; her three masts were up, and had lightning conductors on each
of them; she was provided with a cooking apparatus for 150 or 200
people; she had complete accommodation for men and officers; she had
only stowage room sufficient for her crew, supposing them to be
thirty-two men; and she was apparently built for a gun-boat, with
low bulwarks, over which pivot guns could play. The Commander of
Her Majesty's ship Majestic, stationed at Liverpool, stated that she
was not intended for mercantile purposes; that she might be used as a
yacht, and was easily convertible into a man of war. The defendants
offered no evidence.
The question was left to the jury by the Chief Baron as
follows:
“Was there any intention that, in the port of Liverpool, or in any
other port, she should be either equipped, furnished, fitted out, or
rmed, with the intention of taking part in any contest ? If you think
the object was to equip, furnish, fit out, or arm that vessel at Liverpool,
then that is a sufficient matter. But if you think the object really was
to build a ship in obedience to an order and in compliance with a con-
tract, leaving to those who bought it to make what use they thought
fit of it, then it appears to me that the Foreign Enlistment Act has not
in any degree been broken.”
The arguments on the motion to discharge the rule are recorded in
Hurlstone and Coltman's Exchequer Reports, ii, 431. (Attorney-
General v. Sillem.)
arm
THE GEORGIA.
355
tion, she remained at Nassau until the end of the war, Chap. XIII.
and was afterwards known as the Mary. The Govern-
ment of the United States laid claim to her as public
property, and an action was brought against the ship in
the British Court of Admiralty.
April 8, 1863.---The Japan, Virginia, or Georgia.
Referred to Home Office and Treasury, April 8.
Mr. Adams stated that a steamer called originally
the Japan, and afterwards the Virginia, intended for
the naval service of the Confederates, had sailed
from the Clyde; that her immediate destination was
believed to be Alderney; and that her armament was to
meet her there in a vessel from Newhaven. Instruc-
tions were sent to the Lieutenant-Governor of Guernsey
to be on the watch, and, should occasion arise, to enforce
the Foreign Enlistment Act; and the officers of the
Customs at Alderney were directed to give their assist-
ance. It appeared on inquiry that she was a new vessel
built on the Clyde; that she had cleared on the 1st
April for Point de Galle and Hong Kong in ballast, and
had sailed a day or two afterwards with a crew of forty-
eight men; that her framework and platings were such
as are usual in commercial vessels of her class; and that
the revenue officers had observed nothing in her spars
or fittings to excite the suspicion that she was intended
All her crew signed articles for Singapore.
She did not go to Alderney, but to the coast of France,
where she stood on and off till she met with the Alar,
a small steamer trading between Newhaven and the
Channel Islands, which brought her captain and her
whole armament. The two steamers, when they encoun-
tered one another, were within three or four miles of
Morlaix, and they were busy for three nights in tran-
shipping arms and stores, anchoring after dark close
to the shore, and gaining an offing in the day-time.
The captain then put on a uniform, had the crew piped
aft, and told them he was not going to Singapore but to
for war.
2 A 2
356
THE MONASSIR AND TOUSSOON.
Chap. XIII. cruise, and that those who did not choose to sign
articles and enter the Confederate service might return
in the Alar. This happened, according to the seaman
who gave evidence, about two miles from Brest. The
Alar returned ; the Virginia (afterwards called the
Georgia) appears to have gone into Cherbourg, and
subsequently went cruising.
July 11, 1863.—The iron-clads El Monassir and El
Toussoon. Referred to Treasury, Home Office, and Law
Officers, July 13.
These were two iron-plated steamers, one armed with
a projecting ram or piercer, stated to be building in the
yard of Messrs. Laird and Co., at Birkenhead, and very
nearly finished. Inquiry was at once made. The Collector
of Customs at Liverpool reported that, according to his
belief, they were not building to the order of the Con-
federates, but under a French contract. The French
Government denied that they were for the French
navy; and it was represented that they were for a
M. Bravay, a French merchant then at Liverpool,
a member of a Paris firm, who had bought them for
the Government of Egypt. The Pasha of Egypt dis-
claiming any knowledge of them, M. Bravay explained
that he had bought them on the faith of an order
for two iron-clads given to him by the Pasha’s prede-
cessor, who died in 1862. It appeared that M. Bravay
had in fact made in February 1863 certain claims
against the Government of Egypt, amongst which was
a claim on account of two iron-clads, which he said he
had been verbally ordered by the late Pasha to procure
for him. Eventually he produced a copy of a deed, dated
18th July, 1863, from which it appeared that the vessels
had been ordered by Bullock in June 1862, and that
Bullock's interest in them had been transferred to Bravay.
While these inquiries were being prosecuted, the vessels
were getting ready, and the builders desired to send out
one of them on a trial trip. But this proposal was
THE RAPPAHANNOCK.
357
abandoned on its being notified that she must carry Chap. XIII.
with her a guard of seamen and marines from the
Majestic, the commander of which had been directed to
keep watch upon their movements. Information was
afterwards received that an attempt might possibly be
made to elude the vigilance of the Majestic, and carry
the two steamers to sea by force. They were then
seized; but, considerable difficulty being encountered in
proving that they were intended for the Confederates,
the Government at last cut the knot by purchasing
them, at a cost of half-a-million sterling.
October 17, 1863.-The Canton or Pampero. Referred
to Treasury, Home Office, and Admiralty, October 19.
This vessel, which was being built on the Clyde, and
stated to be intended as a merchant-ship for the China
trade, was seized after inquiry, under the advice of the
Lord-Advocate. The Crown obtained judgment by
default, the case being undefended, and the vessel
remained under seizure till the end of the war.
November 28, 1863.-The Rappahannock. Referred
to Home Office, Admiralty, Treasury, and Law Officers,
November 29.
The Victor, an old despatch-boat belonging to Her
Majesty's Navy, was one of a number of ships ordered
by the Admiralty to be sold as worn-out and unser-
viceable. An offer for her was accepted on the 14th
September, 1863, and on the 10th November the hull
was delivered to the order of the purchasers, Messrs.
Coleman and Co., the masts, sails, and rigging having
been previously removed, as well as the pivots and other
fittings for guns. On the 26th November she came
into the harbour of Calais, flying the Confederate flag,
and announced herself as the Confederate steamer
Rappahannock. She had been masted, it appeared, and
partly rigged, at Sheerness, and, from a fear lest the
vigilance of the Government should be aroused, had put
to sea in haste on the night of the 25th with her spars
358
LIST OF SUSPECTED SHIPS.
Chap. XIII. and rigging incomplete, and leaving her water-tanks and
most of her coal behind. She was recognized, I believe,
by the French Government as a ship-of-war, on the
person in command of her producing a Confederate
commission; and received permission to make such
repairs as were necessary to enable her to go to sea,
provided there were no augmentation of her warlike
force. It was subsequently found, however, that she
had greatly increased her crew, and she was on this
charge detained by order of the Government till the
end of the war, when she was sold to a Liverpool
shipowner and christened the Beatrix.
In consequence of this affair, orders were given that
no more ships should be sold out of the Navy, lest they
should fall into belligerent hands. It may be added that,
when the flotilla of gun-boats which Captain Sherard
Osborn had procured for the Emperor of China was
to be disposed of, the British Government, lest they
should be used for the purposes of the war, undertook
the sale of them, guaranteeing the Chinese Government
against loss. This transaction cost the nation altogether
upwards of 100,0001.
March 18, 1864. The Amphion. Referred to Home
Office, March 18.
This vessel was said to be equipped for the Con-
federate service. The Law Officers reported that no
case was made out. She was eventually sent to Copen-
hagen for sale as a merchant-ship.
April 16, 1864.—The Hawk. Referred to Home
Office, to the Lord-Advocate, and the Treasury, April
18.
This case had been already (April 4) reported on
by the Customs, and the papers sent to the Lord-
Advocate. On the 13th April the ship, which was
suspected of having been built for the Confederates,
left the Clyde without a register, and came to Green-
hithe. The Law Officers decided that there was no
!
THE SHENANDOAH.
359
evidence to warrant a seizure. She proved to be a Chap. XIII.
blockade-runner.
May 9, 1864.-The Georgia, at Liverpool.
The earlier history of this ship has been given above.
She arrived in Liverpool in May 1864 under Confederate
colours, and was dismantled and sold to an English firm
for use as a merchant-ship. Mr. Adams represented on
the 27th July that she was being refitted for war. This
proved to be an error. She was sent by her pur-
chasers to Portugal, but was captured off Lisbon by
the Niagara, and carried to the United States as a
prize.
This case gave occasion to the Order of the 8th
September, 1864, prohibiting ships of war belonging
to either belligerent from being dismantled and sold
in British ports.
November 18, 1864.—The Sea King, or Shenandoah.
The first report received concerning this vessel was
from Her Majesty's Consul at Teneriffe. She was a
merchant-steamer which had belonged to a Bombay
Company, and been employed in the East India trade
under the name of the Sea King. It appeared that
she had sailed from London on the 7th October, not
fitted in any way as a vessel-of-war, with two eighteen-
pounders on board, such as merchantmen carry for
defence in the China seas, and had met in Funchal
Roads a steamer called the Laurel, which had cleared
from Liverpool for Nassau. The two vessels went to the
island of Porto Santo, at a short distance from Madeira,
and anchored in smooth water close to the shore, where
the Laurel discharged arms, ammunition, and stores
into the Sea King-an operation which lasted during
several days. The master of the latter vessel then told
his crew that she was transferred to the Confederate
navy; that those who chose to join her might do so;
1 See Note to Chapter VI, p. 141.
360
LIST OF SUSPECTED SHIPS.
Chap. XIII. the rest might take their clothes and go aboard the
steamer alongside, which would carry them to Liver-
pool. Her new captain and officers, who had come out
in the Laurel, used every endeavour to induce the men
to sign articles, offering as much as 71. a-month and 161.
bounty. A bucket of sovereigns, it is said by an eye-
witness, was brought on deck, and the officers took up
handfuls to tempt the men. Of the Sea King's crew
only four yielded-an engineer, two firemen, and an
ordinary seaman; forty-two stood firm, and were carried
by the Laurel to Funchal. The Sea King, with only
nineteen men on board beside her officers, hoisted the
Confederate flag, and started on her cruise as the
Shenandoah.
January 30, 1865.—The Virginia, and the Louisa Ann
Fanny. Referred to Treasury, February 1.
Vessels said to be in course of equipment at
London.
No case was established; and they proved to be
blockade-runners, as reported by the Governor of the
Bahamas, who had been instructed to watch their pro-
ceedings.
February 7, 1865.—The Hercules and Ajax. Referred
to Treasury and Home Office, February 8 and 9.
Both vessels built in the Clyde.
The Ajax first proceeded to Ireland, and was de-
tained at Queenstown by the mutiny of some of the
crew, who declared she was for the Confederate service.
She was accordingly searched, but proved to be only
fitted as a merchant-ship. The Governor of the Ba-
hamas was instructed to watch her at Nassau. On her
arrival there she was again overhauled, but nothing
suspicious discovered, and the Governor reported that
she was adapted, and he believed intended, for a tug-
boat.
The Hercules being still in the Clyde, inquiries
were made by the Customs' officers there, who reported
PROSECUTIONS IN ENGLAND.
361
.
that she was undoubtedly a tug-boat and the sister ship Chap. XIII,
to the Ajar.
Prosecutions for procuring Men to serve in Confederate
Ships.
Five prosecutions were instituted at different times
against persons charged with having enlisted or engaged
1 The story of a ship of many names—the Sphinx, Stoer Kodder,
Olinde, or Stonewall-may be fitly mentioned here, although she
was neither built nor armed in Great Britain, and never found
her way into any British port. The Sphinx was one of six vessels
which Captain Bullock, when he found himself foiled in England
by the seizure of the Alexandra and the two iron-clads, had
ordered in France. In France a company was formed for the express
purpose of selling ships-of-war to the Confederates, and at the head of
it was a great shipbuilder of Bordeaux, who was an active member of
the Chamber of Deputies. The six ships were built, some at Bordeaux,
some at Nantes. Two were iron-clad rams. The complaints of
Mr. Dayton induced the French Government to institute an inquiry.
M. Arman denied indignantly the charge alleged against him, but
the French Government finally decided on cancelling the permission to
arm these ships which it had previously given. Five of the vessels
were ultimately sold by the builders to the Governments of Prussia,
Sweden, and Peru. One iron-clad, the Sphinx, which remained, was
offered to Denmark, and actually sent, as the Stoer Kodder, under
the French flag to Copenhagen; whence, the Danish Government
refusing to take her, she returned under Danish colours to the Breton
coast, there took on board some coal sent from St. Nazaire, and arms
and men (part of the crew of the Florida) from England, and went
to sea as the Confederate steamer Olinde, a name subsequently
exchanged for the Stonewall. She first made for Lisbon, where she
met with two Federal cruisers. From these she escaped by the enforce-
ment of the rule of twenty-four hours, found her way to Havana, and
at the close of the war fell into the hands of the Government of the
United States, by whom she was disposed ofat a rather high price, it
was said to the Mikado of Japan.
The Government of the United States brought an action against
M. Arman to recover the money which had been paid to him by
Bullock, and a further sum for damages. His proceedings, coupled
with his position as a member of the Chamber, had raised, it was
alleged, the hopes of the Confederates, and had tended to drive
American shipping from the sea. The injury thus occasioned was
estimated at 2,800,000 francs. I do not know what was the fate of
this singular demand.
362
THE ALABAMA.
Chap. XIII. men for the naval service of the Confederate States. Of
.
these three were successful. Five of the accused were
Note.
convicted, or pleaded guilty. Two persons, whom it
was intended to prosecute for having induced men to
join the Rappahannock, saved themselves by absconding.
In every case in which men belonging to the Naval
Reserve could be traced as entering the Confederate
service, their names were struck off the list. No prose-
cution appears to have been instituted against Bullock
himself, nor does there appear to have been evidence that
he actually infringed the law.
These are the facts connected with the equipment,
or alleged equipment, of Confederate ships-of-war in
British ports. In the next Chapter I shall give an
account of the international questions to which these
facts gave rise.
NOTE.
Affidavits laid before the Board of Customs and before the Secretary of
State for Foreign Affairs (22nd July) in the case of the Alabama.
No. 1.
“I, William Passmore, of Birkenhead, in the County of Chester,
Mariner, make oath, and say as follows:
“1. I am a seaman, and have served as such on board Her
Majesty's ship Terrible during the Crimean war.
“2. Having been informed that hands were wanted for a fighting
vessel built by Messrs. Laird and Co., of Birkenhead, I applied on
Saturday, which was, I believe, the 21st day of June last, to Captain
Butcher, who, I was informed, was engaging men for the said vessel,
for a berth on board her.
“3. Captain Butcher asked me if I knew where the vessel was
going, in reply to which I told him I did not rightly understand about
it. He then told me vessel was going out to the Government of the
Confederate States of America. I asked him if there would be any
fighting, to which he replied, 'Yes; they were going to fight for the
Southern Government. I told him I had been used to fighting vessels,
DEPOSITIONS.
363
and showed him my papers.
I asked him to make me signal-man on Chap. XIII.
board the vessel, and in reply he said that no articles would be signed
until the vessel got outside, but he would make me signal-man, if they
Note.
required one, when they got outside.
“4. The said Captain Butcher then engaged me as an able seaman
on board the said vessel at the wages of 41. 10s. per month; and it was
arranged that I should join the ship in Messrs. Laird and Co.'s yard on
the following Monday. To enable me to get on board, Captain Butcher
gave me a password, the number (290.'
"5. On the following Monday, which was, I believe, the 23rd day
of June last, I joined the said vessel in Messrs. Laird and Co.'s yard at
Birkenhead, and I remained by her till Saturday last.
“6. The said vessel is a screw steamer of about 1,100 tons burden,
as far as I can judge, and is built and fitted up as a fighting ship in all
respects; she has a magazine and shot and canister racks on deck, and
is pierced for guns, the sockets for the bolts of which are laid down.
The said vessel has a large quantity of stores and provisions on board,
and she is now lying at the Victoria Wharf in the Great Float at
Birkenhead, where she has taken in about 300 tons of coal.
7. There are now about thirty hands on board her, who have
been engaged to go out in her; most of them are men who have pre-
viously served on board fighting ships; and one of them is a man who
served on board the Confederate steamer Sumter. It is well known
by the hands on board that the vessel is going out as a privateer for the
Confederate Government to act against the United States under a
commission from Mr. Jefferson Davis. Three of the crew are, I
believe, engineers; and there are also some firemen on board.
“8. Captain Butcher and another gentleman have been on board
the ship almost every day. It is reported on board the ship that
Captain Butcher is to be the sailing-master, and that the other
gentleman, whose name, I believe, is Bullock, is to be the fighting
captain.
“9. To the best of my information and belief, the above-mentioned
ssel, which I have heard is to be called the Florida, is being
equipped and fitted out in order that she may be employed in the
service of the Confederate Government in America to cruise and com-
mit hostilities against the Government and people of the United States
of America.
(Signed) WILLIAM PASSMORE.'
66
vess
No. 2.
"I, John de Costa, of No. 8, Waterloo-road, Liverpool, Shipping
Master, make oath, and say as follows:-
“1. I know, and have for several months known, by sight Captain
364
THE ALABAMA.
Chap. XIII. Bullock, who is very generally known in Liverpool as an Agent or
Commissioner of the Confederate States in America.
Note.
“2. In the month of March last I saw the screw-steamer Annie
Childs, which had run the blockade from Charleston, enter the River
Mersey. She came up the Mersey with the Confederate flag flying at
her peak; and I saw the Oreto, a new gun-boat which had been
recently built by Messrs. W. C. Miller and Sons, and which was then
lying at anchor in the river off Egremont, dip her colours three times
in acknowledgment of the Annie Childs, which vessel returned the
compliment, and a boat was immediately afterwards despatched from
the Annie Childs to the Oreto with several persons on board, besides the
men who were at the oars.
“3. On the 22nd day of March last I was on the North Landing
Stage between 7 and 8 o'clock in the morning; I saw the said Captain
Bullock go on board a tender, which afterwards took him off to the
said gun-boat Oreto, which was then lying in the Sloyne. Just
before he got on board the tender, he shook hands with a gentleman
who was with him, and said to him, This day six weeks you will get
a letter from me from Charleston,' or words to that effect.
4. On the same day, between 11 and 12 o'clock, as well as I can
remember, I saw the Oreto go to sea. She came well in on the
Liverpool side of the river, and from the Princes Pier Head where I
was standing, I distinctly saw the said Captain Bullock on board her,
with a person who had been previously pointed out to me by a fireman
who came to Liverpool in the Annie Childs as a Charleston pilot,
who had come over in the Annie Childs with Captain Bullock to
take the gun-boat out.
(Signed) - JOHN DE COSTA."
+
No. 3.
“I, Allan Stanley Clare, of Liverpool, in the County of Lancaster,
Articled Clerk, make oath, and say as follows :-
“1. On the 21st day of July.now instant, I examined the book at
the Birkenhead Dockmaster's Office at Birkenhead, containing a list of
all vessels which enter the Birkenhead Docks; and I found in such book
an entry of a vessel described as “ No. 290,' and from the entries in the
said book, in reference to such vessel, it appears that she is a screw-
steamer, and that her registered tonnage is 500 tons, and that Matthew
J. Butcher is her master.
(Signed) "ALLAN S. CLARE."
DEPOSITIONS.
365
Chap. XIII.
No. 4.
Note.
“We, Henry Wilding, of Liverpool, in the County of Lancaster,
Gentleman, and Matthew Maguire, of Liverpool, aforesaid, Agent,
make oath and say as follows:
“ 1. I, the said Matthew Maguire, for myself, say that on the 15th
day of July now instant, I took Richard Brogan, whom I know to be
an apprentice, working in the ship-building yard of Messrs. Laird and
Co., at Birkenhead, to the above-named deponent, Henry Wilding, at
his residence at New Brighton.
“ 2. And I, the said Henry Wilding, for myself, say as follows:-
I am the Vice-Consul of the United States of North America, at
Liverpool.
“ 3. On the 15th day of July, now instant, I saw the said Richard
Brogan, and examined him in reference to a gun-boat which I had heard
was being built by the said Messrs. Laird and Co. for the so-called
Confederate Government, and the said Richard Brogan then informed
me that the said vessel was built to carry four guns on each side, and
four swivel guns; that Captain Bullock had at one time, when the
vessel was in progress, come to the yard almost every day to select the
timber to be used for the vessel. That the said Captain Bullock was
to be the Captain of the said vessel, and that the said Captain Bullock
had asked the said Richard Brogan to go as carpenter's mate in the
said vessel for three years, which the said Richard Brogan had declined
to do, because Mr. Laird, who was present at the time, would not
guarantee his wages. That the said vessel was to carry 120 men, and
that 30 able seamen were already engaged for her. That the petty
officers for the said vessel were to be engaged for three years, and the
seamen for five months. That the said vessel was then at the end of
the new warehouses in the Birkenhead Dock, and that it was under-
stood she was to take her guns on board at Messrs.- Laird and Co.'s
shed further up the dock; and that it was generally understood by the
men in Messrs. Laird and Co.'s yard, that the said vessel was being
built for the Confederate Government.
“ 4. The vessel above-mentioned is the same which is now known
as 'No. 290,' and I verily believe that the said vessel is in fact intended
to be used as a privateer or vessel-of-war, under a commission from the
so-called Confederate Government, against the United States' Govern-
ment.
(Signed)
65 H. WILDING.
" MATTHEW MAGUIRE."
366
THE ALABAMA.
Chap. XIII.
No. 5.
Note.
1
“I, Thomas Haines Dudley, of No. 3, Wellesley-terrace, Princes
Park, in the Borough of Liverpool, in the county of Lancaster, Esq.,
being one of the people called Quakers, affirm and say as follows:
“ 1. I am the Consul of the United States of North America, for
the Port of Liverpool and its dependencies.
“ 2. In the month of July, in the year 1861, information was sent
by the United States' Government to the United States' Consulate at
Liverpool, that a Mr. James D. Bullock, of Savannah, in the State of
Georgia, who was formerly the master of an American steamer, called
the Cahawba, was reported to have left the United States for England,
taking with him a credit for a large sum of money, to be employed in
fitting out privateers, and also several commissions issued by the
Southern Confederate States for such privateers, and in the month of
August in the year 1861, information was sent by the United States'
Government to the United States' Consulate at Liverpool, that the
said Captain Bullock was then residing near Liverpool, and acting as
the agent of the said Confederate States in Liverpool and London.
" 3. In accordance with instructions received from the Government
of the United States, steps have been taken to obtain information as to
the proceedings and movements of the said James D. Bullock, and
I have ascertained the following circumstances, all of which I verily
believe to be true, viz., that the said James D. Bullock is in constant
communication with parties in Liverpool, who are known to be con-
nected with, and acting for the parties who have assumed the Govern-
ment of the Confederate States. That the said James D. Bullock,
after remaining for some time in England, left the country, and after
an absence of several weeks, returned to Liverpool in the month of
March last from Charleston, in the State of South Carolina, one of the
seceded States, in a screw-steamer, then called the Annie Childs,
which had broken the blockade of the Port of Charleston, then and
now maintained by the United States' Navy, and which vessel, the
Annie Childs, carried the flag of the Confederate States as she came
up the Mersey. That, shortly after the arrival of the said James D.
Bullock at Liverpool in the Annie Childs, as above-mentioned, he
again sailed from Liverpool in a new gun-boat, called the Oreto, built
at Liverpool by Messrs. W. C. Miller and Sons, shipbuilders, and com-
pleted in the early part of the present year, and which gun-boat, the
Oreto, though she cleared from Liverpool for Palermo and Jamaica,
in reality never went to those places, but proceeded to Nassau, New
Providence, to take on board guns and arms, with a view to her being
used as a privateer or vessel-of-war under a commission from the so-
called Confederate Government against the Government of the United
States, and which said vessel, the Oreto, is stated to have been lately
seized at Nassau by the commander of Her Majesty's ship Greyhound.
That the said James D. Bullock has since returned again to Liverpool,
DEPOSITIONS.
367
and that before he left Liverpool, and since he returned, he has taken Chap. XIII.
an active part in superintending the building, equipment, and fitting
Note.
out of another steam gun-boat, known as 'No. 290,' which has lately
been launched by Messrs. Laird and Co., of Birkenhead, and which is
now lying, as I am informed and believe, ready for sea in the Birken-
head Docks, with a large quantity of provisions and stores, and thirty
men on board. That the said James D. Bullock is going out in the
said gun-boat No. 290,' which is nominally commanded by one Matthew
S. Butcher, who, I am informed, is well acquainted with the naviga-
tion of the American coast, having formerly been engaged in the coast-
ing trade between New York, Charleston, and Nassau.
264. From the circumstances which have come to my knowledge, I
verily believe that the said gun-boat ‘No. 290' is being equipped and
fitted out as a privateer or vessel of war to serve under a commission
to be issued by the Government of the so-called Confederate States,
and that the said vessel will be employed in the service of the said
Confederate States to cruise and commit hostilities against the Govern-
ment and people of the United States of North America.
(Signed) " THOMAS H. DUDLEY."
3
No. 6.
1
“ I, Matthew Maguire, of Liverpool, agent, make oath, and say as
follows:
"1. I know Captain J. D. Bullock, who is commonly reputed to be
the Agent or Commissioner of the Confederate States of America at
Liverpool.
" 2. I have seen the said J. D. Bullock several times at the yard of
Messrs. Laird and Co., at Birkenhead, where a gun-boat, known as
' No. 290,' has lately been built, whilst the building of the said vessel
has been going on.
“ 3. On the 2nd day of July now instant, I saw the said J. D.
Bullock on board the said vessel in Messrs. Laird and Co.'s yard ; he
appeared to be giving orders to the workmen who were employed about
such vessel.
(Signed) " MATTEEW MAGUIRE.”
M
368
THE ALABAMA.
Chap. XIII.
Note.
Subsequent Affidavits sent by Mr. Squarey to the Board of Customs on the
23rd July
No. 7.
"I, Edward Roberts, of No. 6, Vere-street, Toxteth Park, in the
county of Lancaster, ship-carpenter, make oath and say as follows.-
"1. I am a ship-carpenter, and have been at sea for about four
years in that capacity.
“2. About the beginning of June last I had been out of employ
for about two months, and hearing that there was a vessel in
Messrs. Laird and Co.'s yard fitting out to run the blockade, I applied
to Mr. Barnett, shipping-master, to get me shipped on board the said
vessel.
“3. On Thursday, the 19th day of June last, I went to the said
Mr. Barnett's Office, No. 11, Hanover-street, Liverpool, in the county
of Lancaster, and was engaged for the said vessel as carpenter's mate.
By the direction of the said Mr. Barnett I met Captain Butcher the
same day on the George's landing-stage, and followed him to Messrs.
Laird and Co's ship-building yard, and on board a vessel lying there.
The said Captain Butcher spoke to the boatswain about me, and I
received my orders from the said boatswain. At dinner-time the same
day, as I left the yard; the gateman asked me if I was going to work
on that gun-boat;' to which I replied, "Yes.'
“4. The said vessel is now lying in the Birkenhead float, and is
known by the name of "No. 290.” The said vessel has coal and stores
on board.
The said vessel is pierced for guns, I think four on a side,
and a swivel gun. The said vessel is fitted with shot and canister-
racks, and has a magazine. There are about fifty men, all told, now
on board of the said vessel. It is generally understood on board of
the said vessel that she is going to Nassau for the Southern Govern-
ment.
“5. I know Captain Bullock by sight, and have seen him on board
of the said vessel five or six times; I have seen him go round the said
vessel with Captain Butcher. I understood both at Messrs. Laird and
Co's yard and also on board the said vessel, that the said Captain
Bullock was the owner of the said vessel.
“6. I have been working on board the said vessel from 19th day
of June last up to the present time, with wages at the rate of 61. per
month, payable weekly. I have signed no articles of agreement. The
talk on board is that an agreement will be signed before sailing.
(Signed) " EDWARD ROBERTS."
DEPOSITIONS.
369
No. 8.
Chap. XIII.
Note.
From 14 years
“I, Robert John Taylor, of Mobile, but at present remaining
temporarily at Liverpool, mariner, make oath and say as follows:-
“1. I am a native of London, and 41 years of age.
upwards I have followed the sea. During the last fifteen years I
have been living in the Confederate States of America, principally at
Savannah and Mobile, and since the Secession movement I have been
engaged in running the blockade. I have run the blockade six times,
and been captured once.
“2. The vessels in which I have been engaged in running the
blockade have sailed from Mobile, and have gone to Havana and New
Orleans. I am well acquainted with the whole of the coast of the
Confederate States, as I have been principally engaged since 1847 in
trading to and from the Gulf ports.
“3. I came to England after my release from Fort Warren, on the
29th of May last. I came here with the intention of going to the
Southern States, as I could not get there from Boston.
“4. Mr. Rickarby, of Liverpool, a brother of the owner, at Mobile,
of the vessel in which I was captured when attempting to run the
blockade, gave me instructions to go to Captain Butcher at Laird's
yard, Birkenhead. I had previously called on Mr. Rickarby, and
told him that I wanted to go to the South, as the Northerners had
robbed me of my clothes when I was captured, and I wanted to have
satisfaction..
“5. I first saw Captain Butcher at one of Mr. Laird's offices last
Thursday fortnight (namely the 3rd of July last). I told him that I
had been sent by Mr. Rickarby, and asked him if he were the Captain
of the vessel which was lying in dock. I told him that I was one of
the men that had been captured in one of Mr. Rickarby's vessels,
and that I wanted to get South in order to have retaliation of the
Northerners for robbing me of my clothes. He said that if I went
with him in his vessel I should very shortly have that opportunity.
“6. Captain Butcher asked me at the interview if I was well
acquainted with the Gulf ports, and I told him I was. I asked him
what port he was going to, and he replied that he could not tell me
then, but that there would be an agreement made before we left for sea.
I inquired as to the rate of wages, and I was to get 41. 10s. per month,
payable weekly.
“7. I then inquired if I might consider myself engaged, and he
replied, Yes, and that I might go on board the next day, which
I accordingly did ; and I have been working on board up to last
Saturday night.
“8. I was at the siege of Acre in 1840, in Her Majesty's frigate
Pique, Captain Edward Boxer, and served on board nine months,
Captain Butcher's ship is pierced for eight broadside guns and four
swivels or long-toms. Her magazine is complete, and she is fitted up
2 B
370
THE ALABAMA.
Chap. XIII, in all respects as a man-of-war, without her ammunition. She is now
chock-full of coals, and has, in addition to those in the hold, some thirty
Note.
tons on deck.
“9. One day whilst engaged in heaving up some of the machinery,
we were singing a song, as seamen generally do, when the boatswain
told us to stop that, as the ship was not a merchant-ship, but a
man-of-war.
(Signed) " ROBERT JOHN TAYLOR."
Later Affidavit received by the Board of Customs on the 25th July.
No. 9.
“I, Henry Redden, of Hook Street, Liverpool, in the County of
Lancaster, seaman, make oath and say as follows:
“1. I am a seaman and have followed the sea for fifteen years. I
have been boatswain on board both steamers and sailing vessels, and
belong to the Naval Reserve.
“2. About six weeks ago I was engaged by Captain Butcher (with
whom I have previously sailed) as boatswain on board a vessel then in
Messrs. Laird and Co.'s ship-building yard, but now lying in the
Birkenhead Float, and known by the name '290. The said Captain
Butcher offered me 101. per month, and said an agreement should be
signed when we got outside. He told me that we should have plenty
of money when we got home, as we were going to the Southern States
on a speculation to try and get some.
“3. The crew now on board the said vessel consists of about forty
men, but I believe that she will take to sea about 100 men, all told.
It is generally understood on board that she will clear for Nassau, but
not make that port. The said vessel has all her stores and coals on
board ready for sea. She is fitted in all respects as a man-of-war, to
carry six broadside guns and four pivots, but has no guns or ammuni-
tion on board as yet. The rules on board are similar to those in use
on a man-of-war, and the men are not allowed to sing as they do on a
merchantman. The call is used on board. The said vessel is of about
1,100 tons burthen.
“4. I know Captain Bullock. He has been superintending the
building of the said vessel in Messrs Laird and Co.'s yard, and is, I
believe, to take charge of the vessel when we get outside.
5. It is generally understood on board the said vessel that she
belongs to the Confederate Government.
(Signed) “ HENRY REDDEN."
CHAPTER XIV.
Complaints of the American Government and its Claims for Redress.-
Correspondence with Mr. Adams.—Despatch of Secretary Fish.-
Recapitulation of Facts. Case of the Alabama; the Question
stated:--Was there Neglect ?—Was there a Violation of Neutrality?
-Remarks on this Subject.—The Neutrality Laws of England and
America.--Proposals for the Revision of them in England; in the
United States.
On the facts related in the preceding chapter the
Government of the United States founded a long series
of representations, complaints, and demands, gradually
rising higher and higher, the nature and substance of
which will appear from the following statement. .
The first complaint of actual injury sustained by
the United States after the departure of the Alabama
was conveyed by Mr. Adams in language of great
moderation :
“The injuries to which the people of the United States are subjected
by the unfortunate delays experienced in the case of my remonstrance
against the fitting out of the gun-boat "290,' now called the Confederate
steamer Alabama, are just beginning to be reported. I last night
received intelligence from Gibraltar that this vessel has destroyed ten
whaling-ships in the course of a short time at the Azores.
“I have strong reason to believe that still other enterprises of the
same kind are in progress in the ports of Great Britain at this time:
indeed, they have attained so much notoriety as to be openly announced
in the newspapers of Liverpool and London. In view of the very strong
legal opinion which I had the honour to present to your Lordship's
consideration, it is impossible that all these things should not excite
great attention in the United States. I very much fear they will
impress the people and the Government with a belief, however un-
founded, that their just claims on the neutrality of Great Britain have
not been sufficiently estimated. The extent to which Her Majesty's
2 B 2
372
THE ALABAMA CLAIMS.
Chap. XIV. flag, and some of her ports, have been used to the end of carrying
on hostile operations, is so universally understood that I deem it
unnecessary further to dwell upon it. But in the spirit of friendliness
with which I have ever been animated towards Her Majesty's Govern-
ment, I feel it my duty to omit no opportunity of urging the manifes-
tation of its well-known energy in upholding those laws of neutrality
upon which alone the reciprocal confidence of nations can find a
permanent base."'1
To this Lord Russell replied that, “much as Her
Majesty's Government desire to prevent such occur-
rences, they are unable to go beyond the law, municipal
and international."
Mr. Adams rejoined :
“I am well aware of the fact to which your Lordship calls my
attention in the note of the 4th instant, the reception of which I have
the honour to acknowledge, that Her Majesty's Government are unable
to go beyond the law, municipal and international, in preventing
enterprises of the kind referred to. But in the representations which
I have had the honour lately to make, I beg to remind your Lordship
that I base them upon evidence which applies directly to infringements
of the municipal law itself, and not to anything beyond it.
The con-
sequence of an omission to enforce its penalties is therefore necessarily
that heretofore pointed out by eminent Counsel, to wit, that the law
is little better than a dead letter;' a result against which the Govern-
ment of the United States has serious ground of remonstrance.""3
On the 20th November, 1862, after referring to the
directions issued, as we have seen, by the British Govern-
ment for the detention of the Alabama, but issued too late,
he proceeded :
“It thus appears that Her Majesty's Government had become so
far convinced of the true nature of the enterprise in agitation at
Liverpool from the evidence which I had had the honour to submit to
your Lordship's consideration, and from other inquiry, as to have
determined on detaining the vessel. So far as this action went, it
seems to have admitted the existence of a case of violation of the laws
of neutrality in one of Her Majesty's ports of which the Government of
the United States had a right to complain. The question will then
1 Mr. Adams to Earl Russell, 30th September, 1862.
2 Earl Russell to Mr. Adams, 4th October, 1862.
3 Mr. Adams to Earl Russell, 9th October, 1862.
CORRESPONDENCE WITH MR. ADAMS.
373
remain how far the failure of the proceedings thus admitted to have Chap. XIV.
been instituted by Her Majesty's Government to prevent the departure
of this vessel affects the right of reclamation of the Government of the
United States for the grievous damage done to the property of their
citizens in permitting the escape of this lawless pirate from its
jurisdiction."
He referred to the Seventh Article of the Treaty of
19th November, 1794, between Great Britain and the
United States (Lord Grenville's Treaty) as a precedent
warranting a demand for redress in like cases, and
concluded:
“Armed by the authority of such a precedent; having done all in
my power to apprise Her Majesty's Government of the illegal enter-
prise in ample season for affecting its prevention; and being now
enabled to show the injurious consequences to innocent parties relying
upon the security of their commerce from any danger through British
sources, ensuing from the omission of Her Majesty's Government,
however little designed, to apply the proper prevention in due season,
-I have the honour to inform your Lordship of the directions which I
have received from my Government to solicit redress for the national
and private injuries already thus sustained, as well as a more effective
prevention of any repetition of such lawless and injurious proceedings
in Her Majesty's ports hereafter."
Lord Russell, in reply, disputing the application
which Mr. Adams had made of the Treaty of 1791,
dwelt upon his admission that the Alabama had sailed,
not only without the direct authority or indirect per-
mission of the Government, but in opposition to the
municipal law, and in spite of earnest endeavours made
to enforce it:
“It is not denied that strict orders were given for her detention as
soon as it appeared to the legal advisers of the Crown that the evidence
might be sufficient to warrant them in advising such a course; and that
the Alabama contrived to evade the execution of those orders. Her
Majesty's Government cannot, therefore, admit that they are under any
obligation whatever to make compensation to United States' citizens
on account of the proceedings of that vessel.
“As regards your demand for a more effective prevention, for the
future, of the fitting out of such vessels in British ports, I have the
honour to inform you that Her Majesty's Government, after consul-
tation with the Law Officers of the Crown, are of opinion that certain
374
THE ALABAMA CLAIMS.
Chap. XIV. 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 com-
municate 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
Mr. Adams, in answer, stated afresh what he con-
ceived to be the question at issue :-
“ It is the admitted fact of a violation of a Statute of this kingdom
intended to prevent ill-disposed persons from involving it in difficulty
by committing wanton and injurious assaults upon foreign nations with
which it is at peace, of which Her Majesty's Ministers are invited by a
party injured to take cognizance, of which they do take cognizance so
far as to prepare measures of prevention, but which, by reason of
circumstances wholly within their own control, they do not prevent in
season to save the justly complaining party from serious injury. On
the substantial points of the case little room seems left open for discus-
sion. The omission to act in season is not denied; the injury committed
on an innocent party is beyond dispute. If in these particulars I shall
be found to be correct, then I respectfully submit it to your Lordship
whether it does not legitimately follow that such a party has a right to
complain and to ask redress. And in this sense it matters little how
that omission may have occurred, whether by intentional neglect or by
accidental delays having no reference to the merits of the question; the
injury done to the innocent party giving a timely notice remains the
same, and those who permitted it remain equally responsible.”2
In February 1863 Lord Russell had a conversation
with Mr. Adams, in the course of which the latter said
that, on the question whether the law respecting the
equipment of vessels for hostile purposes might be
improved, his Government was ready to listen to any
proposition which the British Government had to make,
1 Earl Russell to Mr. Adams, 19th December, 1862.
2 Mr. Adams to Earl Russell, 30th December, 1862.
CORRESPONDENCE WITH MR. ADAMS.
375
but that they did not see how their own law on the Chap. XIV.
subject could be improved. “I said,” writes Lord
Russell in reporting the conversation to Lord Lyons,
“ that the Cabinet had come to a similar conclusion, so
that no further proceedings need be taken at present on
this subject.”] Reverting to this part of the question at
a subsequent interview, Mr. Adams observed that the
law of Great Britain was either sufficient or insufficient
for the purposes of neutrality. If sufficient, let the
Government enforce it; if insufficient, let the Govern-
ment apply to Parliament to amend it. “I said,”
reports Lord Russell, “ that the Cabinet were of opinion
that the law was sufficient, but that legal evidence could
not always be procured. That the British Government
had done everything in its power to execute the law.
But I admitted that the cases of the Alabama and the
Oreto were a scandal, and in some degree a reproach, to
our laws."
On this part of the question the discussion went no
further.
On the 23rd October, 1863, the American Minister
wrote as follows:
“My Lord,
“ It may be within your recollection that in the note of the 17th of
September which I had the honour to address to you in reply to yours
of the 14th of the same month, respecting the claim for the destruction
of the ship Nora, and other claims of the same kind, which I had been
instructed to make, I expressed myself desirous to defer to your
wishes that they should not be further pressed on the attention of
Her Majesty's Government, so far as to be willing to refer the question
of the withdrawal of my existing instructions back for the consideration
of my Government. I have now the honour to inform your Lordship
of the result of that application.
“ After a careful re-survey of all the facts connected with the outfit
and later proceedings of the gun-boat ‘No. 290,' now known as the war-
steamer Alabama, I regret to report to you that the Government of
the United States finds itself wholly unable to abandon the position
heretofore taken on that subject."
1 Earl Russell to Lord Lyons, 14th February, 1863.
2 The same to the same, 27th March, 1863.
376
THE ALABAMA CLAIMS.
Chap. XIV.
After recapitulating some of the circumstances of the
case, he proceeded :-
“From a review of these circumstances essential to a right judg.
ment of the question, the Government of the United States understand
that the purpose of the building, armament, equipment and expedition
of this vessel, carried with it one single criminal intent running equally
through all the portions of this preparation, fully complete and
executed when the gun-boat ‘No. 290' assumed the name of the
Alabama;- and that this intent brought the whole transaction, in
all its several parts here recited, within the lawful jurisdiction of Great
Britain, where the main portions of the crime were planned and executed.
Furthermore, the United States are compelled to assume that they
gave due and sufficient previous notice to Her Majesty's Government
that this criminal enterprise was begun and in regular process of
execution, through the agencies herein described, in one of Her
Majesty's ports. They cannot resist the conclusion that the Govern-
ment was then bound by Treaty obligations and by the law of nations
to prevent the execution of it. Had it acted with the promptness and
energy required by the emergency, they cannot but feel assured the
whole scheme must have been frustrated. The United States are ready
to admit that it did act so far as to acknowledge the propriety of
detaining this vessel for the reasons assigned, but they are constrained
to object that valuable time was lost in delays, and that the effort when
attempted was too soon abandoned. They cannot consider the justice
of their claim for reparation liable to be affected by any circumstances
connected with those mere forms of proceeding on the part of Great
Britain which are exclusively within her own control.
“Upon these principles of law and these assumptions of fact resting
upon the evidence in the case, I am instructed to
say
that
my
Govern-
ment must continue to insist that Great Britain has made itself
responsible for the damages which the peaceful, law-abiding citizens of
the United States sustain by the depredations of the vessel called the
Alabama.
“In repeating this conclusion, however, it is not to be understood
that the United States incline to act dogmatically, or in a spirit of
litigation. They desire to maintain amity as well as peace. They fully
comprehend how unavoidably reciprocal grievances must spring up
from the divergence in the policy of the two countries in regard to the
present insurrection. They cannot but appreciate the difficulties under
which Her Majesty's Government is labouring from the pressure of
interests and combinations of British subjects apparently bent upon
compromising by their unlawful acts the neutrality which Her Majesty
has proclaimed and desires to preserve, even to the extent of involving
the two nations in the horrors of a maritime war. For these reasons I
am instructed to say, that they frankly confess themselves unwilling to
regard the present hour as the most favourable to a calm and candid
CORRESPONDENCE WITH MR. ADAMS.
377
examination by either party of the facts or the principles involved in Chap. XIV.
cases like the one now in question. Though indulging a firm conviction
of the correctness of their position in regard to this and other claims,
they declare themselves disposed, at all times, hereafter as well as now,
to consider in the fullest manner all the evidence and the arguments
which Her Majesty's Government may incline to proffer in refutation of
it; and in the case of an impossibility to arrive at any common conclusion
I am directed to say, there is no fair and equitable form of Conventional
arbitrament or reference to which they will not be willing to submit.
“Entertaining these views, I crave permission to apprise your
Lordship that I have received directions to continue to present to your
notice claims of the character heretofore advanced, whenever they
arise, and to furnish the evidence on which they rest, as is customary
in such cases, in order to guard against possible ultimate failure of
justice from the absence of it.
'In accordance with these instructions I now do myself the honour
to transmit the papers accompanying the cases heretofore withheld,
pending the reception of later information.
“I pray, &c.
(Signied) " CHARLES FRANCIS ADAMS."
This letter conveys the first proposal of arbitration
made on the part of the United States to the British
Government. It was offered as a suggestion, to be taken
into consideration at a further period. It was considered
accordingly, and declined in August 1865, on the ground
that there were but two questions which could be made
the subject of a reference: first, whether the British
Government bad acted with due diligence; secondly,
whether its legal advisers had correctly understood their
own municipal law; and that neither of these could
properly. be submitted to a foreign arbiter, still less
to a joint commission. That this view was afterwards
modified, will be seen when I have occasion to speak of
the later negotiations of 1867.
These extracts from a large mass of despatches are
enough to show the ground taken by the Government of
the United States during the earlier stages of the corre-
spondence. In respect of the Shenandoah it was alleged
that, although the British Government could not reason-
ably be held responsible for her original equipment,
it had fixed that responsibility on the nation by after-
378
THE ALABAMA CLAIMS.
Chap. XIV. wards suffering her to be received in colonial ports. The
losses sustained from the Shenandoah were accordingly
added to the list of claims.
The form which these claims finally assumed when
revived by President Grant's Government in the autumn
of 1869 will appear in the following extracts from a
despatch addressed by the Secretary of State to the
American Minister in London, and communicated to the
Earl of Clarendon :
As time went on, as the insurrection from political came at length
to be military, as the sectional controversy in the United States pro-
ceeded to exhibit itself in the organization of great armies and fleets,
and in the prosecution of hostilities on a scale of gigantic magnitude,
then it was that the spirit of the Queen's Proclamation showed itself
in the event, seeing that, in virtue of the Proclamation, maritime enter-
prises in the ports of Great Britain, which would otherwise have been
piratical, were rendered lawful, and thus Great Britain became, and to
the end continued to be, the arsenal, the navy-yard, and the treasury
of the insurgent Confederacy. A spectacle was thus presented without
precedent or parallel in the history of civilized nations. Great Britain,
although the professed friend of the United States, yet, in time of
avowed international peace, permitted armed cruisers to be fitted out
and harboured and equipped in her ports, to cruise against the merchant-
ships of the United States, and to burn and destroy them, until our
maritime commerce was swept from the ocean. Our merchant-vessels
were destroyed piratically by captors who had no ports of their own in
which to refit or to condemn prize, and whose only nationality was the
quarter-deck of their ships, built, despatched to sea, and not seldom in
name, still professedly owned in Great Britain.
*
*
“ The Queen's Ministers excused themselves by alleged defects in
the municipal law of the country. Learned Counsel either advised that
the wrongs committed did not constitute violations of the municipal
law, or else gave sanction to artful devices of deceit to cover up such
violations of law. And, strange to say, the Courts of England or of
Scotland up to the very highest were occupied month after month
with judicial niceties and technicalities of statute construction in this
respect, while the Queen's Government itself, including the omnipotent
Parliament, which might have settled these questions in an hour by
appropriate legislation, sat with folded arms as if unmindful of its
international obligations, and suffered ship after ship to be constructed
in its ports to wage war on the United States.
**
*
“When the defects of existing laws of Parliament had become
RECENT CORRESPONDENCE.
379
apparent, the Government of the United States earnestly entreated the Chap. XIV.
Queen's Ministers to provide the required remedy, as it would have
been easy to do by a proper Act of Parliament; but this the Queen's
Government refused.
***
***
*
“On the present occasion the Queen's Ministers seem to have com-
mitted the error of assuming that they needed not to look beyond their
own local law, enacted for their own domestic convenience, and might,
under cover of the deficiencies of that law, disregard their sovereign
duties towards another Sovereign Power.
“Nor was it, in our judgment, any adequate excuse for the Queen's
Ministers to profess extreme tenderness of private rights, or apprehen-
sion of actions for damages, in case of any attempt to arrest the many
ships which, either in England or Scotland, were, with ostentatious
publicity, being constructed to cruise against the United States.
*
“But although such acts of violation of law were frequent in Great
Britain, and susceptible of complete technical proof, notorious, flaunted
directly in the face of the world, varnished over, if at all, with the
shallowest pretexts of deception, yet no efficient step appears to have been
taken by the British Government to enforce the execution of its municipal
laws or to vindicate the majesty of its outraged sovereign power.
66 And the Government of the United States cannot believe it would
conceive itself wanting in respect for Great Britain to impute that the
Queen's Ministers are so much hampered by judicial difficulties that
the local administration is thus reduced to such a state of legal
impotency as to deprive the Government of capacity to uphold its
sovereignty against local wrong-doers, or its neutrality as regards
other Sovereign Powers.
“If, indeed, it were so, the causes of reclamation on the part of the
United States would only be the more positive and sure; for the law of
nations assumes that each Government is capable of discharging its inter-
national obligations, and, perchance, if it be not, then the absence of such
capability is itself a specific ground of responsibility for consequences.
“But the Queen's Government would not be content to admit, nor
will the Government of the United States presume to impute to it,
such political organization of the British Empire as to imply any want
of legal ability on its part to discharge, in the amplest manner, all its
duties of sovereignty and amity towards other Powers.
"It remains only in this relation to refer to one other point,
namely, the question of negligence-neglect on the part of officers of
the British Government, whether superior or subordinate, to detain
Confederate cruisers, and especially the Alabama, the most successful
of the depredators on the commerce of the United States.
On this point the President conceives that little needs now to be
said, for various cogent reasons. First, the matter has been exhaus-
tively discussed already by this Department, or by the successive
American Ministers. Then, if the question of negligence be discussed
---
380
THE ALABAMA CLAIMS.
و
Chap. XIV. with frankness, it must be treated in this instance as a case of extreme
negligence, which Sir William Jones has taught us to regard as
equivalent or approximate to evil intention. The question of negli-
gence, therefore, cannot be presented without danger of thought or
language disrespectful towards the Queen's Ministers; and the Presi-
dent, while purposing, of course, as his sense of daty requires, to sustain
the rights of the United States in all their utmost amplitude, yet intends
to speak and act in relation to Great Britain in the same spirit of inter-
national respect which he expects of her in relation to the United
States;
and he is sincerely desirous that all discussion between
the Governments may be so conducted as not only to prevent
any aggravation of existing differences, but to tend to such reasonable
and amicable determination as best becomes two great nations of
common origin and conscious dignity and strength.
"I assume, therefore, pretermitting detailed discussion in this
respect, that the negligence of the officers of the British Government,
in the matter of the Alabama at least, was gross and inexcusable,
and such as indisputably to devolve on that Government full responsi-
bility for all the depredations committed by her. Indeed, this conclu.
sion seems in effect to be conceded in Great Britain. At all events,
the United States conceive that the proofs of responsible negligence in
this matter are so clear that no room remains for debate on that
point; and it should be taken for granted in all future negotiations
with Great Britain."
The general effect of these proceedings may, in the
opinion of the American Government, be thus stated.
Great Britain, and Great Britain alone “founded,” on
her recognition of the revolted States as belligerents, “ a
systematic maritime war against the United States, and
this to effect the establishment of a Slave Government.
What in France, in Spain, as their subsequent conduct
showed, had been but an untimely and ill-judged act of
political manifestation, had in England, as her subse-
quent conduct showed, been a virtual act of war.”
1 Mr. Fish to Mr. Motley, 25th September, 1869. Mr. Motley read
this despatch to the Earl of Clarendon, and gave him a copy of it.
All the statements which it contained were answered in detail by
Lord Clarendon, in a paper described as Observations on Mr. Fish's
Despatch. This was sent, with a covering despatch, to Mr. Thornton,
and he was instructed to communicate it to the American Secretary
of State. Mr. Fish's despatch was afterwards laid before Congress
and published in the United States, but Lord Clarendon's answer was
not published.
The Confederate Government had viewed the conduct of Great Britain
991
DESPATCH OF MR. FISH.
381
The rhetorical colour—to use an inoffensive phrase Chap. XIV.
-thrown over the foregoing train of assertions, which
purport to be statements of fact, makes it proper to
place side by side with them a short recapitulation of
the facts as they really were :-
1. The number of ships built or purchased in British
ports which became Confederate cruisers was four. Of
these, one-the Oreto or Florida—had been seized and
put on her trial, but released by a Vice-Admiralty Court
for want of evidence.
2. The number of ships preparing for the Con-
federate service and stopped by the British Government
(other than the Florida) was four. Two of these were
iron-clads.
3. The number of ships which were made the
subject of inquiry, but as to which the American
Minister proved to have been misinformed, was ten.
4. Of the four ships which succeeded in putting to
sea not one sailed armed or equipped for war, or
in a different light. "The partiality," said Mr. Davis, " of Her Majesty's
Government in favour of our enemies has been further evinced in the
marked difference of its conduct on the subject of the purchase of supplies
by the two belligerents. The difference has been conspicuous since the
very commencement of the war. As early as the 1st of May, 1861, the
British Minister at Washington was informed by the Secretary of State
of the United States that he had sent agents to England, and that others
would go to France, to purchase arms, and this fact was communicated
to the British Foreign Office, which interposed no objection. Yet in
October of the same year Earl Russell entertained the complaint of the
United States Minister in London, that the Confederate States were
importing contraband of war from the Island of Nassau, directed
inquiry into the matter, and obtained a report from the authorities of
the island denying the allegations, which report was inclosed to
Mr. Adams, and received by him as satisfactory evidence to dissipate
* the suspicion naturally thrown upon the authorities of Nassau by that
unwarrantable act. So, too, when the Confederate Government pur-
chased in Great Britain, a neutral country (and with strict observance
both of the law of nations and the municipal law of Great Britain),
vessels which were subsequently armed and commissioned as vessels of
war, after they had been far removed from English waters, the British
Government, in violation of its own laws and in deference to the
importunate demands of the United States, made an ineffectual
-
382
THE ALABAMA CLAIMS.
Chap. XIV. carrying on board any armament whatever. Three ran
for upwards of 1,000 miles, unarmed, without an enlisted
crew, without a captain or officers, and incapable of
making the slightest resistance had they met with a
Federal cruiser. Of these three, the Alabama and
Shenandoah received their armament in Portuguese
waters. The Florida shipped some guns at an unin-
habited island in the Atlantic, but never got a crew,
fired a shot, or attempted a capture, till she had
found shelter in one of her own ports, from which she
issued four months afterwards, armed and equipped
for a cruise. The Georgia was armed while at
anchor on the coast of France. It is true that the
armament furnished to these ships was despatched to
them from different British ports, pursuant, no doubt, ,
·to a preconcerted arrangement in each case, but this
neither was nor could have been known to the British
Government. That a Government is responsible for the
prevention of acts which neither were nor could have
attempt to seize one vessel, and did actually seize and detain another
which touched at the Island of Nassau, on her way to a Confederate
port, and subjected her to an unfounded prosecution at the very time
when cargoes of munitions of war were being openly shipped from
British ports to New York to be used in warfare against us. Even now
the public journals bring intelligence that the British Government has
ordered the seizure, in a British port, of two vessels, on the suspicion
that they may have been sold to this Government, and that they may
be hereafter armed and equipped in our service, while British subjects
are engaged in Ireland by tens of thousands to proceed to the United
States for warfare against the Confederacy, in defiance both of the law
of nations and of the express terms of the British Statutes, and are
transported in British ships, without an effort at concealment, to the
ports of the United States, there to be armed with rifles imported from
Great Britain, and to be employed against our people in a war for con-
quest. No Royal prerogative is invoked, no executive interference is
interposed against this flagrant breach of municipal and international
law on the part of our enemies, while strained constructions are placed
on existing Statutes, new enactments proposed, and questionable
expedients devised, for precluding the possibility of purchase by this
Government of vessels that are useless for belligerent purposes, unless
hereafter armed and equipped outside of the neutral jurisdiction of
Great Britain."-Message of President Davis, December, 1863.
FACTS RECAPITULATED.
383
been within its knowledge, is a thesis which few Govern- Chap. XIV.
ments will be willing to maintain.
5. After the case of the Alabama no vessel, as to
which any representation had been made by Mr. Adams
or any circumstance of suspicion existed, succeeded in
quitting a British port. Of the two which sailed
during that period, one was a merchantman, which
never was' fitted as a ship of war, here or elsewhere,
though she took on board guns, men, and ammunition,
off Madeira. It may be questioned whether any law,
however stringent, or any exertion of vigilance, could have
prevented the sailing of the Georgia and Shenandoah.
6. Each of these ships was commanded and officered
by Americans holding commissions in the Confederate
navy, and was the property of the persons acting as the
Government of the Confederacy, by whose agents she
had been bought and paid for. It is possible—though
there is no proof of this——that in one case or more the
name of the nominal British owner may have remained
on the register; but this fictitious ownership would not
give British nationality to the ship, would not have
protected her from capture as Confederate property,
whilst unarmed and uncommissioned, and could fasten
no responsibility on the British Government. None of
the men serving in them appear to have been enlisted
1 It is with reference to this period, during which occurred the
seizure of the Alexandra, the iron-clads, and the Pampero, that Mr. Fish
says: “ The Queen's Government sat with folded arms, as if unmindful
of its international obligations, and suffered ship after ship to be con-
structed in its ports to wage war on the United States," whilst, “strange
to say,” the questions which had arisen were argued in courts of law.
Mr. Fish appears to be quite astonished that people should have
patience to argue and consider a question of public and private right
carefully and thoroughly in a court of justice. Parliament, says he,
could have settled it in a trice, and could, I presume (for the observa-
tion goes that length), have condemned the Alexandra--which re-
mained all the while under seizure-without a trial. The point of his
argument, however, is that the British Government did nothing,
sheltering itself under the uncertainty of the law-an assertion which
is so far from being true that it is directly the reverse of the truth.
384
THE ALABAMA CLAIMS.
Chap. XIV. in this country. Some, doubtless, of those who were
carried to sea in them were not unaware of the service
in which they would be asked to engage; but, setting
these aside, the evidence conclusively shows that the
Confederate agents did exactly what we should have
expected them to do: they shipped all the men they
could pick up in the streets of Liverpool or elsewhere,
hiring them for fictitious voyages, and trusting to
secure them, when once fairly afloat, by working on
the thoughtless, adventurous character of the seaman,
and by the offer of high pay and bounty. In the case
of the Alabama this manoeuvre was very successful, since
out of ninety men seventy took service; but we have
seen how completely it was disappointed in those of the
Shenandoah and Florida.
This plain statement disposes of the allegation,
which is substantially urged by the Government of the
United States, that the course of the British Govern-
ment in respect of these enterprises was one of passive
connivance, or of systematic and persistent inaction.
It shows that, during the time when this Government
is accused of having remained passive, ship after ship
was detained and seized by process of law, where
evidence could be obtained, and, where this was impos-
sible, at the cost of the national treasury. It shows
that from the summer of 1862 to the end of the war
no vessel on which suspicion had fallen, none with
anything warlike in construction or equipment, was
suffered to leave a British port, and that the two which
sailed during that period and afterwards cruised under
the Confederate flag had escaped the vigilance of the
Minister and Consuls of the United States, as they had
escaped that of the British Government and its officers.
The solitary case of any real importance is that of
the Alabama. On the degree of importance which may
fairly or properly be assigned to a particular case, the
general course of the Government having been such
as we have seen it was, I shall say nothing. The case
THE QUESTION STATED.
385
itself, however, raises some questions of principle, which Chap. XIV.
are not undeserving of attention.
It was known to the British Government, long
before she sailed, that this vessel was apparently
designed for war; and there was strong reason to sus-
pect that she was intended for the Confederate service.
Evidence on this latter point, which might have satisfied
a jury, was in the possession of the Commissioners of
Customs at the earliest on the 22nd July, at latest on
the 23rd. As to the destination chosen for the ship and
the scheme for sending her officers and armament to
meet her, these were matters which neither the Govern-
ment nor its officers knew or had any means of knowing.
They are therefore to be rejected from consideration in
judging of the acts or omissions of the Government.
In forming such a judgment, we are bound to regard
the case exactly as we should have regarded it if the
Alabama had gone to arm herself, not at Terceira, but
at Savannah or Mobile.
The question whether there has been an inter-
national wrong resolves itself into two, which should
be kept distinct :--
1. Is it among the international duties of a neutral
Government to prevent the despatch from its ports of
vessels apparently designed for war, but unarmed, which
it has reason to believe constructed or intended for the
service of a belligerent?
2. Did the British Government neglect that duty ?
If there was no such international duty, it is
immaterial whether the Government was or was not
hesitating, dilatory, or remiss in enforcing English law.
There can be no international injury where there is no
violation of an international duty. To the question,
whether there is such an obligation, I shall revert
presently. I desire first to say a few words on the
question of neglect.
Injurious remissness or injurious inattention on the
2 C
386
THE ALABAMA CLAIMS.
care.
Chap. XIV. part of a Government is not merely something less than
the greatest possible promptitude or the greatest possible
If it were, what Government could ever hope to
be free from accusations and complaints? To determine,
however roughly, by general rules, the degree of care
which it is fair to require in particular cases, has always
been a difficulty with lawyers ; in the great mass of
cases the real (though not perhaps the avowed) standard
of decision is found in the sentiment of justice and
common sense, guided by a consideration of the circum-
stances. Difficulties of a peculiar kind arise when the
party charged is a sovereign Government, and the
substance of the charge is negligence or remissness in
the exercise of any of the powers of sovereignty. These
difficulties do not spring only from the facts that the
control exercised by a Government over its subordinates,
through all the grades of a great administrative service,
must always be practically imperfect, and that Govern-
ments differ infinitely in respect of their power, the
1 “Le dommage qui a eu lieu,” says Ortolan, speaking of the
liability under municipal laws, for injuries, intentional and unintentional,
"peut être le résultat soit d'actions, soit d'omissions préjudiciables :
force impulsive dans un cas, simple inaction dans l'autre. Or l'on.
conçoit que si l'homme est généralement tenu de s'abstenir de toute
action nuisible à autrui, il n'est pas également obligé de mettre son
activité au service d'autrui, de veiller pour les intérêts d'un autre, et
de répondre en ce point des résultats de son inaction. Mais des con-
trats, ou certaines relations particulières, peuvent venir lui imposer
même cette dernière obligation, lui en faire un devoir; de telle sorte
qu'y manquer soit pour lui une faute.”-Ortolan, Explication Historique
des Instituts, vol. iii, p. 355.
It must be borne in mind that the international duty now in question,
the limits of which are, as we shall see, open to dispute, does not flow
from the theory that Governments are responsible for the wrongful acts
of their subjects, or of persons within their dominions. They are not
so responsible in general, as long as they allow the injured party free
access to their courts of justice ; unless the acts complained of were
done in execution of the orders of the Government, or afterwards
adopted by it as its own. It is a practical corollary of the exclusive
control which all sovereign Governments claim over
their own
territory—a claim which might otherwise be incompatible with the
security of their neighbours.
.
QUESTION OF NEGLIGENCE.
387
66
machinery at their command, their habitual modes of Chap. XIV.
acting, and their subjection to opinion or to law; they
are due also to the consideration that the first respon-
sibility of every Government is to its own people, and
that to hold any Government strictly accountable to
others for its acts and omissions, for the orders it gives
to its officers, and the manner in which its powers are
exercised, would be inexpedient and intolerable in
practice. Hence it has not been usual, in international
questions, to scrutinize narrowly the circumstances from
which negligence might be inferred; and complaints of
actual negligence have been urged but rarely, and with
a view rather to security for the future than to reparation
for the past. These considerations are, indeed, plain and
obvious, and the Government of the United States is
probably not insensible to them, since it is at pains to
insist that the neglect with which it charges the Govern-
ment of Great Britain was “gross,” “inexcusable,"
and “extreme, equivalent or approximate to evil
intention."
It must be clear, I think, to any one who has read
the preceding chapter that the delay—for there was
delay-in ordering the seizure of the Alabama was
really due, in the first place, to uncertainty as to the
law, and, in the second place, to doubts about the
sufficiency of the evidence. The Revenue Department
appears to have acted on the opinion held by its legal
advisers, that it was not the duty, nor in the power, of
the Executive to seize a vessel which had received no
armament, although apparently constructed for war.
The Law Officers thought otherwise. They reported
that the Alabama was liable to seizure for a breach of
the Foreign Enlistment Act, though no arms had been
put on board. But was the question free from doubt ?
On the contrary it was so doubtful that it divided at
the time some of the most considerable lawyers in
England, and afterwards divided the Judges of the
2 c 2
388
THE ALABAMA CLAIMS.
Chap. XIV. Court of Exchequer.1
Exchequer. As to the sufficiency of the
evidence opinions may fairly differ, but this was certainly
a question on which the Government had a right to be
guided by that of its legal advisers, who were not only
1 The subjoined Opinion was afterwards given, on a full considera-
tion of all the facts, by the eminent persons whose names are attached
to it, and who rank among the highest English authorities :-
“I am of opinion that Messrs. Laird had a right to build the ship
which has since been called the Alabama in the manner they did, and
that they have committed no offence against either the common law or
the Foreign Enlistment Act with reference to that ship. I am of
opinion that the simple building of a ship, even although the ship be of
a kind apparently adapted for warlike purposes, and delivering such
ship to a purchaser in an English port, even although the purchaser is
suspected or known to be the agent of a foreign belligerent Power,
does not constitute an offence against the Foreign Enlistment Act;
59 Geo. III, cap. 60, sec. 7, on the part of the builder, unless the builder
makes himself a party to the equipping of the vessel for warlike
purposes. The Alabama, indeed, appears to me to have been 'equipped
at the Azores, and not in England at all.
66 GEORGE MELLISH,
“3, Harcourt-buildings, Feb. 6, 1863."
“We entirely concur in the opinions given by Mr. Mellish on the
statements laid before him, and our opinion would not be altered if the
facts were that Messrs. Laird Brothers knew they were building the
Alabama for an agent of the Confederate Government.
“H. M. CAIRNS,
“ April 17, 1863."
“ JAMES KEMPLAY.
The builders of the ship, in a statement which they subsequently
published in their own vindication (Times, 27th May, 1869), wrote as
follows:
“ The contract to build the Alabama was entered into by us in
the usual course of our business as a mere commercial transaction, and
at a price moderate for vessels of her class, the firm which we now
represent having for upwards of thirty years been in the habit of
building vessels of war for our own Government, for foreign Govern-
ments direct, and for the agents of foreign Governments.
“We did not supply, or engage to supply, the Alabama, either
before or after she left the Mersey, with any part of her armament,
provisions, coals, or warlike stores of any description, or engage any
men to serve on board her, or to join her after she left the port.
“We merely completed a contract to build and deliver an unarmed
and unequipped ship in the port of Liverpool.
We were never informed by the purchaser of the Alabama of the
arrangements he had made for manning, arming, equipping, and com-
missioning that vessel at a foreign port, nor had we any idea of her
QUESTION OF NEGLIGENCE.
389
advocates, but advocates standing at the head of their Öhap. XIV.
profession. It is also possible - it certainly appears
more than possible, though we do not know the
circumstances—that the report of the Law Officers
might, with greater despatch, have been obtained a
day or two sooner than it actually was. But this would
having gone to the Azores until that fact was generally known by
the public.
" It has been stated that in the conduct of our business in these
transactions we sought our own gain irrespective of municipal or
international law, thereby endangering the relations between this
country and America. The opinions of the eminent statesmen and
lawyers we have quoted show the building of Alabama to have been
in accordance with the existing laws of England, and in 1861, when we
undertook the contract, and for long after, there was nothing to show
that our doing so was at variance with the opinions of our own
countrymen or with the practice of foreign nations.
“But in 1864 other questions had arisen as to the rights of neutrals
and belligerents, which rendered it apparent that a strict interpretation
of the existing law would not satisfy those whose interests were affected,
and in that year we declined to accept an order to build a large iron-
clad vessel for an agent of the Confederate Government, although one
condition of the contract was to have been that the ship should not be
delivered until the conclusion of the war. The cost, however, was to be
paid to us by instalments, in such a way and so secured as to make it for
us a perfectly safe and profitable commercial transaction, and we were
advised by the best authority that there was nothing in our municipal
or international law to prevent us taking the contract. Our private
gain here was willingly sacrificed, because we felt that, from the com-
plications that had arisen in reference to neutral and belligerent rights,
a strict interpretation of the law might tend to aggravate the then
existing differences between this country and the American Govern-
ment, and had there been the same feeling on the subject in 1861 the
Alabama would not have been built by us.”
1 Mr. Adams, in a despatch to Mr. Seward (1st August, 1862),
mentions an interview in which Lord Russell “remarked that a delay
in determining upon the case had most unexpectedly been caused by
the sudden development of a malady of the Queen's Advocate,
Sir J. D. Harding, totally incapacitating him for the transaction of
business.” There is no other mention of this, I believe, in the printed
correspondence; but it is well known that Sir J. Harding, to whom,
as Queen's Advocate, the case would, according to what was then the
established practice, be sent in the first instance, was at that time
suffering from an attack of mental disease, from which he never quite
recovered, and that this may have caused some delay in the trans-
mission of the papers.
390
THE ALABAMA CLAIMS.
Chap. XIV. not be a sufficient ground for charging a Government
with negligence so gross and palpable as to amount to a
great international wrong. It cannot be assumed, nor is it
very probable, that any orders sent after the ship left the
Mersey would have been effectual in stopping her, even
if it had been known, otherwise than by vague report,
where she was likely to be found.
Whether upon these facts, and assuming that it was
an international duty (the circumstances being known)
to prevent the sailing of the Alabama, there is fair
ground for charging the British Government with gross
and injurious negligence, is a question on which perhaps
neither an Englishman nor an American has a right to
place implicit confidence in his own judgment. The
American Government holds it “ so clear that no room
remains for debate," and ought to be always" taken for
granted” hereafter. I have not the same confidence in
my own opinion, but I know not why I should refrain
from saying that the charge appears to me, on the
contrary, rash and unreasonable.
On the supposed international duty the remarks
which I have to make may be conveniently thrown into
the form of distinct propositions:
1. Neutrality is the condition of a Power which is at
peace with two or more Powers at war with one another;
or, more exactly, it is the relation which the former
holds to the latter. The Power which continues to be
at peace is neutrarum partium, or neutral. The general
consent of nations, evidenced by their practice—in other
words, international law-has traced out, roughly and
imperfectly, but with a gradual approach to precision,
the rules of conduct which a neutral must pursue if he
would not forfeit the character of a neutral for that of a
belligerent. Hence spring what are called the duties or
obligations of neutrality.
2. No precise theoretical definition of these obliga-
tions is possible. The rules of international law on this
subject are really an endeavour, more or less successful,
.
NEUTRAL DUTIES.
391
to accommodate, in a manner conformable to justice and Chap. XIV.
general convenience, the necessities of war and the
interests of peace. So far as they go, they must be
taken as the accepted standard of right and wrong in
this matter. If these fail, as they may, to furnish a
principle of decision applicable to a particular case, we
are left to apply such deductions as may be drawn by
fair reasoning from the relation of neutrality itself.
3. It has not hitherto been judged reasonable or
expedient that neutral Governments should be held
bound to restrain their subjects from trafficking with
belligerents in munitions of war, or from eluding
blockades.' The usage of nations leaves the belligerent
free to take advantage of these enterprizes so far as they
serve his turn, and to repress them as well as he can so
far as they assist his enemy, arming him for this purpose,
at the expense of the neutral, with two important powers,
the power of visit and search on the high seas and
that of capture and condemnation. The circumstances
of a particular war may render such adventures very
difficult, or very easy—exceptionally serviceable to one
belligerent, peculiarly troublesome to another; but it does
not on any of these accounts become the duty of the
neutral Sovereign to stop them, nor is he chargeable
with unfriendliness or negligence for not attempting to
do so.
4. To the use of neutral territory as a base or point
of departure for hostile expeditions by land or sea, other
considerations apply. The injury here is direct and
immediate; and it is one which may ordinarily be
prevented, without minute or oppressive interference,
by the use of those measures of police which are at the
command of all civilized Governments. Such measures
a Sovereign who claims to remain neutral is bound to
employ. It is a duty, indeed, which does not arise
for the first time during war, nor out of the peculiar
relation of neutrality; and, when we class it among
1
392
THE ALABAMA CLAIMS.
:
Chap. XIV. neutral obligations, we mean that war does not annul or
suspend it, and that it adapts itself to the new state of
circumstances which war creates. Neglect, or the wilful
omission without reasonable excuse, to employ these means
is a just ground of complaint, and, if persisted in after
suitable remonstrance, may become a just cause of war.
5. To constitute an expedition by sea, these things
are necessary >
A ship or ships capable of being used for war;
An armament, greater or less ;
A present intention that the ship and armament shall
be used for war.
Till these are combined, there can be no such thing
as a hostile expedition. Uncombined, they are the
materials or separate elements of an expedition.
6. The violation of neutrality is complete at and not
before the time when the ship leaves the protection of
neutral waters. Acts done before that time may be
completed offences against the municipal law of the
neutral State, but they are preparations only for a viola-
tion of the law of nations, which, should the ship sail
disarmed, or never sail during the war, would not
be committed at all. Acts done afterwards, out of
the control and not under the orders of the neutral
Government, cannot fasten a responsibility on that
Government, though they may aggravate the weight
of a responsibility previously incurred.
7. A hostile intention is commonly to be presumed,
and conclusively presumed, where a ship, equipped and
1 There may be cases in which a neutral Government fails to fulfil
its obligations from no want of care or of honest intention, but out of
sheer feebleness. Such cases may well be imagined, and have in fact
occurred. It would certainly be oppressive and unreasonable, in a
high degree, to urge a claim for compensation on a neutral whose only
fault has been inability to offer effectual resistance to overwhelming
force. But it must be added that a State which declares itself too
weak to discharge ordinary neutral obligations, may well be deemed
to have renounced its claim to ordinary neutral rights.
NEUTRAL DUTIES.
393
armed for war, sails under the orders or control of a Chap. XIV.
belligerent Government. Where, on the other hand, she
is bona fide neutral property, and under the control of
her neutral owner, such a presumption may be raised
by circumstances (as by destination for a belligerent
port), but can never be conclusive.
That the duty of the neutral is at least as extensive
as this, is admitted on all hands. But it has lately been
contended that it goes much further. I cannot state
precisely, since I do not clearly understand, how far it is
proposed to carry the extension of the rule. But I will
state it as well as I can.
It is affirmed to be not necessary, in order to consti-
tute a violation of neutrality for which the neutral
nation is responsible, that the ship should be capable of
engaging in hostilities when she leaves the protection of
neutral waters, or that she should have received any
armament at all. It is enough if she be apparently
designed for war-perhaps I ought to say, if she be
suitable or serviceable for war - provided there be
evidence to prove, or reasonable ground to suspect,
a hostile intention. At any rate, this is so where
she is built, or built and fitted for sea, in the neutral
port, with an intention or understanding that she shall be
employed in hostilities, or under a contract with a person
who intends so to employ her. Any person working
under such a contract works with an intent which
is (at least constructively) hostile; and the intent,
coupled with any work that fits the ship for the
purpose,
constitutes the violation of neutrality. By writers who
insist on this, or at any rate by some of them, it is at the
same time maintained that a ship built for war, fully
armed for war, equipped and provisioned for sea, may be
produced as an article of commerce, and either sold to a
belligerent in a neutral port, or sent abroad to a belligerent
port for sale, without any violation of neutrality, provided
she were not built or equipped to order or in pursu-
ance of an understanding with the belligerent purchaser.
394
THE ALABAMA CLAIMS.
Chap. XIV. Again, where ship and armament are sent to meet
one another at a place out of the neutral territory,
in execution of a preconcerted plan, the two acts, it is
said, are to be considered as parts of one transaction,
which the neutral Sovereign is bound to prevent, and
for the non-prevention of which he is responsible.
“The intent,” says an able writer, “ covers all cases, and
furnishes the test. It must be immaterial where the
combination is to take place, whether here or elsewhere,
if the acts done in our territory—whether acts of build-
ing, fitting, arming, or of procuring materials for those
acts—be done as part of a plan by which a vessel is to be
sent out with intent that she shall be employed to
cruise.” 1
The question, it will be here observed, is not whether
the views which I have endeavoured to express would
be a useful extension of a settled and accepted rule; but
whether they are a fair and just interpretation of the
rule as it has hitherto existed, or legitimate deductions
from it, or legitimate deductions from the general prin-
ciples of neutrality in a case where there is no accepted
rule. It is necessary to contend that, as interpretations
or deductions, they are so plain and certain that a
Government which has not acted on them, or has even
hesitated at first to act on them, and that in a case
where the evidence of a hostile intention did not go
beyond a strong probability, is responsible for an injury,
which it is under an obligation to redress. I think that,
as interpretations or deductions, they are not fair and
legitimate; and that opinions not fortified by any
settled practice, on which competent authorities are
notoriously at variance, cannot be regarded, in an inter-
national controversy, as, plain and certain. In truth,
they have never even been stated with any approach to
precision, and it remains to be seen whether they are
capable of being so stated.
1 Dana's Wheaton, p. 563, Note.
NEUTRAL DUTIES.
395
If a distinction is to be made between vessels Chap. XIV.
serviceable for warlike use and other vessels, where,
it may be asked, are we to fix the line? Of the
Confederate cruisers during the late war not one-
not even the Alabama herself—was designed to fight,
unless in self-defence, and every one (with the
exception of the Alabama and Florida, which were
both sunk) had either been originally converted
from a merchantman, yacht, or passenger-ship, into
a cruiser, or was finally converted from a cruiser into
a merchantman. The capacity for stowage, arrange-
ment of the internal space, height and strength of the
bulwarks, solidity of the upper works, width of the
hatches, size and character of the spars—these charac-
teristics, and such as these, whilst they will enable a
practised eye to discern whether a ship is meant for war
or for trade, will not serve to discriminate vessels capable
of being used for the one from those capable only of
being used for the other. Any stout, speedy ship may,
with the help of a little carpenter's work, be used for
taking prizes : the Sumter, which struck terror into
American merchants and shipowners, was neither stout
nor speedy. The responsibility of the neutral Sovereign
would, therefore, extend to any ship, not proved in-
capable of warlike use, which he might suffer to leave
his ports, armed or unarmed, if there were probable
ground to conjecture that she was intended for the
service of a belligerent. The hostile purpose, it must
be observed, would exist in a case where the belligerent
i When the Shenandoah visited Melbourne, competent and not
friendly observers, of naval experience, who went on board of her,
could find nothing, even in her fittings, to distinguish her from a
common trading ship. She was an ordinary merchantman, they said,
armed with guns, and very much undermanned. Captain Waddell
himself, in haranguing the men at Porto Santo, had described the
capabilities of his ship with engaging candour :—"I don't intend to
fight; any one can see that this vessel was not made to fight; I intend
to run away rather than fight, unless in a very urgent case.”
396
THE ALABAMA CLAIMS.
Chap. XIV. intended to take her into one of his own ports and arm
her there, just as much as if she were to be armed at
an uninhabited island, or in the ports or on the coasts
of another neutral state, or even on the high seas; nor,
indeed, would it be possible to ascertain or discern his
intentions in this respect.
What, again, is really meant by saying that, where
the ship and the ship's armament are despatched by
preconcerted arrangement, the two transactions are to
be considered as one? Why is it more unlawful to
send abroad guns meant for a particular ship than guns
meant for any ship which may be in want of them;
and why is the fact, or the suspicion, that a cargo of
arms is despatched with a view to a particular vessel,
which is despatched from the same or a different place,
in the same or a different country, at the same or
a different time, to fasten any peculiar responsibility
on the neutral Power ? If it should appear that the
Government of the United States had bought at Halifax
a light vessel suitable for a blockader, and procured in
the same or some other British port guns to arm her
with, has the Federal Government violated the neu-
trality of Great Britain, and did Great Britain incur a
responsibility for it towards the Confederate States ?
It is evident that the importance which this theory
attributes to proof of pre-concert is false and erroneous.
A prohibition against arming ships or suffering them to
be armed in British territory is not, and cannot possibly
be, either infringed or evaded by arming them or suffer-
ing them to be armed within the dominions of Portugal
or France; and proof that both ship and armament were
obtained in England, and that they were respectively
transported to France or Portugal in order to be put
together, is proof of a fact which is nothing at all to the
purpose.
It is equally clear that proof of an intention hostile
in fact, or constructively hostile, in the builder of a ship
NEUTRAL DUTIES.
397
.
or his workmen, or in the maker or purveyor of guns or Chap. XIV.
ammunition, has really little or nothing to do with the
question whether the belligerent nation has sustained
injury from the neutral. To the United States it was of
no consequence at all what were the intentions of Laird
or Miller, or their riggers or ship-carpenters, or whether
these persons or any of them were animated by partiality
to the Confederates, or were merely working, in the
exercise of their respective trades, for what they could
get. What was of consequence to the United States
was the intention with which the vessels were despatched
from England by those who had at that time the real
control of them. This unquestionably was a matter of
the highest consequence, since on this it depended
whether they were more or less dangerous, or not
dangerous at all, to the American mercantile marine.
Nor did it matter to the United States whether the
vessels were purchased ready-made or were built to
order. If the Stonewall had been really built for the
King of Denmark, the Georgia for the China trade,
and the Florida for Messrs. Thomas of Palermo, and
respectively sold to the Confederates before they left the
Bay of Quiberon, the Clyde, and the Mersey, the injury, if
any, sustained by the United States through the despatch
of those vessels from French and British waters would
have been neither greater nor less than it was under the
actual circumstances of the case. In a word, as between
nations, the intent which impresses on an armed ship
despatched from a neutral port the character of a hostile
expedition is the intent which governs the despatch of the
ship, not the intent which presided over its preparation.
These misconceptions have arisen from a confusion,
into which it is very easy to fall, between the obligations
which a citizen owes to his State and those which one
State owes to another—between the “neutrality laws” .
(as they are called) of particular nations, and the
international law of neutrality. It has been usual with
1
.
398
THE ALABAMA CLAIMS.
Chap. XIV. text-writers and advocates, when in want of a direct
authority, to draw examples and arguments from cases
which have arisen under municipal law, and apply them
to cases arising under international law—a practice legi-
timate if the distinction between the two be kept steadily
in view, but otherwise very liable to mislead. By a
neutrality law, certain acts which individuals may com-
mit are made offences, in order that the nation may not
find itself betrayed unawares into the commission of an
injury. The law therefore regards, as all penal laws
must, primarily and chiefly, the intent or culpable
inadvertence out of which the act is done; and the
intent which it regards is that of the particular person
who is accused of doing the particular act which the
law prohibits. But in international wrongs—as in the
wrongs which men may do to one another, considered
not as meriting punishment, but as creating a right to
redress—the intent is not the thing primarily or chiefly
regarded; and in international wrongs of this particular
class the only intent and the only inadvertence which are
really material at all are, first, that hostility in the persons
who constitute or direct the expedition . which makes it
noxious instead of harmless; and, secondly, that con-
nivance or negligence on the part of the neutral Govern-
ment which makes the nation responsible for the noxious
enterprise. Further, such laws prohibit, and wisely pro-
hibit, not only actual violations of the neutrality of the
State, but acts directly leading to them, or likely, on
other grounds, to imperil the friendly relations of the
neutral with the belligerent Powers. Thus in England,
as in America, the mere attempt to fit out a belligerent
vessel, though it may be ineffectual, is an offence against
municipal law. But it would be absurd to hold that the
despatch from a neutral port of a vessel which somebody
had only made an ineffectual attempt to fit out, constituted
an international injury. In short, the neutrality laws of
particular States afford no measure of the international
NEUTRAL DUTIES.
399
duties of neutrality; nor, on the other hand, do those Chap. XIV.
duties afford a standard for the interpretation of the law.
The law may fall short of the obligation, or may go
beyond it: may fall short of it when the obligation only
partially requires the support of a law-may transcend
it when the discharge of the obligation happens, as it
well may, to be a part only of the object for which the
law was made.
Let me recapitulate. The law of nations as hitherto
understood—or, if any one prefer the phrase, the under-
standing which has existed among nations as to their
relative rights and duties—does not prohibit a neutral
from supplying to a belligerent ships, whether of com-
merce or of war, as it does not prohibit the supply of ship-
guns and ammunition, without which ships are harmless.
How a vessel so supplied was built—where she was built
by whom, for whom, or on what terms she was built;
how or on what terms she came into the possession of
the belligerentare questions which, as between nations,
are irrelevant and immaterial. Nor is the neutral
Government required to satisfy itself that she shall be
carried by the belligerent into one of his own ports, nor
to make sure that she shall not be armed with guns
exported from the neutral country for the purpose. In
all these transactions, the neutral country serves only
as a place from which engines of war are procured by a
belligerent who stands in need of them, and does not
serve as a place in or from which the war itself is
carried on.
The law of nations does, on the other hand, declare
that a country in or from which hostilities are suffered
to be carried on, forfeits its right to the character of a
neutral. It makes it therefore the duty of the neutral
Government to prevent, by the use of such means as
Governments may reasonably be expected to have at
their command, the despatch of hostile expeditions from
its shores. If at the time of its departure there be the
400
THE ALABAMA CLAIMS.
Chap. XIV. means of doing any act of war-if those means, or any
of them, have been procured and put together in the
neutral port—and if there be the intention to use them
(which may always be taken for granted when they are
in the hands of the belligerent), the neutral port may
be justly said to serve as a base or point of departure for
a hostile expedition. The only exception to this—and
it is really such—is created by the general understanding
that belligerent ships of war may be repaired and pro-
visioned in neutral ports, provided they do not add to
their armament. This is really an exception, since a
cruiser in fact refits herself for war by repairing her
engines quite as much as by replacing her gun-carriages.
But she is allowed to do the one, and not to do the
other. In the case of an unarmed ship the intention
may be present, but there are not the means.
Whether recent experience has made it desirable that
maritime nations should come to some new understand-
ing with one another on this subject, is a perfectly open
question. The results of this experience have been
sometimes overstated. It has been said to prove that it
is an easy thing for a ship leaving a neutral port,
unarmed, to receive her armament immediately, and
commence her work of destruction almost within sight
of the neutral shore. On the contrary, the foregoing
narrative tends to show that this is not easy, since it was
never done nor even attempted during the late war,
though there was every inducement to attempt it. We
have seen that three of the cruisers built or bought in
England made a long voyage without armament or crew,
1 It appears to have been sometimes assumed that by directing the
arrest of the Alabama, the British Government admitted that to
detain her was an international duty. This is not so. When advised
(rightly or wrongly) that there was an infringement of the Foreign
Enlistment Act, it was the duty of the Government to order her to be
detained, without reference to the question whether her departure
would, or would not, be a violation of the neutrality of Great
Britain.
NEUTRAL DUTIES.
401
in quest of an anchorage safe and quiet enough for so Chap. XIV.
long and troublesome an operation as the transhipment
of heavy guns and munitions of war. The fourth, which
sought the shelter of the French coast, was three nights
at work, anchored within a stone's throw of the beach.
We have seen, undoubtedly, that a vessel may be built,
equipped, armed, commissioned, and employed as a
cruiser, without having ever entered a port of the nation
under whose flag she sails. Whether it is just and
expedient for all nations that this should be prohibited,
is an open question : at present it is not prohibited. Yet
it is plain also that it is quite possible for one belligerent
to draw from a neutral in this manner succours SO
formidable, so noxious to the other, and verging so closely
on an actual infringement of the rule, that the Power
suffering from them might be forced, or exasperated,
into declaring war against the neutral in self-defence.
Some difficulty would, I fear, be found in framing any
definite rule, at once satisfactory to belligerents and not
oppressive or vexatious to neutrals; and this difficulty
would not be diminished by the tendency which has, as
I think, been lately evinced by the United States to
strain the application of international law, and divert it,
to some degree, from its proper office to uses which it is
ill-calculated to serve. For it is surely an error to treat
rules of this kind as if they had all the sharpness and
precision of municipal law, and created the same definite
obligations, with the same perfect right to have every
breach repaired by appropriate satisfaction. This is
not their use or intention, nor are they capable of being
so employed. It is expedient for the peace of the world
that Governments should take a broad and liberal view
of the duties which they owe to one another, and should
perform them with ungrudging alacrity. But this would
become impossible, should the belligerent, on his part,
insist on pressing these duties with the technical strict-
ness proper to an ordinary legal obligation. Vaguely
2 D
402
NEUTRAL DUTIES.
neutral, and requiring?
Chap. XIV: defined as they are and must be-embarrassed by many,
difficulties — encroaching apparently, and tending in
reality to encroach, on the internal sovereignty of the
and discretion—they would, if widely construed, and at
the same time rigidly enforced, become vexatious and
oppressive to all neutral nations, and an inexhaustible
source of quarrels. Neutral Powers would be driven in
self-defence to confine them within narrow limits, and to
watch with the utmost jealousy every attempt to extend
them.
Our main practical reliance in this matter is on our
own laws and regulations, and on those of other maritime
States. By these the general obligations of neutrality
are practically enforced; and, being everywhere within
the control of a sovereign legislative authority, they can
be moulded with a freedom and precision unknown to
international law. On this branch of the subject some-
thing remains to be said, since the imperfections, real or
supposed, of the neutrality law of Great Britain have
been more than once referred to in the course of this
chapter.
It has been assumed and affirmed on the part of the
United States --
1. That our neutrality law is defective.
2. That we have refused to amend the defect.
3. That the defect is or has been pleaded as an excuse
for the failure to fulfil an international obligation.
4. That this plea is bad. You are masters, it is said,
of your own legislation. If a more stringent law was
wanted to enable you to fulfil your international duties,
then it was your duty to have a more stringent law.
This last proposition, which is often advanced as if it
were a truism, is only true with a qualification Nations
are not bound to be endued with perfect wisdom and
foresight; they are therefore not bound to possess laws
in which no imperfection can ever be discovered; and,
NEUTRALITY LAWS.
403
where the law is such as, in the exercise of ordinary Chap. XIV.
foresight, might be deemed reasonably adequate for its
purpose, unforeseen defects, brought to light by unfore-
seen circumstances, afford a real defence against a charge
of injurious negligence.
As regards vessels not armed for war and not carrying
arms as cargo-a description which includes every ship
that left this country during the war for the Confederate
service—the only difference between the neutrality law
of America and that of England is that the latter is the
more severe of the two. Both are framed on precisely
the same model: the American Act indeed furnished a
model for the English ; but the language of the English
1 The American Act contains the following clauses, which were
introduced in 1817, and which are not in the English Act:-
“ Sec. 10. And be it further enacted, 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.
" Sec. 11. And be it further enacted, That the Collectors of the
Customs be, and they are hereby, respectively authorized and required
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
of this Act."
It will be observed that the first of these clauses applies only to
armed ships belonging wholly or in part to citizens of the United
States, and the second to vessels manifestly built for warlike purposes
of which the cargo shall principally consist of arms and munitions of
2 D2
404
NEUTRALITY LAWS.
Chap. XIV. Act, laboured and cumbrous in the extreme, from the
anxiety to stop every loophole through which a way of
evasion might be found, is more strict and searching
than that of the American. It may therefore be fairly
assumed to be such a law as ordinary foresight would
deem reasonably adequate for its purpose.
The English law, however, though in terms more
stringent, appears to have been enforced in practice less
freely and readily than the American, the working of
which is assisted by a more efficient local machinery
(the institution of “District Attorneys”), and is also
less embarrassed, perhaps, by the fear of illegally
interfering with private rights—a fear always present to
the mind of an English public servant, and kept alive
by the constant responsibility of every subordinate to his
chief, and of the chief of every department to Parlia-
ment. Greater reliance is there placed on local officials,
and a larger measure of discretion given to them, and
the questions of fact on which the legality of a seizure
depends are not submitted to a jury.
The British Government, as we have seen, formed
the opinion in the winter of 1862 that some amend-
ments “ which would have the effect of giving greater
power to the Executive to prevent the construction
Neither of them, therefore, could have been applied, had they
been a part of the law of England, to the cases denounced as violations
of neutrality during the late war.
It is stated by Mr. Bemis, an able American lawyer, in a letter
published in 1866, that the Act of 1817, when introduced into Con-
gress, was entitled “A Bill to prevent citizens of the United States
from selling vessels-of-war to the citizens or subjects of any foreign
Power, and more effectually to prevent the arming and equipping
vessels of war in the ports of the United States, intended to be used
against nations in amity with the United States; and that the first
section prohibited the fitting out and arming by American citizens of
any private ship or vessel-of-war, to sell the said vessel or contract
for the sale of said vessel, to be delivered in the United States or else-
where to the purchaser” with intent to cruise, &c.; but that this section
was struck out by the Senate, and the title of the Bill changed. The
Act as it was passed contained no such prohibition.
war.
CHANGES PROPOSED IN ENGLAND.
405
in British ports of vessels destined for the use of Chap. XIV.
belligerents” might usefully be introduced into the
Foreign Enlistment. Act. The British and American
Acts, however, being substantially identical on this head,
Mr. Adams was asked to ascertain whether any corre-
sponding amendments were likely to be adopted in the
United States. The American Government thought no
changes necessary in its own law; and, by the time
this answer arrived, Her Majesty's Ministers themselves
appear to have become convinced that no difficulty
existed in enforcing the law beyond that of procuring
evidence. They continued, during all the remainder
of the war, to enforce the Act as it stood, and they
detained every ship as to which there was any ground
for suspecting that she was intended for the service of a
belligerent. But subsequent cases—in one at least of
which the Executive had to pay for having over-
stepped the limit of its legal powers--seem to have
revived the original doubt; and the whole question was
referred in 1867, by Lord Derby's Administration, to
Commissioners, who were instructed to consider the
“ character, working, and effect of the Neutrality Laws
of the realm," and report any changes which it might
appear desirable to make in order to render those laws
more effectual. This Commission, which reported in
1868, advised in effect that the prohibitions of the
Act should be enlarged; that the despatching of a ship
with knowledge that she would be employed in hostilities
by a belligerent, and the building of a ship with intent
that she should be so employed “after being fitted
out and armed either within or beyond Her Majesty's
dominions," should be embraced within those prohi-
bitions. They added a recommendation, probably of
greater practical value, that, where reasonable and pro-
bable cause should exist for believing that a ship was about
to be despatched contrary to the enactment, or, having
been built or fitted out contrary to the enactment, was
406
NEUTRALITY LAWS.
Chap. XIV. about to be taken out of the dominions of the Crown,
power should be given to arrest and detain her, on a
warrant issued by a Secretary of State, or, within the
limits of a colony, by the Governor; the burthen of
proof that no violation of the Act had been committed
or was intended, to be thrown, in every case, upon the
owner of the ship so arrested.
A revision of the Neutrality Laws of the United
States had in 1866 been proposed in the House of
Representatives; and the subject was referred for con-
sideration to the standing Committee of that House on
Foreign Affairs. The Committee reported on the 25th of
July, 1866; and a Bill, partly abrogating the old law,
partly re-enacting it with amendments, was introduced
by the Chairman, and passed at a single sitting by a
unanimous vote. It did not, however, obtain the con-
currence of the Senate. The material changes proposed
by this Bill, so far as they have reference to our present
subject, were:
1. To remove a doubt suggested by the third section
of the Act of 1818, whether the bare “ fitting out” of
vessels, not armed, for the naval service of a belligerent
was not a prohibited offence, and make it clear that
this was not prohibited, and that to constitute an offence
there must be both a “fitting out and arming.''
2. To repeal altogether the two clauses mentioned
above," sometimes called the “ bonding clauses."
3. To insert a declaration that the Act shall not be
deemed “ to prohibit citizens of the United States from
selling vessels, ships, or steamers built within the limits
thereof, or materials or munitions of war the growth or
product of the same, to inhabitants of other countries or
Governments not at war with the United States."
1 It is understood that this Report has been under the consideration
of the Government, but no attempt has yet been made to legislate
upon it.
2 See above, p. 403, Note.
CHANGES PROPOSED IN AMERICA.
407
4. The Bill proposed, further, to repeal the clauses Chap. XIV.
which make it an offence to begin, or set on foot, or
provide, or prepare the means for, any military expe-
dition or enterprise, to be carried on from the limits
of the United States against any foreign country at
peace with the United States, and which authorize the
President to employ the military or naval forces of the
Republic to prevent such expeditions.
The reasons which led the majority of the Committee
to recommend these changes and which would indeed
have warranted changes still more important—are thus
stated in the Committee's Report:
“ The repeal or modification of these provisions will be, in the
judgment of your Committee, for the interest of the public peace.
Their effect now is to perpetuate the subjugation of States without
naval force to the will of dominant maritime nations. It may reason-
ably be assumed that the late bombardment of the South American
cities on the Pacific coast by Spain, which has been universally con-
demned, would not have occurred but for the stringent execution of the
provisions of this law by our Government. Had the South American
Governments been supplied with materials for defence from the
abundant resources of the United States, the invasion of the American
waters by the Spanish navy would not have been contemplated.
Ships are articles of commerce. They are in no liberal or just sense
contraband of war, nor are the materials of which they are made,
The recent improvements in naval architecture are such as to diminish
the distinctions between merchant-vessels and ships-of-war, and to
facilitate the adaptation of one to the purposes of the other. A strong-
built, swift-sailing merchant-vessel or steamer could be made with a
single gun an effective war-vessel. To prohibit our citizens from
building such vessels, or selling materials for their construction, at a
time when all nations, except our own, are at war, because they may
be employed for hostile purposes by foreign subjects, or to demand
bonds in double the amount of vessel, cargo, and armament, and to
require officers of the Customs to seize and detain them whenever
cargo, crew, or other circumstance' shall render probable a suspicion
that they are to be so used, and where American citizens are part
owners only, is substantially to deprive them of their rights to engage
in the construction of vessels or to furnish materials therefor. con-
sidering the limitless capacity of this country in this respect, it is a
privilege that ought not to be surrendered, except upon grounds of
absolute necessity and justice.”
408
NEUTRAL DUTIES.
Note.
Chap. XIV.
I abstain from any comment on the broad and
striking divergence between these two sets of proposals,
and between the views of international duty and expe-
diency expressed in the Report of the Committee and
those which are insisted upon in the recent despatch of
the American Secretary of State. I might be thought
uncandid, perhaps, if I were to assume that either the
Report or the Bill expressed the deliberate and well-
considered opinion of the House of Representatives, or
of its Committee on Foreign Affairs. Were I on the
other hand to treat them as hasty, ill-considered, and of
no significance, I should certainly appear disrespectful.1
!
NOTE.
Earlier American Precedents.
In the course of the correspondence between the two Governments
reference was frequently made to some passages in the earlier history of
the United States. Generally neutral in maritime wars, with an
immense line of coast and an enterprising and adventurous people,
it is from the United States more than from any other nation that
belligerents have tried to supply themselves with privateers, and have
in fact obtained such a supply. The American Government, therefore,
and American tribunals, have been compelled to grapple with this
question, and the precedents set by them have always been regarded
with respect. These precedents are drawn, first, from the war of 1793
between Great Britain and the French Republic; and secondly, from
the wars waged by Spain and Portugal respectively against their
revolted dependencies in the western hemisphere. Of the number of
privateers armed in the ports of the United States against the
commerce of Great Britain during the first period, and against Spain
and Portugal in the second, we have, as far as I am aware, no authentic
account. That they were numerous we know, both from the diplomatic
correspondence which is extant, and also from the reports of cases tried
in the American Courts. The privateers commissioned by Genet in
1793 are stated to have taken as many as fifty prizes before the end of
the summer (The Foreign Enlistment Act, by F. W. Gibbs, C.B.,
1 The Bill and the Report are criticised sharply and minutely by
Mr. Bemis, in a pamphlet which he has been kind enough to send
to me (American Neutrality, its honourable Past and expedient Future).
EARLIER AMERICAN PRECEDENTS.
409
1863, p. 13). If we are to credit the representations made by the Chap. XIV.
Spanish and Portuguese Ministers in 1817 and 1818, we must believe
Note.
that the American coast swarmed with such vessels; that the measures
adopted by the Government, anterior at least to the Act of 1818,
proved wholly ineffectual; and that no redress could be obtained from
the Courts. But these statements were probably over-coloured, as
complaints of this kind are apt to be. We know, however, from the
reported cases, as well as from the diplomatic correspondence, that
most of these privateers were not only fitted out and armed in the
United States, but were commanded and chiefly manned by Americans,
and that they were in many cases under the ownership and control,
not merely nominal but actual, of American citizens. The inadequacy
of the Common Law to repress these disorderly proceedings led to the
enactment of the Neutrality Laws of 1794, 1797, 1817, and 1818, upon
which the legislation of Great Britain has been modelled, with some
variations, to which reference has been made above. These laws,
however, were but partially effectual. Even after the enactment of
the Statute of 1818, which is the present Neutrality Law of the
United States, privateers continued to be armed against Portugal,
though in diminished numbers.
Prizes made by vessels thus fitted out have been restored, through
the agency of the American Courts, when such prizes have been
brought within their jurisdiction. The only exception to this occurred
early in 1793, when the question first arose, and the Government was
embarrassed how to deal with it. On the other hand, the American
Government has always steadily maintained that such enterprises
fastened no liability on the United States, unless they could be shown
to be due to the connivance or culpable neglect of the Government
itself, and that in the absence of such proof neither the frequency of
them, nor their long continuance, nor the amount of loss which they
might inflict on foreign nations, could be admitted as grounds for
compensation.
The correspondence with Portugal will be found in the Appendix
to the Official Correspondence respecting the Alabama, Lougmans, 1867.
There are two Treaties in which reference is made to claims of this
kind. One is the Treaty of Friendship and Commerce between Great
Britain and the United States of 19th November, 1794, and the other
the Treaty of 22nd February, 1819, between the United States and
Spain, by which Florida was ceded to the United States, and by the
IXth Article of which the two Powers reciprocally renounced all
claims on one another. That the Spanish claims for compensation were
meant to be included within the general terms of this Article is shown
by the previous negotiation. Mr. Adams appears to have supposed
that such a mutual renunciation is to be regarded as equivalent to ån
acknowledgment and award of compensation on both sides (Mr.
Adams to Earl Russell, 20th May, 1865, and 18th November, 1865).
This is not so. It is an agreement by each party to abandon its own
1
410
EARLIER AMERICAN PRECEDENTS.
Chap. XIV. disputed claims, on condition that the other party will do likewise. It
is so far from involving an admission of liability that the very object
Note.
of it is to preclude the necessity for deciding the question one way or
the other.
As to the VIIth Article of the Treaty of 1794, its operation is
confined by express reference to cases where restitution shall not
have been made agreeably to the tenor of Mr. Jefferson's letter to
Mr. Hammond, 5th September, 1793” (a copy of which was annexed
to the Treaty). The claims for compensation, therefore, which the
Commissioners were authorized to entertain were not claims in respect
of all prizes taken by privateers fitted out in American ports, but in
respect only of prizes brought into American waters, and of which
restitution could have been, but had not been made.
There is a careful account of the circumstances, which led to the
passing of the American Neutrality Laws, with much information on
the whole subject, in a memorandum by Mr. C. S. A. Abbott, of the
Foreign Office, which forms part of the Appendix to the Report of the
Neutrality Laws Commissioners, 1868,
CHAPTER XV.
Cruise of the Alabama.--Questions which årose.- Question whether
a Vessel supposed to have committed a Violation of Neutrality
should be excluded from the Ports of the Neutral.—Question on the
Operation of the Regulations of 31st January, 1862.-Confederate
Practice of destroying Prizes.-Cases of the Saxon, and the Tusca-
loosa.—Regulations of 2nd June, 1864.–Observations on the Practice
of Commissioning Tenders.-The Alabama arrives at Cherbourg.-
Action between the Alabama and Kearsarge, and Destruction of the
former.—Question respecting the Rescue of some of the Survivors
by the Deerhound.—The Florida and Georgia at Brest and Cher-
bourg.—The Florida carried off from Bahia.—The Shenandoah.
It was, as we have seen, on the 24th August, 1862,
that the Alabama hoisted her flag. She cruised for some
time off the Azores, then made for the coast of New
England, approaching within two days' sail of New York,
and touched in November at Martinique. Here she was
received, as the Sumter had been, in the character of
a Confederate man-of-war; and here, also, she escaped
from a Federal cruiser, as the Sumter, under the same
commander, had done before. The San Jacinto arrived
whilst the Confederate ship lay at anchor in the harbour,
and was as unfortunate as the Iroquois in missing a golden
opportunity-an opportunity, indeed, of doing a far more
important service than the Iroquois would have done had
she captured the Sumter. Following the example of the
captain of the Iroquois, the commander of the San Jacinto
remained off the mouth of the harbour in order to avoid
detention; and the Alabama, a faster vessel of far inferior
force, slipped away without difficulty during the night.
Off Galveston, in January 1863, she engaged and sunk
the Federal war-steamer Hatteras, one of the squadron
412
CRUISE OF THE ALABAMA.
is
Chap. XV. employed in the blockade of that port; afterwards visited
Jamaica, where she remained five days; proceeded thence
to the coast of Brazil; and from Bahia struck across the
Atlantic to the Cape of Good Hope, which she reached
at the end of July. In the neighbourhood of the Cape
she remained till September, when she departed for a
cruise in the Indian and China seas.
The Federal Government had made vigorous but
ineffectual efforts to prevent the admission of the Sumter
into neutral ports, on the plea that her employment was
piratical. To contend with anything like plausibility in
the second and third years of the war that a ship commis-
sioned by the Confederate Government ought to be
treated as a pirate, was plainly out of the question. But
it was suggested that the Alabama, having been built and
sent to sea in violation of the neutrality of Great Britain,
ought to be seized if she ventured within British juris-
diction, and ought at any rate to be excluded from our
ports, although she was received in those of other neutral
nations. Whether the despatch of the Alabama from
Liverpool really violated any rule of British or of inter-
national law, is at the least a doubtful question. Her
arming in Portuguese waters was certainly an offence
against Portugal. But there is no doubt that, had the
whole series of transactions which finally placed her on
the ocean armed, manned, provisioned, and commissioned
for war, been within the knowledge of the British Govern-
ment, and within its power of control, she would never
have left the Mersey; and that this was understood or
suspected by the Confederate agents is proved by the
concealment which masked her true ownership, and by
her hurried and clandestine departure. Yet the Govern-
ment could not have refused to regard her, when once
commissioned, as a public ship-of-war, without departing
either from the principle of neutrality which Great
Britain had adopted in common with every other
maritime State, or else from a settled usage, in the
ADMISSION INTO BRITISH PORTS.
413
maintenance of which all maritime States have a Chap. XV.
common interest. To be neutral it was necessary, as
we have seen, to treat the Confederate Government as
a Government in matters immediately connected with
the war; and, between Governments, it is an established
and salutary rule that a commission duly issued by com-
petent public authority incorporates a ship, whatever her
previous history, for all purposes, into the armed forces of
the Power in whose name and by whose authority the
commission runs. That Power assumes the responsibility
for all prior claims on her, as well as for all that she may
do whilst sailing under its flag; and any act of force
exerted against her is exerted directly against that Power.
From this it by no means follows that such a vessel may
not be excluded, after due warning, either general or
special, from the ports of a nation whose neutrality she
has been the means of infringing. Every Sovereign has
a general right to exclude from his ports either all ships-
of-war, or any particular ship, or to impose on admission
any conditions he may think fit; although the exclusion
of a particular ship would be unjust and offensive unless
reasonable grounds could be shown for it, and unless
the Sovereign were prepared to apply the same rule
indifferently to all Powers, great and small. And the
exclusion during war of a vessel belonging to one belli-
gerent for reasons which the neutral was not prepared to
apply to the other, would be a breach of neutrality, as
well as an act of injustice. It may be added that to
exclude an offending ship – whilst it is something short
of a downright demand for reparation, and though in
itself it may be a proper and reasonable mode of check-
ing offences which could only be directly chastised by
war-is a measure likely to be embarrassed by some
difficulties. These arise both from the fact that the
neutral Sovereign must constitute himself the judge of
the question whether there has been an offence or no,
and enforces his own judgment by a process which is in
414
REMARÍS.
.
Chap. XV. its naturè peremptory, and still more from the circum-
stances under which hospitality is commonly sought.
Stress of weather, injuries sustained at sea or from mere
wear and tear, the necessity for repairs, for sustenance,
and even for fuel when fuel is indispensable for loco-
motion, are pleas to which it is hard to turn a deaf
ear; and the ordinary hospitalities of a port consist in
furnishing these things. These considerations would
alone be sufficient to show that to refuse hospitality to a
belligerent vessel which has been guilty of some infrac-
tion of the laws of neutrality, though it may be the
right, can never be treated as the duty, of the neutral.
But in truth there is no foundation for such a duty. The
belligerent who contrives to arm himself in à neutral
port commits no offence against his enemy. His offence
is against the neutral Sovereign; and it is for the neutral
Sovereign to choose his own mode of resenting it to
accept, if he pleases, an explanation or apology—to con-
fine himself, if he will, to simple remonstrance, or,
according to his judgment of the circumstances, to pass
it over altogether. He is not answerable to the other
belligerent for the exercise of this discretion; nor does
he, by exercising it in one way rather than in another,
incur a constructive responsibility (which would be
merely fictitious) for a connivance or culpable neglect of
which he never was in fact guilty.?
1 There is, on the other hand, a recognized duty to restore prizes
captured by a vessel which has been fitted out, or has increased her
armament, illegally, provided they were captured during the cruise
with a view to which the illegal outfit or augmentation was effected,
and are brought within the jurisdiction of the neutral Power. The
exclusion of all prizes from British ports prevented this question from
arising during the late war. Had it arisen, the question whether there
had in fact been an illegal outfit would have come before a Court of
Admiralty.
It would be erroneous, I conceive, to contend that the taint of
illegality, if any, adhering to the Alabama, was ever “deposited," as
the phrase is, by the termination of her original cruise. She never
made but one cruise, which began when she hoisted her flag off
Terceira and ended when she struck it off Cherbourg.
REGULATIONS AS TO COALING.
415
I have referred above to the practical difficulties Chap. XV
which surround every attempt to deny to ships not
actually hostile the ordinary hospitalities of a friendly
port. It is, indeed, because the perils and mischances
of the sea, to which all are exposed alike, are so many,
so capricious, and so tremendous, that even the belli-
gerent cruiser, bent on an errand of hostility, is per-
mitted by universal consent to obtain in a neutral port
necessary shelter and the means of prosecuting her
voyage. The introduction of steam-power seems to have
at once diminished and increased these difficulties-
diminished them by enabling ships to go to sea without
waiting for a wind; increased them by-making machinery,
which is liable to want repairs, a part of the apparatus
of navigation, and by rendering cruisers dependent not
only on canvas but on coal. These remarks are illus-
trated by the experience of the late war. During the
first few months of it, no restriction appears to have
been placed on the coaling of belligerent vessels in
neutral ports. But the British Government, in January
1862, issued, as we have seen, a series of regulations
designed to prevent the ports of the Empire from being
used by either belligerent as cruising stations or for
cruising purposes. These orders appear to have been
enforced with a reasonable degree of strictness; but it
must be owned that to enforce them was not always
easy : a vessel which had obtained repairs and coal
sufficient to find her way home could not be pre-
vented from afterwards continuing her cruise; nor
could she always be prevented from presenting herself,
within the period of three months limited by the
orders, at another colonial port where she was a stranger,
and getting a fresh supply. Again, the quantity of
coal which a vessel requires depends very much on the
weather she encounters; head winds and a heavy sea
will soon exhaust her stock. And what was to be
considered the nearest home port of a Confederate
1 See above, p. 137.
416
REGULATIONS AS TO COALING.
Chap. XV. cruiser, when all her home ports were blockaded or in
the enemy's hands ? Colonial authorities, to whom the
arrival of a belligerent ship was always a most unwel-
come event, especially if she flew Confederate colours,
must have been occasionally tormented by such petty diffi-
culties as these. The proper construction of the orders
doubtless was, that a vessel which had coaled in one
British port should not be suffered to replenish her stock
in another, if it should appear to have been consumed,
not in making for a definite destination, but in cruising;
that some allowance must be made for stress of weather;
and that no favour or exemption could be granted to a
Confederate ship on the mere ground that all the ports
of her own country were under blockade. This was the
fortune of war, and could give her no claim to any
special privilege.
1
1 The subjoined correspondence supplies a specimen of this class of
questions:
Commander Baldwin, U.S.N., to Sir P. Wodehouse.
Sir,
“Vanderbilt,' Cape Town, October 22, 1863.
“I have the honour to make known to your Excellency the arrival
here of this ship.
“I have come to this barbour for the purpose of making some
necessary repairs to my machinery, and also to get a supply of fuel.
“I therefore ask your Excellency's permission to lie here for the
above-mentioned purposes the necessary time, say, from four to six
working days.
“I have, &c.
(Signed) “Chas. K. BALDWIN."
6 Sir,
The Colonial Secretary to Commander Baldwin, U.S. N.
“ Colonial Office, October 23, 1863.
“I am directed by the Governor to acquaint you, that he has given
his best consideration to the letter which he had the honour of receiving
from you yesterday, as well as to the verbal representations you made
to him relative to the issue of coals to American vessels-of-war by the
special permission of the Governors of other British colonies, as an
exception to general directions of the British Government on the
subject.
“ Looking to the stringent nature of the instructions he has
DIFFICULTIES ON THIS POINT.
417
The Confederate cruisers, vagabonds throughout their Chap. XV.
career on the surface of the ocean, were put to sundry
66
received, the Governor entertains some doubt whether the authority to
grant 'special permission' be really vested in himself. But he ccnsi-
ders that there are special circumstances affecting the ship under your
command sufficient in themselves to guide him in dealing with your
application.
“ It has been the unvarying desire of Her Majesty's Government to
abstain, as far as practicable, from affording to either of the parties
engaged in the American civil war assistance in the prosecution of
hostilities towards each other; and accordingly, in regulating the
issue of coals at British ports to their ships-of-war, the object has
manifestly been to restrict those issues to the supplies needed for
carrying them to some defined destination in foreign parts, or from
some foreign port to their own country, and not to facilitate their
cruising for an indefinite period for purposes of the war.
Applying this principle to the case of the Vanderbilt, the Governor
finds that on her way from South America to the Cape she coaled
at the British colony of St. Helena ; that shortly after that she
coaled again at Simon's Bay; and that after remaining in the neigh-
bourhood of our ports for a time, she proceeded to Mauritius, where
she coaled again, and then returned to this colony.
“It is also matter of notoriety that the object of her movements
has been to intercept the Confederate cruisers which have lately visited
our shores. Under these circumstances, with the information now
before him, the Governor believes that he would be acting in opposition
to the spirit of Her Majesty's instructions if he were to grant 'special
permission for the issue of coals within the limited term of three
months.
“His Excellency has no objection to offer to your remaining in
port for the time required for the completion of indispensable repairs.
“I have, &c.
(Signed) “RAWSON W. RAWSON."
Rear-Admiral Sir B. Walker to the Secretary to the Admiralty.
(Extract.)
“Sir,
“Narcissus,' in Simon's Bay, November 17, 1863.
“I beg you will inform the Lord Commissioners of the Admiralty
that the United States' ship-of-war Vanderbilt, after leaving this
port on the 11th September last, proceeded to Mauritius, in search, I
believe, of the Confederate ships Alabama and Georgia; not find-
ing either of those vessels, she returned to Table Bay to coal and
provision on the 22nd ultimo.
“When this vessel first touched at this port, the Commander
2 E
418
COALING BY BELLIGERENT CRUISERS.
Chap. XV. shifts for coal. The Alabama took in her first two
supplies at two of the desolate coral islands in the
Atlantic, where a coal-ship had been ordered to
meet her; the third she got from one of her prizes,
which she carried into Fernando de Noronha for the
purpose. She obtained supplies also at Bahia, at
Simon's Bay, and at Singapore ; and she coaled at
Cherbourg before going out to give battle to the
Kearsarye. The transhipment of coal at sea was deemed
requested to be supplied with coals and provisions, which, on the sup-
position that he had not received any at a British possession for three
months, having it was believed come last from Rio de Janeiro, his
demands were complied with. It was subsequently ascertained that
the Vanderbilt had touched at St. Helena and received about 400
tons of coal, all that was there.
“Under these circumstances, with the fact of her having obtained
coal at Mauritius, on the question being raised, I expressed to the
Governor of this colony my opinion that no further supplies should be
given her here, in accordance with the provisions of Earl Russell's
letter for the preservation of strict neutrality. The Vanderbilt did
not, therefore, receive any coal, and left Table Bay on the 27th ultimo,
proceeding northward."
Shortly after the above correspondence, the Vanderbilt succeeded in
supplying herself by seizing and carrying off a quantity of coal (250
tons, valued at 1,5001.), the property of a Cape Town firm, found
stored at Angra Pequena, the place mentioned in a subsequent note as
the scene of the capture of the Saxon, which belonged to the same
firm. As to this, Lord Russell subsequently wrote to Lord Lyons :-
“As regards the coal taken by the Vanderbilt from Penguin
Island, Her Majesty's Government cannot doubt that the Government
of the United States will immediately make to the owners thereof full
compensation for the value of the coal, and for the loss they may have
sustained in consequence of the violent act of the Commander of the
Vanderbilt in appropriating it for the use of that vessel ; but you
will not fail to call the serious attention of Mr. Seward to the proceed-
ing of the United States' officer, for which no justification or excuse can
be discovered in any reports which have reached Her Majesty's Govern.
ment in regard to those matters which form the subject of this
despatch."
It does not appear that any compensation was made. The coal was
probably intended for the Alabama.
PRACTICE OF DESTROYING PRIZES.
419
a process too tedious and hazardous to be tried. It Chap. XV.
appears, however, to have been effected more than once
by the Florida.
Debarred from carrying their prizes into their own
ports, which were under blockade, or into those of
neutral Powers, the Confederates early adopted, and
continued to the last, the practice of burning them at
sea. This is certainly a destructive way of making
war;
it aggravates the waste and havoc which are
inseparable from hostilities directed against private
property, and of which the avowed purpose is the
temporary ruin of the enemy's commerce. But it is not
prohibited by any international law or usage, and it has
not rarely been resorted to by captors who, from fear of
weakening themselves by sending home prize-crews, or
for any other reason, have found themselves at a loss how
to dispose of their prey. Happily, a captor under ordi-
nary circumstances needs no other dissuasive than his own
interest. He is accountable, however, for the disposal
of his prizes to his own Government alone. He is as
free to destroy them (if the orders under which he acts
I“ Aware of the state of incapacity to which some of the British
frigates on the station had reduced themselves by manning and sending
in their prizes, Captain Broke destroyed all he captured. We believe
he had sacrificed not fewer than twenty-five sail of prizes, to keep the
Shannon in a state to meet one or the other of the American frigates.
-James's Naval History, vol. vi, p. 197.
I find the following statement in a Memorial addressed in 1814 to
the Admiralty by merchants and shipowners of Bristol, praying for
protection against American privateers in the British seas :-
“Your memorialists have seen with regret that the American
vessels-of-war, private as well as national, have lately adopted a novel
and extraordinary practice (particularly as it regards the former) of
burning and destroying such prizes as they have no reasonable expecta-
tion of getting into port-a system, as your memorialists are informed,
sanctioned and promoted by pecuniary rewards from the American
Government. And your memorialists are confirmed in their belief of
the truth of this information by the great anxiety always shown by the
commanders of the enemy's cruisers to get possession of and to pre-
serve the registers and other papers of such vessels as they destroy."
2 E 2
420
PRACTICE OF DESTROYING PRIZES.
Chap. XV. direct or permit it) as to send them home for sale; and
a formal sentence of condemnation, of which the effect
is to establish the fact of hostile or constructively hostile
ownership, and the chief use to convey a secure title to
a neutral purchaser, is superfluous where there is no
neutral purchaser and the original owner is confessedly
an enemy. Cases might, indeed, arise in which the
whole or part of the cargo was either owned by
neutrals, or documented at least as neutral property :
in such cases—and they were numerous—it was the
custom of the Confederate commanders, if they were
satisfied that the neutral claim was genuine, to release
the ship on a bond being given for payment of a
ransom; if they thought it fraudulent, to destroy both
ship and cargo. There is no reason to suspect these
officers, all of whom, I believe, had served in the United
States' Navy, of any wilful misconduct. But it is
obvious that a mock adjudication by a naval officer
in his own cabin, on a hasty examination of papers,
without opportunity for the claimants to be heard or
produce evidence, could never be accepted by neutrals
as satisfactory; and that a belligerent Government,
sanctioning such proceedings and hesitating to make full
compensation to claimants who could make out a fair
prima facie case, would expose itself to something more
than remonstrance.
In only one instance, I believe, did the captain of
the Alabama make an attempt to turn a prize into
money. He sold to a Capetown merchant an American
vessel, the Sea Bride, which he had captured outside
of Table Bay, and sent her to an unfrequented spot
on the western coast beyond the limits of the Cape
Colony, where she passed into the hands of the pur-
chaser. He deposited also at the same place a cargo of
skins and wool, taken from the Conrad, a Philadelphia
barque in the South American trade; these he had like-
wise disposed of on the terms that they should be sent to
CASE OF THE SAXON.
421
Europe for sale, and two-thirds of the price paid to the Chap. XV.
credit of the Confederate Government. But a colonial
vessel (the Saxon) despatched to remove the cargo
was surprised in the act of taking it on board by a
Federal war-steamer, which made prize of her and sent
her for adjudication to New York.
1 The owners of the Saxon complained to the British Govern-
ment of the capture of their ship. It was further alleged that the
Vanderbilt had been guilty of a violation of British territory, the
place where the capture occurred having been formally taken possession
of, some years before, in the Queen's name, by a previous Governor of
the Cape Colony. It also appeared that during the seizure of the
Saxon, her mate, a young Scotchman, had been shot dead, without
the least provocation, by one of the officers of the Vanderbilt; and a
claim for some compensation was made on behalf of his widow.
On these points Lord Russell wrote to Lord Lyons:
“As regards the capture of the Saxon, as Angra Pequena is not a
British possession, but would seem to be a deserted spot, and as the
Proclamation of Governor Grey of the 12th of August, 1861, pur-
porting to extend the jurisdiction of the Crown over Penguin Island,
was not previously authorized, and has not since been confirmed by
Her Majesty, no violation of neutral or British territory appears to
have taken place, and the jurisdiction of the United States' Prize
Court could not be contested on the assumption of such violation
having been committed.
“It seems, moreover, to have been admitted by one of the owners
of the Saxon to Governor Wodehouse, that the vessel had been
actually engaged in taking on board part of a príze cargo landed from
the Tuscaloosa, for the purposes of conveying it to market as the
property of, and on account of, Captain Semmes of the Alabama.
“ Under these circumstances Her Majesty's Government see no
ground for seeking to withdraw the case from the jurisdiction of the
Prize Court.
“As regards the murder of the mate of the Saxon, I have already
instructed you, by my despatch of the 30th of January, to express to
Mr. Seward the opinion of Her Majesty's Government that the officer
of the Vanderbilt, by whom that murder was committed, should be
brought to trial without delay; and you will further state to the
American Minister that pecuniary compensation to the widow ought
to form part of the redress which the Government of the United States
should make for this atrocious act of their officer.”
A Court of Inquiry subsequently held at Boston came to the con.
clusion that the shooting of the mate was unpremeditated, and must be
regarded as a casualty. The American Government finally declined to
422
CASE OF THE TUSCALOOSA.
Chap. XV
Out of the capture of the Conrad, and the use
afterwards made of that vessel by her captor, arose
another question, of some interest in itself, though
circumstances rendered it practically unimportant. The
Conrad, a sailing barque of 500 tons, had fallen into
Captain Semmes's hands in the latitude of the Canaries,
soon after he left Brazil. Judging her fit for employment
in the predatory warfare in which he was himself
engaged, he had removed her crew, put aboard of her a
lieutenant, three inferior officers, and ten men, armed
her with two brass rifled 12-pounders which he had taken
out of a former prize, christened her the Tuscaloosa,
commissioned her "as a tender," and sent her cruising,
with orders to meet him at the Cape of Good Hope.
This occurred in June. The two vessels rejoined one
another at the end of six weeks, in Saldanha Bay, the
Tuscaloosa having in the meanwhile taken a prize; and
the latter proceeded to Simon's Bay, the naval station
of the Cape Colony, followed by the Alabama herself
three days afterwards.
make any compensation to the widow, under these circumstances, for
the act of its officer.
It may here be mentioned that the capture of the Sea Bride was
alleged by the United States' Consul to have been made within
British waters, and he urged that, having regard to the increased
range of modern artillery, the old limit of three miles from shore ought
to be held obsolete. This limit, however, though it has become little
better than arbitrary, has not yet been abandoned; and the evidence
clearly. proved that the Sea Bride was in fact captured more than
four miles from land, and outside of Table Bay.
It was further alleged that she had been brought within the limit
after capture, and ought on this ground to be restored. She had, as it
appeared, been suffered to drift within two miles of the shore by the
inadvertence of the officer in charge of her, who carried her out again
as soon as he discovered his mistake. The Governor regarded this
-rightly, as I think, though his decision was questioned by the
authorities at home-as an act which might be atoned for by an
explanation, and did not warrant the seizure of the ship; and it is
probable that the United States' Consul would have been of the same
opinion had the capturing vessel been the Vanderbilt and the captured
yessel the Alabama.
CASE OF THE TUSCALOOSA.
423
The appearance of a barque laden with wool and Chap. XV.
hides, with a crew only sufficient to navigate her
and a couple of small guns for her whole armament, and
calling herself a ship-of-war, seems to have caused
lively dissatisfaction to Sir Baldwin Walker, the English
Admiral on the station; and he stated his opinion with
some earnestness to Governor Wodehouse :
« The admission of this vessel into port will, I fear, open the door
for numbers of vessels, captured under similar circumstances, being
denominated tenders, with a view to avoid the prohibition contained
in the Queen's instructions; and I would observe that the vessel Sea
Bride, captured by the Alabama off Table Bay a few days since, or
all other prizes, might be in like manner styled tenders, making the
prohibition entirely null and void.
“I apprehend that to bring a captured vessel under the denomina-
tion of a vessel-of-war, she must be fitted for warlike purposes, and not
merely have a few men and two small guns put on board her (in fact,
nothing but a prize crew) in order to disguise her real character as a
prize.
“Now this vessel has her original cargo of wool still on board,
which cannot be required for warlike purposes, and her armament and
the number of her crew are quite insufficient for any service other than
those of slight defence.
Viewing all the circumstances of the case, they afford room for
the supposition that the vessel is styled a 'tender' with the object of
avoiding the prohibition against her entrance as a prize into our ports,
where, if the captors wished, arrangements could be made for the dis-
posal of her valuable cargo, the transhipment of which, your Excellency
will not fail to see, might be readily effected on any part of the coast
beyond the limits of this Colony.
My sole object in calling your Excellency's attention to the case
is to avoid any breach of strict neutrality.”
The Governor, acting on the opinion of his responsible
legal adviser, resolved on admitting the Tuscaloosa.
In reporting this decision to the Secretary of State
for the Colonies, he asked to be instructed on another
question, which appeared likely to arise, if indeed it had
not already arisen :-
“Before closing this despatch I wish particularly to request instruc-
tions on a point touched on in the letter from the United States'
Consul of the 17th instant, viz., the steps which should be taken here
424
CASE OF THE TUSCALOOSA.
Chap. XV. in the event of the cargo of any vessel captured by one of the belli-
gerents being taken out of the prize at sea, and brought into one of our
ports iu a British or other neutral vessel.
“Both belligerents are strictly interdicted from bringing their
prizes into British ports by Earl Russell's letter to the Lords of the
Admiralty of the 1st June, 1861, and I conceive that a Colonial
Government would be justified in enforcing compliance with that
order by any means at its command, and by the exercise of force if it
should be required.
“But that letter refers only to 'prizes,' that is, I conceive, to the
ships themselves, and makes no mention of the cargoes they may
contain. Practically the prohibition has been taken to extend to the
cargoes; and I gathered from a conversation with Captain Semmes on
the subject of our neutrality regulations, that he considered himself
debarred from disposing of them, and was thus driven to the destruc-
tion of all that he took. But I confess that I am unable to discover
by what legal means I could prevent the introduction into our ports of
captured property purchased at sea, and tendered for entry at the
Custora-house in the usual form from a neutral ship. I have consulted
the Aeting Attorney-General on the subject, and he is not prepared to
state that the Customs authorities would be justified in making a
seizure under such circumstances; and therefore, as there is great
probability of clandestine attempts being made to introduce cargoes
of this description, I shall be glad to be favoured with the earliest
practicable intimation of the views of Her Majesty's Government on
the subject."
Sir Philip Wodehouse's decision was not approved by
the Home Government. The Duke of Newcastle was
advised that the Tuscaloosa “ did not lose the character
of a prize captured by the Alabama, merely because she
was, at the time of her being brought within British
waters, armed with two small rifled guns, and manned
with a crew of ten men from the Alabama, and used
as a tender to that vessel under the authority of Captain
Semmes." As to the cargoes of captured vessels, the
Governor was instructed that the Queen's Orders "apply
as much to prize cargoes of any kind, which may be
brought by any armed ships of either belligerent into
British waters, as to the captured vessels themselves,
They do not, however, apply to articles which may have
formed part of any such cargoes, if brought within British
CIRCULAR INSTRUCTIONS.
425
jurisdiction, not by armed ships or privateers of either Chap. XV.
belligerent, but by other persons who may have acquired
or may claim property in them by reason of any dealings
with the captors."
The departure of the Tuscaloosa, early in August,
for a cruise on the coast of Brazil, had relieved the
Governor from further trouble on her account. But with
her return, five months afterwards, the question revived.
She was then seized by Rear-Admiral Walker, with the
concurrence of the Governor, who believed—and was
perhaps warranted in believing-that his instructions
left him no choice. She had at that time on board six
small guns, four officers (all commissioned in writing to
the ship by Captain Semmes), and twenty men, and con-
tinued to style herself “ tender to the Alabama.” The
lieutenant commanding her protested warmly against
this treatment. His vessel had been received, he said,
when she was previously in Simon's Bay, as a commis-
sioned ship-of-war; and when she left, as was well
known, for a cruise on active serviec, no intimation had
been conveyed to him that she would on her return be
regarded as a “prize” and liable to seizure. Nothing had
occurred in the meantime to deprive her of the character
in which she had been originally recognized ; and having
received no notice or warning of any kind, he had a
right to expect to be permitted to enter without molest-
ation. This remonstrance had so much reason in it that
Governor Wodehouse was directed, “on the special cir-
cumstances of the case, to restore the vessel.” The order,
however, came too late. The Tuscaloosa's officers had
left the Colony, and she remained in the hands of the local
authorities until the end of the war, when she passed into
the possession of the Government of the United States.
This train of circumstances appears to have given
occasion to the Circular Instructions of 2nd June, 1864,1
which provided, more or less effectually, for the various
I See above, p. 140.
426
EMPLOYMENT OF TENDERS.
Chap. XV. questions which had arisen. These instructions excepted
from the operation of the Order excluding prizes; any
vessel “which shall have been actually and bona fide con-
verted into and used as a public vessel-of-war.” In all
doubtful cases of this kind the substantial question is,
whether the vessel is armed for war and is commissioned
as a public ship by a competent public authority. If
she be not commissioned as well as armed, her previous
character remains unchanged, and she has no claim to any
of the immunities of a public ship; if she be, satisfaction
for any irregularities committed in fitting her out, or of
which she may have been made the instrument, ought
to be sought from the Government which has become
responsible for her, by incorporating her into its navy.
It is not, I conceive, to be assumed that, by virtue of
any universal custom, captains of men-of-war may com-
mission vessels as “tenders,” and thus invest them with
the character of public ships : such an authority, where it
exists, is a delegated authority derived from the Sovereign,
and granted either expressly or by the established rules
of a particular naval service ; and there are good reasons
why it should not be general and unlimited. The
Confederate officers appear to have used this power, or
assumed power, very freely. The Florida, in the course
of a few weeks, converted two of her prizes into "ten-
ders,” each of which did considerable mischief. That
1 See the observations of Sir C. Robinson in he Donna Barbara
(Haggard's Admiralty Reports, iii, 366). Authority for the employ-
ment of tenders, it was there laid down, is given by the Admiralty, by
means of official letters sanctioning the purchase or use of such vessels,
and it is granted only for a limited number, with reference to the
service on which the ship is employed, the number of her crew, and
other considerations of a public nature, on which the fitness and
expediency of such a measure must depend.
“ It should be left to the State,” said Lord Stowell, in reference to
the same subject, “ to judge of the extent and the mode of hostility
that is to be exercised.”—The Melomanie, Rob. v, 40.
% See the account of her cruise in Moore's Rebellion Record, vol. vii,
p. 458 (Documents).
ALABAMA AND KEARSARGE.
427
the Tuscaloosa was bona fide used as a vessel-of-war, Chap. XV.
there is no doubt. But a grave irregularity, at the least,
was committed in sending her into a neutral port with
cargo—a cargo which she was afterwards employed in
transporting to the place where it was to be handed over
to the purchaser. This irregularity alone was amply
sufficient to justify the misgivings of Sir Baldwin
Walker.
The Alabama returned in March 1864 from her cruise
in the China seas, touched again at the Cape, and in
five days sailed for Europe, much the worse for hard
and incessant service. She directed her course to Cher-
bourg, but had not been three days at her moorings when
the United States' war-steamer Kearsarge, a vessel of
about the same class, arrived from Flushing, and lay off
the mouth of the harbour. Captain Semmes sent word to
bis antagonist an officer with whom in other times he had
sailed as a member of the same service that he would
come out and fight his ship as soon as he had had time
to coal. On Sunday morning, the 19th June, six or seven
miles from shore, the two vessels engaged one another,
and the Kearsarge succeeded in sinking her enemy,
after an action of a little more than an hour. Here, in
the waters of the Channel, closed the first and only
cruise of the Alabama. But a new discussion, con-
ducted with some warmth by the American Govern-
ment, sprang up even out of the circumstances of her end,
and it is therefore necessary to state those circumstances.
At the time when the Alabama hauled down her
flag, she was in a sinking state; and she went down
about twenty minutes afterwards. All the wounded, and
such of the boys as were known to be unable to swim,
were sent to the Kearsarge in the boats not destroyed
in the action. Those who remained in the ship threw
themselves into the water as she settled down by the
stern, and swam for their lives. Of these some were
picked up by boats lowered by the Kearsarge, others
428
ALABAMA AND KEARSARGE.
Chap. XV. by two French pilot-boats which were near,7 others again
by an English yacht, the Deerhound, the owner of
which, with his wife and children, had come out of
Cherbourg to see a sight they were not likely to see again.
Among the last to leave the ship were the Captain and
First Lieutenant, and these, with other officers and
men, succeeded in reaching the Deerhound. Ten were
drowned—among them the Assistant Surgeon, who had
refused to go with the wounded in the boats, and was
the only Englishman whom the Alabama numbered
among her officers. This is Captain Semmes's account,
and there is no reason for imputing untruth to him. The
Deerhound, which was at a considerable distance when
the Alabama struck, steamed up when the latter was
seen to be sinking. What followed is thus related
by the owner of the yacht in a letter which he
afterwards addressed to Earl Russell :-
+
“ At half-past 12 o'clock we observed the Alabama to be dis-
abled, and in a sinking state; and as I saw that no boats were being
lowered from the Kearsarge to save the crew of the sinking ship, it
occurred to me that the Kearsarge also must be disabled, and that
her crew must be unable to help the people of the Alabama. Under
this impression I felt it my duty to make towards the Kearsarge in
order to offer assistance; and, when within hail of that vessel, I called
out and asked whether I eould afford them any help, and the answer
was, “No, but for God's sake do what you can to save them ! We
immediately pushed towards the Alabama, and when within a distance
of 200 yards, she sank. This occurred at 12:50. We then lowered
our two boats, and with the assistance of the Alabama's whale-boat
and dingy, succeeded in saving about forty men, including Captain
Semmes and thirteen officers. At 1 P.M. we steered for Southampton.
"I acknowledge, my Lord, that in leaving the scene of action so
quickly I was animated with a wish to save from captivity Captain
1 Mr. Dayton writes: “Many boats went off towards its close” (the
close of the action), “and helped to pick up the swimming and
drowning men. Some were brought by our own boats to the Kear-
sarge, some were carried on shore, and some got off in an English
vessel and were landed, I am informed by telegram, at Southampton."
-To Mr. Seward, 20th June, 1864.
COMPLAINT AGAINST THE DEERHOUND.
429
Semmes and the others whom we had rescued from drowning; but I Chap. XV.
should have done the same for the people of the Kearsarge if they
had been placed in similar jeopardy. I am charged with having aided
in the escape of men who had surrendered themselves prisoners of
war, but I did not know at the time that they had so surrendered.
Whether, under the circumstances, they could be justly considered
‘prisoners of war,' is a question which I will not presume now to
discuss, inasmuch as it is not necessary for my justification. At the
time when I rescued Captain Sommes and others from the water I had
the warrant for so doing in the request from the Captain of the
Kearsarge that I would render them assistance. That request was
not accompanied with any condition or stipulation; and therefore,
having got as many of the drowning men on board as I could reacb,
I was not conscious of being under any obligation to consult the
Captain of the Kearsarge as to their disposal, and I took them as
soon as possible to Southampton in compliance with their own earnest
entreaties."1
as
The report of the captain of the Kearsarge contains
nothing inconsistent with these narratives. Не
mentions, however, that one of the Alabama's officers
had come alongside of the Kearsarge, and had asked
that her boats might be lowered; and that
it
was apparent the Alabama was settling, this
officer was permitted to leave in his boat to afford
assistance”-a circumstance not stated by Captain
Semmes.
The American Government complained bitterly of
the conduct of the yachtsman. He ought, it was
insisted, to have handed over the persons whom he
had picked up to the captain of the Kearsarge ; and
he was accused, without foundation, of having had
a previous understanding with Semmes. A neutral
has, indeed, no right to approach during an action
for the purpose of giving assistance to either combatant,
or of rescuing either from the pursuit of a victorious
enemy; if he attempts such interference, he makes
himself a party in the conflict, and may be treated
as such. But in this case there was no such inter-
1 Mr. Lancaster to Earl Russell, 16th July, 1864.
430
THE FLORIDA.
Chap. XV. ference. The yachtsman was a stranger, whom chance
and curiosity had drawn to the spot; he appears to
have been actuated by common humanity in trying
to save drowning men; and he was not only per-
mitted but entreated to do so by the captain of the
Kearsarge. A naval officer should understand that he
is not entitled, under such circumstances, to call upon
the neutral to surrender the persons whom he has been
instrumental in saving.
The neutral owes no such
obligation. He has, indeed, no right to transfer them
forcibly from the deck of his own ship to that of
the victor, nor has the latter the right to seize and
capture them on the deck of the neutral. Whether the
Alabama's boats, after she struck, ought to have been
employed in putting men on board the Deerhound, and
whether an officer who had once been alongside of
the Kearsarge, and had been suffered to return, was
not bound in honour to consider himself as a prisoner on
parole, though he might not have been formally paroled,
are questions which do not affect the owner of the
Deerhound.
The cruise of the Florida began when she issued
from Mobile in January, 1863. For some time she
cruised in the Atlantic, making many prizes, and once
approaching within fifty or sixty miles of New York.
In July she touched at Bermuda, where she was unable
to obtain the supply of coal she desired, but made her
way across the ocean, and in August put into the harbour
of Brest, landed the crew of a Federal merchantman
which she had burnt off the Irish coast, and went into dock
for repairs. The subjoined extracts from Mr. Dayton's
correspondence show the nature of the remonstrances to
which this gave rise, and the answers elicited from the
French Government. The Florida remained in Brest
1 “I have this day sent out a note to the Minister, informing him
that I had learned that the Florida had come into Brest, not for repairs
of machinery only, but for coal, which had been denied to her at
THE FLORIDA.
431
harbour till the end of January or the beginning of Chap. XV.
February, 1864. During much of this time (from
28th October, 1863, to 15th February, 1864) the Georgia
Bermuda, from which port she had come. The fact is, that as she is
a good sailing vessel, and has crossed the Atlantic, as I believe,
principally by that means, neither coal nor machinery is necessary to
her safety, although a great convenience, doubtless, in enabling her to
prey upon our commerce. It may well be doubted whether the rule
which limits aid in such cases, to what is called for by necessity and
humanity, applies at all to her case." -Mr. Dayton to Mr. Seward,
25th August, 1863.
“I have to-day had a conversation with M. Drouyn de l’Huys upon
the subject. He says they are much annoyed that the Florida should
have come into a French port. But having recognized the South as
belligerents, they can only deal with the vessel as they would deal with
one of our ships-of-war under like circumstances. They will give her
so much aid as may be essential to her navigation, though they will not
provide her with anything for war. I stated that she was a good sailer,
and really needed nothing in the shape of repairs to machinery, &c., to
enable her to navigate. He said that if she were deprived of her
machinery, she was pro tanto disabled, crippled, and liable, like a duck
with its wings cut, to be at once caught by our steamers. He said it
would be no fair answer to say the duck had legs, and could walk or
swim. But he said that, in addition to this, the officers of the port had
reported to the Government that the vessel was leakiug badly; that she
made water at so much per hour (given the measurement), and unless
repaired she would sink ; that this fact, coming from their own officers,
he must receive as true. They said nothing, however, about her copper
being damaged, but reported that she needed calking and tarring, if I
understood the French word rightly. I then asked him if he understood
that the rule in such cases required or justified the grant of a Govern-
ment dock or basin for such repairs, especially to a vessel like this,
fresh from her destructive work in the Channel ; remarking that, as she
waited no judicial condemnation of her prizes, when repaired in this
Government dock, she would be just at hand to burn other American
ships entering or leaving Havre and other French ports. He said
where there was no mere commercial dock, as at Brest, it was
customary to grant the use of any accommodations there to all vessels
in distress, upon the payment of certain known and fixed rates; that
they must deal with this vessel as they would with one of own ships,
or the ships of any other nation, and that to all such these accom-
modations would be granted at once.”—The same to the same, 3rd
September, 1863.
On the 19th instant I received a note from M. Drouyn de l'Huys
requesting to see me on the next day (yesterday) in reference to certain
1
432
THE FLORIDA.
Chap. XV. —which had, as we have seen, armed herself, by the
instrumentality of an English steamer, in French waters,
and had since been cruising in the South African seas-
matters of business. I, of course, attended at the Foreign Office at the
time named. He then informed me that it had been reported to him
that the United States' steam-ship Kearsarge, Captain Winslow, now
in the port of Brest, kept her steam constantly up with the view, as
supposed, of instantly following and catching, if possible, the Florida
upon her leaving that port; and that France, having resolved to treat
this vessel as a regularly commissioned ship-of-war, could not and
would not permit this to be done. He said that the rule which requires
that the vessel first leaving shall have twenty-four hours the start must
be applied. To avoid the difficulty which he said must inevitably
follow a disregard of this rule by Captain Winslow, he requested me to
communicate to him the determination of this Government, and apprise
him of the necessity of complying with the rule. Inasmuch as nothing
was to be gained by inviting the application of force, and increased
difficulties might follow that course, I have communicated to Captain
Winslow the letter of which I herewith send you a copy.
“ M. Drouyn de l’Huys furthermore informed me that this Govern-
ment, after much conference (and, I think, some hesitation), had
concluded not to issue an order prohibiting an accession to the crew of
the Florida while in port, inasmuch as such accession was necessary to
her navigation. They had made inquiries, it would seem, and said they
had ascertained that the seventy or seventy-five men discharged after
she came into Brest were discharged because the period for which they
had shipped had expired. He said, furthermore, that it was reported
to him that the Kearsarge had likewise applied for some sailors and a
pilot in that port, as well as for coal and leave to make repairs, all
of which had been, and would be, if more were needed, cheerfully
granted.
“ I told him I was quite confident the Kearsarge had made no
attempt to ship a crew there, and that as respects a pilot, that stood on
ground peculiar to itself, and had no reference to the general
principle.
'The determination which has been reached by the French
authorities to allow the shipment of a crew, or so large a portion of
one, on board of the Florida while lying in their port, is, I think,
wrong, even supposing that vessel a regularly commissioned ship-of-
war. I told M. Drouyn de l'Huys that, looking at it as a mere lawyer,
and clear of prejudices which my official position might create, I
thought this determination an error. He said, however, that in the
conference they had reached that conclusion unanimously, although a
majority of the Ministry considering the question were lawyers.”—The
same to the same, 21st October, 1863.
SINKING OF THE FLORIDA.
433
was in the neighbouring port of Cherbourg. Both the Chap. XV.
Confederate vessels left the shelter of French waters about
the same time, the Kearsarge (which had been watching
them) being absent from her station. The Georgia, in
May 1864, found her way into Liverpool, where she was
dismantled and sold. The Florida ended her career in
October 1864, at Bahia, where she was attacked, whilst
lying under the guns of a Brazilian battery and under
the broadside of the guard-ship, by the United States'
steamer Wachusetts. The attack was made before day-
break, most of the Florida's crew being ashore on
leave; the vessel was easily overpowered, towed out to
sea by the Wachusett$, and brought into Hampton
Roads. Here she went to the bottom, under circum-
stances which are thus stated by Mr. Seward in an
official communication to the Brazilian Chargé
d'Affaires :-
“While awaiting the representations of the Brazilian Government,
on the 28th November, she sank, owing to a leak which could not be
seasonably stopped. The leak was at first represented to have been
caused, or at least increased, by collision with a war transport.
Orders were immediately given to ascertain the manner and circum-
stances of the occurrence. It seemed to affect the army and navy.
A naval court of inquiry and also a military court of inquiry were
charged with the investigation. The naval court has submitted its
report, and a copy thereof is herewith communicated. The military
court is yet engaged. So soon as its labours shall have ended, the
result will be made known to your Government. In the meantime
it is assumed that the loss of the Florida was in consequence of
some unforeseen accident, which casts no responsibility on the Govern-
ment of the United States."
+
The restitution of the ship having thus become im-
possible, the President expressed his regret that the
sovereignty of Brazil had been violated, dismissed the
Consul at Bahia, who had advised the offence, and sent
the commander of the Wachusetts before a court-
martial.
The Shenandoah, which hoisted her flag at Porto
Santo in October 1864 under the circumstances already
2 F
434
CRUISE OF THE SHENANDOAH.
Chap. XV, described, put in at Melbourne in January 1865, and
obtained permission to remain a few days for necessary
repairs. The permission to repair was soon afterwards
suspended, when information reached the Governor that
she had men on board who had joined her at the port.
Her commander denied this, but had subsequently to
admit it, declaring at the same time that they were
there without his knowledge, and in concealment, and
had been turned out as soon as discovered. The four
sailors referred to had in fact come ashore, and three
of them were committed for trial. The Shenandoah
contrived, however, when she sailed in February, to
carry away a considerable number of men who had
come on board during the previous night in the character
of “stowaways”—that is, as persons who secrete them-
selves in the hold of a ship before she leaves port--and
of whose presence Captain Waddell probably remained
in convenient ignorance till they were fairly at sea, when
they were all put upon the ship’s books. She proceeded
to the Arctic Ocean, where she continued to be employed
in capturing and destroying American whalers until her
commander learnt, late in the summer, that the Con-
federate Government had ceased to exist, and that the
war was at an end. He then returned unmolested to
Liverpool, where he arrived on the 6th November.?
1 See Affidavit of W. A. Temple, sent by Mr. Adams to the Earl of
Clarendon, 28th December, 1865.
Captain Waddell (who appears to have been an officer of great
self-possession) notified his arrival to the Government in the following
letter to the Secretary of State for Foreign Affairs :-
"My Lord,
“Shenandoah,' November 6, 1865.
"I have the honour to announce to your Lordship my arrival in
the waters of the Mersey with this vessel, lately a ship-of-war under
my command, belonging to the Confederate States of America.
“The singular position in which I find myself placed, and the
absence of all precedents on the subject, will, I trust, induce your
Lordship to pardon a hasty reference to a few facts connected with the
cruise lately made by this ship.
“I commissioned the ship in October 1864, under orders from the
2
CORRESPONDENCE.
435
The vessel was taken in charge by the commanding Chap. XV.
officer of Her Majesty's ship Donegal, and, on the
request of the American Government, was handed over
to the American Consul.
The Shenandoah and her proceedings became the
subject of an animated correspondence between the two
Governments, which was prolonged even after her sur-
render. The American Government continued to insist
that she had never ceased to be an English ship, that
the hostilities which had been committed on board of
her were therefore acts of piracy, that she ought not
to have been admitted into the harbour of Melbourne,
and that Captain Waddell and his crew ought to have
been prosecuted as pirates. The Government of Great
Britain continued to maintain that these views were
'opposed either to universally acknowledged principles
Naval Department of the Confederate States; and, in pursuance of
the same, commenced actively cruising against the enemy's commerce.
My orders directed me to visit certain seas in preference to others; in
obedience thereto I found myself in May, June, and July of this year
in the Okhotsk Sea and Arctic Ocean. Both places, if not quite
isolated, are still so far removed from the ordinary channels of com-
merce that months would elapse before any news could reach there as
to the progress or termination of the American war.
In consequence
of this awkward circumstance I was engaged in the Arctic Ocean in
acts of war as late as the 28th day of June, in ignorance of the serious
reverses sustained by our arms in the field, and the obliteration of the
Government under whose authority I had been acting.
“This intelligence I received for the first time on communicating
at sea, on the 2nd of August, with the British barque Barracouta,
of Liverpool, fourteen days from San Francisco. Your Lordship can
imagine my surprise at the receipt of such intelligence, and I would
have given to it little consideration if an Englishman's opinion did not
confirm the war news, though from an enemy's port. I desisted
instantly from further acts of war, and determined to suspend further
action until I had communicated with an European port, where I
would learn if that intelligence were true. It would not have been
intelligent in me to convey this vessel to an American port for
surrender simply because the master of the Barracouta had said the
was ended. I was in an embarrassing position; I diligently
examined all the law writers at my command, searching a precedent
war
2 F 2
436
CASE OF THE SHENANDOAH.
Chap. XV. of law, or to notorious and indisputable facts: to
universally acknowledged principles of law, if Mr.
Seward means to contend that the commander and crew
of a vessel, commissioned as a public ship-of-war by a
revolutionary Government which has been recognized
as a belligerent Power by neutral nations, can be charged
in a neutral country with piracy, merely for capturing
and destroying the ships of the other belligerent; to
notorious and indisputable facts, if he means to deny
that the Sea King was transferred and delivered by her
former British owners and commander to agents of the
Confederate States, by whom she was purchased in order
that she might be employed and commissioned by and
in the service of those States, or that she was actually
so employed and commissioned as a public ship-of-
under the name of the Shenandoah from a period an
for my guidance in the future control, management, and final disposal
of the vessel. I could find none. History is, I believe, without a
parallel.
“Finding the authority questionable under which I considered this
vessel a ship-of-war, I immediately discontinued cruising, and shaped
my course for the Atlantic Ocean.
“As to the ship’s disposal, I do not consider that I have any right
to destroy her, or any further right to command her. On the contrary,
I think that as all the property of Government has reverted, by the
fortune of war, to the Government of the United States of North
America, that therefore this vessel, inasmuch as it was the property
of the Confederate States, should accompany the other property
already reverted. I therefore sought this port as a suitable one
wherein to learn the news,' and, if I am without a Government, to
surrender the ship with her battery, small arms, machinery, stores,
tackle, and apparel complete to Her Majesty's Government for such
disposition as in its wisdom should be deemed proper.
“I have, &c.
(Signed)
“ JAMES J. WADDELL."
The truth of Captain Waddell's assertion, that his first information
of the overthrow of the Confederacy was gained from the Barracouta,
was disputed; and there was some evidence that he continued to make
captures after report of it had reached him from one of the whaling
vessels which he destroyed.
GENERAL REMARKS.
437
cedent to the first capture made by her down to the Chap. XV.
close of the war. It cannot be too distinctly under-
stood,” added the Earl of Clarendon, " that no charge of
piracy could possibly be preferred or entertained against
this vessel under these circumstances by Her Majesty's
Government or in the Courts in this country, unless it
had been satisfactorily shown that this ship wilfully
continued to seize and destroy United States' vessels
after she was apprised of the termination of the war.
And it was observed that “Mr. Adams's request for the
delivery of the ship to the United States' Government
could neither have been made nor complied with, except
upon the ground that she was, in the circumstances which
had happened, the lawful property of that Government.
If she had been British-owned, as Mr. Seward now
desires to represent, the Government of the United
States could have had no possible claim or title to her,
even though she might have been guilty of piracy, nor
could the Crown of Great Britain have acquired any
title to or disposing power over her, by means of any
surrender of Captain Waddell in the port of Liverpool,
or by any other means short of a regular forfeiture and
condemnation by process of law.”
It must be reckoned a remarkable circumstance that
no Confederate cruiser which extended its operations
beyond the immediate neighbourhood of the American
shores ever fell in with a Federal man-of-war on the high
seas.
To any Englishman, I should think, it must be
an irksome and unpleasant task to tell the story
which has been told in this and the two preceding
chapters. The various contrivances by which these
vessels were procured and sent to sea were discreditable
to the Confederate Government, and offensive and
injurious to Great Britain. Such enterprises were,
and were known to be, calculated to embroil this
country with the United States; they were carried
438
GENERAL REMARKS.
Chap. XV. into effect by artifices which must be accounted un-
worthy of any body of persons calling themselves a
Government-of any community making pretensions
to the rank of an independent people. Every trans-
action was veiled in secresy, and masked under a
fictitious purchase or a false destination. By such
devices it was intended, no doubt, to escape the notice of
a vigilant and powerful enemy; but it was also intended
to blind the eyes of the Government of Great Britain.
Nor will any one attempt to dispute that the success of
these projects was extremely annoying and irritating
to the American Government and people. It is true, as
they have constantly repeated, that the ships were
procured in England; it is true that they were armed
from England; it is true that of the crews which
manned them, a large proportion were British subjects.
It is true also that they severely harassed American
shipping, and inflicted heavy losses on American trade.
All this is true. What is not true, I think, is that
for these losses the British nation is justly responsible.
CHAPTER XVI.
Questions which arose within the United States as to the Treatment of
Foreigners resident there.--Arbitrary Arrests.-Claim to Exemp-
tion from Compulsory Military Service. Principles on which these
Questions were dealt with by the British Government. Observa-
tions.
CIVIL war is stern and exacting. It demands extra-
ordinary sacrifices, imposes galling and unusual restraints,
justifies or excuses exertions of power which in ordinary
times would be oppressive and tyrannical. The pressure
of this great calamity, always more or less unequal, has
some peculiar aggravations in a country containing a
large population of foreign birth, whose plans of life are
yet unsettled, or whose attachment to their new country
is but half-formed, and to whom it is still something less
than a home. Many of these may be expected to bear
with impatience hardships for which they were little pre-
pared, for the sake of a cause which they scarcely feel to
be their own; and troublesome and difficult questions
are likely to arise in respect of persons whose original
nationality is regarded by the law, or by themselves, as
not yet exchanged, or not completely exchanged, for a
new one. During certain periods of the war such ques-
tions sprang up in abundance; but, being handled very
prudently, in a spirit of forbearance and moderation,
they never grew really importunate or formidable. These
questions fell mainly into two classes; they related either
to arbitrary severities alleged to have been inflicted on
British subjects, or to the liability of British subjects to
military service. And in connection with each class of
440
QUESTIONS WITHIN UNITED STATES.
Chap. XVI. cases it sometimes became necessary to consider who
were, or ought to be regarded as being, British subjects.
The general principles which should govern questions
of this kind are not difficult to state, nor are they very
difficult of application. A foreigner must take the law
as he finds it; and he must submit, whilst he remains in
a country not his own, to any exceptional legislation
which temporary circumstances may require. It is not
for him, nor for any foreign Sovereign, to judge whether
these laws are necessary or just; he must obey them, be
they never so unjust or unnecessary; all that he can fairly
insist on is that, when any material change is made in the
legal condition of the class to which he belongs, he
should be allowed a reasonable time to withdraw. From
any illegal exercise of force, on the part of the Executive
Government or its officers, he has a right to be free, in
common with all other persons who, like him, are under
the control and protection of the laws; and, if this right
be violated, the Sovereign to whom his allegiance is due
may interpose, by remonstrance or otherwise, on his
behalf. But the interposition of a foreign Sovereign for
such a purpose in times of civil commotion should be
sparing and cautious; for he is seldom able to judge
whether that necessity which is always pleaded in excuse
for an unlawful stretch of power really exists or no; and,
where citizen and alien are treated alike, this, in any
country accustomed to the reign of law and order, is a
real though imperfect guarantee that the alien has not
suffered, and will not suffer, any great and substantial
injustice. It is commonly better, therefore, to leave the
foreigner to take his chance with the citizen.
During the earlier stages of the conflict, the Federal
Executive assumed the power to suspend at pleasure the
ordinary legal securities for personal liberty in the States
which adhered to the Union. Persons suspected of dis-
affection, against whom no overt act of treason could be
proved, were arrested by soldiers, without any legal
MILITARY ARRESTS.
441
Chap. XVI.
warrant, on the order of the Secretary of State or of the
General commanding the district, thrown into military
prisons, and kept in confinement without being brought
to trial till it was thought safe to release them. Writs
of habeas corpus were issued by the Courts, but the mili-
tary authorities were ordered to disobey them; in one
instance, an attorney who had served the writ was
imprisoned, and the judge who had issued it found a
sentinel posted at his door. A sharp controversy arose
respecting the legality of these proceedings. The Chief
Justice of the Supreme Court, who had ordered an
attachment to issue against the military commandant of
Fort M'Henry for disobedience to such a writ, composed
an elaborate paper in condemnation of them, which was
met by the Attorney-General with a not less elaborate
defence. It was affirmed that power to suspend in case
of emergency " the privilege of the writ of habeas corpus"
was entrusted by the Constitution to the President; that
he was sole judge of the question whether there was an
emergency; and that, in the event of invasion from
abroad or rebellion at home, he might declare, or
exercise, or authorize, martial law at his discretion. In
England—where it is a settled constitutional principle
that these tremendous powers are reserved to the
supreme legislature, and that the assumption of them
by the Crown, without legislative authority, would,
under any circumstances, require an Act of Indemnity-
these doctrines were received with some surprise, which
did not disappear when they were compared with the
· text of the Constitution.
Among the persons arrested there were some - I
believe, very few—who proved to be British subjects.
They protested that they were innocent, and appealed
for redress to the British Legation; and Lord Lyons was
directed to make representations on their behalf. But
the British Government wisely forbore to press its remon-
strances, on finding that constitutional authority was
442
SUSPENSION OF HABEAS CORPUS.
1
hap. XVI. claimed, rightly or wrongly, for acts which were
alleged at the same time to be necessary for the public
safety
Where the power of imprisoning on suspicion is
exerted freely, and is entrusted to soldiers, there will
always be individual instances of harshness and injustice.
But there is no reason to believe that it was exercised
on the whole with excessive severity by President
Lincoln's Government. It was enforced chiefly in the
Border States, and especially in Maryland, a State in
which disaffection abounded, and which was close both
to the seat of Government and to the theatre of war:
and the proceedings in Congress during 1861 and 1862
show that it had the support of public opinion. In
February 1862 the President issued a general order
directing “ that all political prisoners or state prisoners
now held in military custody be released, on their
subscribing to a parole engaging them to render no
aid or comfort to the enemies in hostility to the United
States. The Secretary will, however, at his discretion,
except from the effect of this order any persons detained
as spies in the service of the insurgents, or others whose
release at the present moment may be deemed incom-
patible with the public safety.” “Although," wrote
Lord Lyons, in the following April, “ the power to
make political arrests has not been formally renounced
by the Executive Government, it has not, so far as I
nance.
General,
1 The members of the Maryland Legislature were arrested by
wholesale, in order to prevent them from passing a Secession Ordi-
(Macpherson's Political History of the Rebellion, p. 153.) On
this occasion the Secretary of War sent the following directions to
General Banks :
“War Department, September 11, 1861.
“The passage of any Act of Secession by the Legislature of Mary-
land must be prevented. If necessary, all or any part of the members
must be arrested. Exercise your own judgment as to the time and
manner, but do the work effectually.
Very, &c.
(Signed) “SIMON CAMERON, Secretary of War.”
ENFORCED MILITARY SERVICE.
443
know, been recently exercised. I am not aware of Chap. XVI.
any British subject being now arbitrarily detained as
a political prisoner. Arrests without form of law are
still made by the military authorities in places occupied
by the forces of the United States, but they appear to
be confined in general to persons accused of offences
affecting, more or less, the discipline or the safety of the
army.” But the difficulty experienced in enforcing
drafts for the militia, with various other circumstances,
led to repeated orders suspending the privilege of the
writ at different times and in different parts of the
Union; and an Act of Congress, passed in March 1863,
set the question of constitutional law at rest by expressly
investing the President with the disputed power, and
providing that orders previously made by him or under
his authority should be a defence to any proceedings,
civil or criminal, on account of acts done under them.
The claim made by British subjects, throughout the
States, to be exempt from compulsory military service
gave far more trouble to the British Legation.
It is a reasonable principle that a resident foreigner,
who, though not a citizen, is admitted to the enjoyment
of ordinary civil rights, should be held bound to dis-
charge the duties which ought to accompany them ;
should give his aid, if called upon, in the administration
of justice, and contribute to the maintenance of order,
and to the defence against foreign invaders of the
country to which he is indebted for shelter and protec-
tion. That he should not be forced to serve personally
in the regular army is, on the other hand, reasonable;
because this might prevent him from quitting the
country at pleasure, and might compel him not only
to risk his life for objects in which, as a simple resident,
he has really no concern, but to incur the penalties of
treason by bearing arms against the State to which his
allegiance is due. The second of these two reasons does
not apply to compulsory service in a mere civil war. But
444
AMERICAN LAW OF NATIONALITY.
Chap. XVI. civil war is, as its name imports, a war among citizens,
for political objects; and persons who have the rights of
residents, but have not the rights or the attachments of
citizens, may reasonably excuse themselves from taking
part in it. The protection which the Union afforded to
a mere resident, bound to the country by no permanent
ties, was not enough to warrant a demand that he
should be ready to shed his blood for the re-conquest
of the South. The Federal Government evinced
no disposition to dispute this proposition, as a general
rule. And had the American law of nationality repre-
sented with exactness-a thing perhaps impracticable-
the true theory of nationality; had it defined with
precision the rights of citizenship, and conferred those
rights on all persons permanently settled in the country,
and on them alone; the only question which could have
arisen was the question of fact, whether any given
person, for whom exemption was claimed, was or was
not in fact permanently settled in the United States.
American law, however, like the law of England and of
most other countries, requires for the naturalization of
a foreigner something more than the acquisition of an
American domicil; it requires also that he shall have
formally adopted American nationality, and have been
admitted by public authority to the enjoyment of it;
and it further exacts, with a view to make sure that the
act is bona fide and deliberate, that he shall have resided
five years at least within the United States, and that his
intention to become an American citizen shall have been
solemnly and publicly declared no less than three years
in advance. At the same time a man may in some
parts of the Union (chiefly the newly-settled States,
which desire to attract emigrants) acquire the right to
vote for members of Congress, without being himself
an American citizen, after a short term of residence.
1
1 The Constitution provides that, as respects elections to the House
of Representatives, “ the electors in each State shall have the qualifi-
CLAIMS FOR EXEMPTION.
445
Thus whilst, on the one hand, the line of demar- Chap. XVI.
cation between citizens and aliens is less sharply
traced in America than in most other countries, since
political as well as civil rights may be exercised by an
alien, there are always in America a great number of
persons who have publicly chosen it as their country,
but whose title to citizenship has not yet ripened by
lapse of time. The reason why these peculiarities of
American law have been noticed in this place will be
presently seen.
No. sooner had the war begun than the British
Consulates became crowded with persons anxious to
register themselves as British subjects, in the hope of
obtaining exemption from service. Many of these were
Irish emigrants. Many had already made a public
declaration of their intention to become American
citizens, and were only waiting till lapse of time should
have perfected their title. In answer to a request for
instructions on this head, made before the outbreak of
the war, Lord Lyons had been told that “there is no
principle of International Law which prohibits the
Government of any country from requiring aliens resi-
dent within its territories to serve in the militia or police
of the country, or to contribute to the support of such
establishments. If, however, the militia were to be
embodied for active service, and substitutes were not
permitted, “ the position of British subjects would
appear to deserve very favourable consideration, and to
call for every exertion being made in their favour on the
part of Her Majesty's Government." In July 1861,
Lord Lyons again asked for instructions, and was in-
formed that--although the Queen's Government might
well be content to leave British subjects, voluntarily
cations requisite for electors of the most numerous branch of the
State Legislature.” This political franchise, therefore, is more or less
extended according to the laws of the State in which the voter
resides.
446
CLAIMS FOR EXEMPTION.
i
Chap. XVI. domiciled in a foreign country, liable to all the obli-
gations ordinarily incident to such foreign domicil)
including (when imposed by the municipal laws of such
country) service in the militia or national guard or local
police, for the maintenance of internal peace and order,
or even, to a limited extent, for the defence of the
territory against foreign invasion--it could not reasonably
be expected to allow its subjects to be compelled to
serve in a civil war, and thus to run the risk of being
treated as traitors and rebels in a quarrel in which, as
aliens, they had no concern.
Until the summer of 1862 no demand was made upon
the services of the militia, beyond the 75,000 men called
out at the commencement of the war. But in July 1862
an Act was passed providing for the enrolment of the
militia, which was to include all able-bodied citizens
between the ages of eighteen and forty-five; and on the
5th August the President ordered a draft of 300,000 men.
On the 8th, orders were issued prohibiting persons liable
to the draft from quitting the country; and these were
enforced by numerous arrests. At the request of
Mr. Stuart, then in charge of the British Legation,
instructions were given that no restraint should be
imposed on mere travellers not resident in the United
States. Much inconvenience, however, ' was appre-
hended from the uncertainty which appeared to exist
as to the exact status of resident aliens in different parts of
the Union; and Mr. Percy Anderson, a member of the
Legation, was desired by Mr. Stuart to proceed to the
West and endeavour to make such arrangements with
the Governors of the Western States as might secure
reasonable protection to British subjects. He was every-
where received by the authorities with great frankness
and: cordiality, and succeeded in removing the chief
difficulty which had arisen, by establishing an under-
standing that affidavits sworn before a notary public
should be accepted as evidence of British nationality
MR. ANDERSON'S REPORT.
447
where a Consular certificate could not be obtained. Chap. XVI.
The following extracts from his Report will show the
state of things with which he had to deal:
s
“The necessity for immediate action has diminished, as there is now
little piospect of a draft being enforced for the present; but from the
state of feeling which I found to exist, it appears to me of great
importance that the exemption should be claimed at a time when a draft
is not imminent. It was for this reason that I urged upon the Governor
of Illinois the appointment of officers to consider claims of exemption
with as little delay as possible. When I visited Ohio and Indiana a
draft was supposed to be imminent, and large numbers of British sub-
jects were claiming exemption, which was causing considerable excite-
ment and ill-feeling. As it became evident that the prospect of the
draft was growing more distant, the excitement cooled down; and as
the majority of the British subjects in those States have, probably, now
obtained their exemption papers, and the machinery for doing so is in
working order, it is not likely that this state of things will recur, except
under exceptional circumstances, such as have recently occurred in
Cincinnati. In Missouri the State Militia was suddenly called out,
causing a rush for protection papers on the part of British subjects,
principally Irishmen of the lower classes; and such was the public
indignation that serious riots would have ensued, but for the exertions
of Mr. Wilkins to preserve order, and the cordial support which he
received from the military authorities. When, however, the claims for
exemption are once admitted, the danger will be very much lessened,
and a great cause of popular irritation removed.
“In Kentucky I found that somewhat different measures were
required. The State was under martial law, and was the seat of war;
the persons and property of British subjects were therefore exposed to
constant danger, and it was evident that it was necessary for them to
have in their possession evidence of their nationality, which could be
produced at any moment on an emergency arising. The danger of
being included in a draft was one of the least perils to which they were
exposed. On consultation with the authorities and the principal
British residents, I found that a machinery existed in the State which
appeared to me admirably adapted to the purpose. The Judges presid-
ing over the various County Courts were represented to me as being
generally men of intelligence and ability, who could be relied upon
for sifting impartially evidence brought before them as to nationality.
On proof being given, certificates would be issued by the Courts in
their character of Courts of Record, with the seal of the Courts
affixed, stating that satisfactory evidence had been deposited in the
Court that the person named in the certificate was a foreigner, never
having forfeited his original allegiance. As these papers would be
issued by Courts whose authority was equally recognized by the
448
CLAIMS FOR EXEMPTION.
Chap. XVI. Federals and Confederates, there would appear to be reasonable proba-
bility of their being respected by both parties. I therefore, with the
approval of the authorities, recommended British subjects in the State
of Kentucky to procure certificates of this character, and I stayed long
enough in the State to satisfy myself that the arrangement worked
well.
*
*
*
*
1
Memphis I found in a purely exceptional position. The town was
under strict martial law, and the action of all the ordinary Law Courts
was suspended. But little Union feeling existed in the city, and the
Federal lines only extended in a radius of about 4 miles around it.
From the depredations committed by the Federal soldiers, and by the
roving bands of robbers and guerillas, there was but little security
either of life or property; strict measures had been adopted to secure
order and control trade, and British subjects were in a great state of
agitation and alarm.
“General Sherman, the military commander, expressed great
pleasure at my arrival, as he said that he was most anxious to respect
the rights of neutrals, but that in his position, being as he said in the
midst of enemies, it was absolutely necessary that he should be enabled
clearly to understand who were the persons in his district who were
entitled to immunities as bona fide subject of foreign Powers. He said
that there were many persons who had always been looked on as
citizens, though they might not have exercised the privileges, who for
purposes of their own wished to be so considered; that such persons
would conceal their nationality till it became absolutely necessary for
them to declare it in order to obtain immunity from obligations. He
said that he could not make himself responsible in such cases; that he
might be obliged to take sudden, prompt, and energetic measures, and
at such a time claims for exemption might be overlooked: but he added
that, if I could arrange any plan by which he might be enabled to
distinguish in quiet times between those who were and were not liable
to obligations he might find it necessary to impose, he would promise
me that he would pay the strictest respect to the rights of neutrals.
Upon my asking him what proof he would require of alienship, he
answered that he would be satisfied with a simple declaration; adding,
• My only wish is to secure that a man who now declares himself an alien
shall be henceforth so considered; that he shall declare himself openly;
if a citizen now claims immunities as an alien, he shall have them, but
I will take care that he shall not resume the privileges of citizenship at
his convenience.
“His views on the subject seemed to me just, and I therefore
prepared the inclosed notice in accordance with them. He said that the
arrangement perfectly met his wishes on the subject. I requested that
he would publish something in his own name which would suffice to
show his successors in his command that the arrangement was not
simply a suggestion emanating from me, but was made with his concur-
MR. ANDERSON'S REPORT.
449
.
rence.
To this he readily assented, and added the remarks which Chap. XVI.
appear at the end of the notice. I found that British residents were
pleased with the arrangement, and I arranged the details for carrying
it out with the Provost-Marshal. It was clearly understood that all
persons whose names appeared on the register would be considered
entitled to the same rights with regard to passes and trade as loyal
citizens, and to the immunities of aliens. Residents could have their
names added to the register after the expiration of the limited period,
on giving proof of their nationality, and explaining the reasons of their
delay in coming forward. This latter precaution was necessary in
consequence of there being ready access through the lines and to and
from the Southern States.
“From what I have hitherto learned I have reason to believe that
these arrangements are working well in the various States which I have
visited; they are, I trust, calculated to relieve our Consuls from an
amount of labour and responsibility which they could hardly support,
and to lessen the danger of irritation arising towards foreigners in times
of popular excitement.
“Certain points, however, still remain to be dealt with, arising from
the difficulty of drawing the line clearly between the definition of
citizens and aliens. I was somewhat surprised to find, as I wrote to
you at the time, that the Governor of Ohio considered that foreigners
who had merely declared their intention' to become citizens were as
much liable to the obligations of citizenship as if they had completed
the act of naturalization. I told him that Mr. Seward himself
had admitted the contrary; he said that if Mr. Seward would distinctly
say so, Governors must naturally submit to his view of the case,
but that pending such a declaration on the part of Mr. Seward
he must retain his own opinion. The letter from Mr. Seward to
you which appeared shortly afterwards in the papers set that point
at rest, and I had no further difficulty on the subject. In fact, I found
1 "Department of State, Washington,
"Sir, ,
“ August 20, 1862.
“ Having informally understood from you that British subjects who
had merely declared their intention to become citizens of the United
States had expressed apprehensions that they might be drafted into the
Militia, under the late requisition of the War Department, I have the
honour to acquaint you, for their information, that none but citizens are
liable to Militia duty in this country, and that this Department
has never regarded an alien, who may have merely declared his
intention to become a citizen, as entitled to a passport, and conse-
quently has always withheld from persons of that character any
such certificate of citizenship.
“I have, &c.
(Signed) " W. H. SEWARD."
2 G
450
CLAIMS FOR EXEMPTION.
Chap. XVI. it almost invariably admitted that the law was clearly on Mr. Seward's
side.
“A second point is with regard to the children of naturalized
British subjects. On this subject I found great diversity of opinion;
it is a very important one, and one which, if no understanding is come
to respecting it, may cause much trouble. Consul Wilkins, at St. Louis,
has been overwhelmed with letters asking for the opinion of Her
Majesty's Government on the subject.
“Such children may be divided into the following classes :
“1. Those born in the country. Respecting these there is no
difficulty.
“2. Those not in the country at the time of the naturalization of
their parents. These, I understand, are not claimed by the United
States' Government.
“3. Those in the country at the time of the naturalization of their
parents. When under age, it is claimed that they follow the nationality
of their parents, and this, it appears, is also the law of Great
Britain.
“ The difficulty arises when they attain their majority. The Natu-
ralization Laws of the United States speak of this class in the
following words, in the Act of April 14, 1802, section 4:-
666 And be it further enacted that the children of persons duly
naturalized under any of the laws of the United States, or who, previous
to the passing of any law on that subject by the Government of the
United States, may have become citizens of any one of said States,
under the laws thereof, being under the age of twenty-one years at the
time of their parents being so naturalized or admitted to the rights of
citizenship, shall, if dwelling in the United States, be considered as
citizens of the United States.'
“The question is whether this clause is to be understood as being
permissive or compulsory. An eminent lawyer in Missouri, with whom
I had a conversation on the subject, gave it as his opinion that it was
permissive, and that the children, on attaining their majority, had the
right of election. But the usual interpretation is that the clause is
compulsory; consequently, unless an authoritative decision can be
given on the point, complications will probably arise when the question
is no longer capable of being evaded.
“There is also a doubt on this point. If the child, on attaining his
majority, has the right of election, by what means does he make that
election known?
A third point on which difficulties are constantly arising is as to
how far the exercise of the elective franchise by British subjects is to
be considered as barring their right to exemption from military service.
In the majority of the States none but citizens have the right to vote;
foreigners, therefore, who exercise this privilege do so fraudulently,
and thereby clearly forfeit their immunities as aliens. But in some of
the Western States a different state of things exists. In Indiana all
MR. ANDERSON'S REPORT.
451
aliens are permitted to vote after one year's residence and declaring Chap. XVI.
their intention to become naturalized. This is also the case in Wiscon-
sin and, I believe, in Iowa. In Illinois, aliens who were resident in the
State previously to the adoption of the Constitution of 1847 have the
same privilege. In Kansas, aliens were specially invited to vote upon
the Constitution. The reason for the extension of these privileges to
foreigners in the above-mentioned States is the competition for immi-
gration. The power to vote at once is held out as a bait to induce
foreigners to settle. As the pressing want of immigrants disappears,
the relaxation in the alien laws are withdrawn, as in the case of Illinois
in 1847. It would seem, therefore, hardly just that these States should
offer certain privileges to aliens for the benefit of the States themselves,
and then should affix a penalty in a time of pressure to the exercise of
those privileges. It must be remembered, too, that in no States are the
aliens entitled to the full privileges of citizens. Though permitted to
vote, they are excluded from holding any office.
"I thought it safest, in my conversations with the Governors, to
take the ground that if an alien had exercised any of the exclusive
privileges of a citizen, he had rendered himself liable to the obligations
of citizenship; if he had exercised only those privileges which an alien
is entitled to exercise, he was still entitled to the immunities of alien-
ship. This appeared to me to be the only clear line that could be drawn,
and would exclude voters in all States in which aliens have not the
franchise.
“I found some difference of opinion on the point. The Governor of
Indiana was anxious to claim all voters; but, on the other hand, the
Lieutenant-Governor of Illinois stated that the view I have above given
was unquestionably correct, and that he should so instruct all his
officers. I have stated above that this gentleman expressed a belief that
the instructions he was about to issue would be generally adopted
throughout the Western States, and I hope, therefore, that this line will
be generally drawn.
“In conclusion, I should wish to observe that I met everywhere with
the most cordial reception, both on the part of the civil and military
Governors; that they expressed great pleasure at the prospect which
my visit appeared to give of a definite arrangement being come to on a
question which was the source of much annoyance, and gave me every
facility for procuring information and perfecting such arrangements as
I was enabled to make.”]
The case of persons who had voted at elections as
citizens of a State, not being citizens of the United
States, was afterwards made the subject of communica-
tions exchanged between the Ministers of Great Britain
1 Mr. Anderson to Mr. Stuart, 28th September, 1862.
2 G 2
1
452
EXEMPTIONS RESTRICTED.
Chap. XVI. and France and the American Government, but does
not appear to have been definitely determined. Lord
Lyons was finally instructed to advise all persons who,
after having voted or exercised any privilege of citizen-
ship, claimed exemption from service, to submit their
claim to the judgment of a court of law.
As to the question which had arisen respecting the
effect of a declaration of intention not followed by an actual
admission to citizenship, the opinion of the Secretary of
State had, as we have seen, been clearly expressed. But,
as the demands of the war increased, and the pressure of
the conscription on American citizens grew more severe,
this class also was drawn within the net. An Act of
3rd March, 1863, passed to provide for a further enrol-
ment of the militia, contained the following clause :-
"Be it enacted that all able-bodied male citizens of the United
States and persons of foreign birth, who shall have declared on oath
their intention to become citizens under and in pursuance of the laws
thereof, between the ages of twenty and forty-five years, except as
hereinafter excepted, are hereby declared to constitute the national
forces, and shall be liable to perform military duty in the service
of the United States, when called out by the President for that
purpose.”
Although the powers conferred by this Act were not
put in force until some time after it had been passed,
many applications were received by Lord Lyons from
persons apprehensive of being enlisted under it. He was
instructed to state to Mr. Seward that British subjects
who had simply declared their intention to become
American citizens at a future time, and had not yet
exercised the right of suffrage or any other political
franchise in consequence of such declaration, ought, in
the opinion of the British Government, to be allowed a
reasonable time after the passing of the Act to choose
whether they would quit the United States, or continue
resident therein under the liability now imposed on
them to compulsory military service. In compliance
FURTHER RESTRICTIONS.
453
.
with this representation, the President, on the 8th May, Chap. XVI.
issued a Proclamation, which, after reciting the first
clause of the Act, proceeded as follows :-
“ And whereas it is claimed by and in behalf of persons of foreign
birth within the ages specified in the said Act who have Loretofore
declared on oath their intentions to become citizens under wed in pur-
suance of the laws of the United States, and who have not exercised
the right of suffrage or any other political franchise i nder the laws of
the United States, or of any of the States thereof, are not (sic in orig.)
absolutely concluded by their aforesaid declaration of intention from
renouncing their purpose to become citizens, and that, on the contrary,
such persons, under Treaties or the law of nations, retain a right to
renounce that purpose and to forego the privileges of citizenship and
residence within the United States, under the obligations imposed by
the aforesaid Act of Congress :
Now, therefore, to avoid all misapprehensions concerning the
liability of persons concerned to perform the service required by such
enactment and to give it full effect, I do hereby order and proclaim
that no plea of alienage will be received or allowed to exempt from the
obligations imposed by the aforesaid Act of Congress any person of
foreign birth who shall have declared on oath his intention to become
a citizen of the United States under the laws thereof, and who shall be
found within the United States at any time during the continuance
of the present insurrection and rebellion, at or after the expiration of
the period of sixty-five days from the date of this Proclamation, nor
shall any such plea of alienage be allowed in favour of
any
such
person
who has so, as aforesaid, declared his intention to become a citizen
of the United States, and shall have exercised at any tine the
right of suffrage, or any other political franchise, within the United
States."
This Proclamation was considered to afford a reason-
able period for departure; and Her Majesty's Government
subsequently refused to interfere on behalf of persons
who had not taken advantage of the opportunity afforded
to them of leaving the country.
In February 1864, an Act was passed to provide for
a further enrolment. Under this Act all persons were
to be enrolled “who should declare their intention to
become citizens." It was further enacted-
“That no person of foreign birth shall, on account of alienage, be
exempted from enrolment or draft under the provisions of this Act
or the Act of which it is an amendment, who has at any time assumed
454
REMARKS.
19
Chap. XVI, the rights of a citizen by voting at any election held under authority
of the laws of any State or Territory, or of the United States, or who
Note.
has held any office under such laws or any of them; but the fact that
any such person has voted, or held, or shall hold, any office as aforesaid,
shall be taken as conclusive evidence that he is not entitled to exemp-
tion from military service on account of alienage.”
The British Government did not consider it necessary
to give Lord Lyons any instructions with regard to this
Act.
It will be remarked that, throughout these dis-
cussions, no difficulty appears to have been raised by
the British law of nationality. British, like American
law, has hitherto regarded the national character
acquired at birth as continuing uneffaced by any
length of residence in a foreign country and even by
permanent settlement abroad, and as not formally
effaced even by a foreign naturalization. But the
British Government has in practice, as we see, steadily
adhered to the principles that a British subject resident
abroad must submit to be governed by the laws of his
place of abode, be they what they may; and that the
question how far it is fair and just to impose on him against
his will any of the obligations of foreign citizenship, is
a question of circumstances, dependent mainly on the
extent to which he has practically assumed the position
of a citizen, or enjoyed the substantial advantages of
that character.
NOTE.
The statements of fact in this chapter have been largely borrowed
from a valuable memorandum drawn up by Mr. C. S. A. Abbott of the
Foreign Office, and appended to the Report of the Commissioners
appointed by Her Majesty in 1868 to inquire into the Laws of Natural-
ization and Allegiance. I subjoin, from the same source, some cases,
concisely stated, which may serve as illustrations.
1 A Royal Commission which reported in 1869 recommended an
an alteration of the law in this respect; and a Bill is now (February
1870) before Parliament for giving effect to this recommendation.
MISCELLANEOUS CASES.
455
“ Claim to British Protection of Minor Children of Naturalized Americans. Chap. XVI.
Note.
“In October 1861, a claim to British protection was set up by three
persons (who had been arrested at Baltimore) on the ground that they
were minors, natural-born British subjects, whose fathers had been
naturalized in the United States.
“A similar claim was urged on behalf of a Mr. James Hoy, a
merchant of New York.
"The United States Government declared that such persons were
American citizens, and Mr. Carlisle reported that, by the statute law of
the United States, minors in this position were regarded as American
citizens, and obtained and enjoyed in the United States all the rights and
benefits incident to that character.
“ Her Majesty's Government decided that minors who were born in
Her Majesty's dominions, but whose fathers had become naturalized
American citizens, ought during their minority to be considered and
treated as between the two Governments, not as British subjects, but as
American citizens, and that they must continue to be so considered if,
after attaining their majority, they had continued to remain domiciled in
the United States, and had not taken any active steps to absolve them-
selves from their allegiance to that country."
“Forced Military Labour.
“In November 1862, complaints were made of British subjects
being forced to work in the trenches in the military operations in the
Western States, and Mr. Stuart was informed that, as a general prin-
ciple of international law, neutral aliens ought not to be compelled to
perform any military service, but that allowance must be made for the
conduct of authorities in cities under martial law, and in daily peril of
attack from the enemy."
Confederate Conscripts taken Prisoners by United States.
“In January 1864 Her Majesty's Government had brought before
them the case of British subjects serving by compulsion in the Con-
federate armies, and taken prisoners by the United States' forces.
“Lord Lyons was instructed that an application for their release
could not be put on the ground of strict right, nor could Her Majesty's
Government consent to be a party to such persons being discharged
on taking an oath of allegiance to the United States, but that there
could be no objection to their being called upon to take an oath of
neutrality.”
" Cases of Hansard, Crutchett, and Gray.
“Mr. Joseph Hansard, a British subject, who had been for twenty-
five years a resident in Georgia, having applied to Lord Russell for
456
MISCELLANEOUS CASES.
Chap. XVI. protection, was told that, if he chose to return to the United States, he
must do so at his own risk.
Note.
“ Mr. Crutchett, a British subject, married and settled at Wash-
ington, having applied to Her Majesty's Government to procure redress
for injuries inflicted on his property by the United States' forces, was
informed that he must have recourse to the same remedies as any other
resident in the United States.
“ Mr. Gray, a British subject, having been taken in a blockade-
runner, was tried by court-martial and condemned to two years' im-
prisonment.
“ As he had been for many years a resident in the Southern States,
and had taken an active part on behalf of the Confederates, Her
Majesty's Government declined to interfere."
“ Status of Sons of Americans born in British Territory.
“ In the case of a person named Charles Cole it was decided, in
1864, that the children of American citizens born in British territory,
but being in American territory, could not claim the protection of
Her Majesty's Government to exempt them from American military
service."
“ Residents in Places under Martial Law.
" In July 1864 a question was raised as to the position of British
subjects residing at Memphis, then under martial law; and Lord Lyons
was instructed to inform them that Great Britain could not interfere
with the operation of that law in a foreign State, and that British
subjects who wished to secure British protection must discontinue their
residence in places under such military control.”
“ Enrolment in New Orleans Police.
“A general order was issued at New Orleans on the 30th July,
1864, directing neutral foreigners, not being subject to compulsory
military service,' to be enrolled as a local police; but Her Majesty's
Government did not see any reason to interfere.”
“ Case of Heslop, Boyle, Miss Hill, Jenkins, and Dr. Benson.
(1864 and 1865.)
“ Mr. Heslop, a British subject holding landed property in Virginia,
and who had been arrested at Baltimore, having requested British pro-
tection, Mr. Burnley, then Chargé d'Affaires, was informed that, as the
circumstances of the case showed Mr. Heslop's active connection with
the Confederates, it was not a case for interference.
" A similar decision was arrived at in regard to David Boyle, and
to a Miss Hill, arrested at New Orleans.
MISCELLANEOUS CASES.
457
“ Dr. Benson, a Canadian, applied for protection against being tried Chap. XVI.
by court-martial. As it appeared that he was domiciled in Kentucky
Note.
and was an army contractor, Her Majesty's Government left him to
the operation of the American law.”
“ Proclamation of Penalties on Aliens concerned in Blockade Running.
“ In March 1865 the President issued a Proclamation imposing the
penalty of confinement as prisoners of war upon domiciled aliens and
non-resident foreigners, who had been or should have been engaged in
violating the blockade, and making the continuance of any person
(who might afterwards be decided by martial law to fall within this
category) for twelve days in the United States a ground for his deten-
tion in military custody until the end of the war.
“ Lord Lyons was directed to remonstrate strongly against British
subjects being thus imprisoned.
" It does not appear that the Proclamation was enforced.”
CHAPTER XVII.
Course of the War.---Obstinate Resistance of the South.--Seizure
of the Chesapeake and other Ships.—The St. Alban's Raid.--
Popular Feeling in England.--France proposes Joint Mediation.
The British Government declines to concur.- Distress in the
English Cotton-manufacturing Districts.-Resentment of the South
towards Great Britain.-Fall of the Confederacy, and Conclusion
of the War. Assassination of President Lincoln. — Subsequent
Negotiations.
We have now passed in review the chief questions
which arose during the war, arranged partly in the
order of time, but principally in reference to their
connection with one another. Something remains to
be said of the struggle itself; of the colour which it
assumed as it wore on, and its final close; of the light
in which it was regarded in England, and the feelings
which her course of action excited in the Government
and people of the Confederate States.
The shock of arms on the Potomac and the events
which immediately followed it rudely dispelled the
illusion, cherished to the last moment in the South,
that the people of the North-who were thought to be
unwarlike, absorbed in the pursuit of gain, and largely
dependent for their wealth on Southern industry-
would recoil from the attempt to re-conquer a vast
territory and numerous population at the frightful cost
of a civil war. On the other side it had been hoped that
the same terrible calamity, when seen to be inevitable,
would daunt the courage of the revolted States; and
that the deep attachment to the Union which was
believed to animate all Americans would re-assert itself
COURSE OF THE WAR.
459
at the last extremity, and bring back the South to its Chap.XVII.
allegiance. This hope also vanished not less rapidly,
and with it the hallucination, real or assumed, which
discerned, or affected to discern, in the revolt a mere
ordinary sedition, a transient outbreak of turbulent
discontent. Then were seen in the most striking light
the sanguine self-reliance and unconquerable elasticity of
temperament, the capacity of thoroughly apprehending a
great public object, the resolute perseverance and cheerful
endurance of disaster and hardship, which are among
the features of the American character. The Federal
plan of action was simple in itself, though apparently
confused by the number of separate armies acting
independently of one another, by the great area over
which they moved, and by the circumstance peculiar
to America--that this area was parcelled out, not into
mere provinces, but into States, to each of which, apart
from the rest, its own population clung, and the re-con-
quest of which, one by one, was a matter of political as
well as military importance. To gain possession of the
Mississippi-to blockade the whole coast, cut off all
foreign trade, and occupy every assailable point on the
seaboard-to force back the Confederate armies from
the border, wrest from them Tennessee, and thus lay
open the heart of the Confederate dominion—to hem
them in by these means within a constantly narrowing
circle--above all to achieve the conquest of Virginia,
and strike a crushing blow at the political centre of
the Confederacy-these were the objects which the
Government of the United States kept in view from the
beginning, and which it attained slowly and painfully,
at an immense sacrifice of life, by dint of sheer weight
and perseverance. The country to be subdued was of
vast extent; a large part of it—broken, hilly, covered
with thick forest, and containing few considerable towns
presented peculiar difficulties to an invader; and
every natural advantage was turned to account by the
460
COURSE OF THE WAR.
Chap.XVII. hardihood and activity of the Confederates, and, more
than all, by the generalship of a very great soldier,
whose genius for war, joined to a pure and elevated
character, shed an extraordinary lustre over the defence
of the South. New Orleans surrendered in April 1862;
but it was not until the middle of the summer of 1863
that the last Confederate stronghold on the Mississippi
fell into the hands of the North. The struggle for
Kentucky and Tennessee was protracted nearly to the
end of the war, the Federal forces gaining ground inch
by inch with great difficulty, now winning battles, now
losing them. During three successive years, great armies,
the finest and most completely appointed that the North
could bring into the field, and commanded by the
Generals who had most distinguished themselves else-
where, were pushed forward against Richmond, only
to be defeated and driven back with heavy loss. In
October 1863 Meade was retreating before Lee over
the very ground on which M’Dowell had fought the
disastrous action of Bull Run more than two years
before. Twice the Confederates crossed the Potomac in
force, and two pitched battles were fought on Northern
soil—the first in Maryland, the second in Pennsylvania.
A powerful navy, created by unremitting exertion and
at great expense, hovered round the whole Southern
coast, and reduced almost every place that could be
attacked from the sea; but its strength was spent in
vain on Charleston and Wilmington, and Mobile con-
tinued to hold out to the last moment, though the forts
which protect the harbour were successfully assailed by
Farragut in August 1864.
The hostility of the South during this period grew
more angry and implacable; the military spirit which
the actual presence of war seems to awaken even in the
most phlegmatic races spread over the country like wild-
fire; and the sense of a common danger, of sacrifices
made and sufferings borne in common, worked its
OBSTINACY OF THE SOUTH.
461
natural effect in welding together the whole people, and Chap.XVII.
destroying every vestige of attachment to the Union.
The privations inflicted on rich and poor, the impoverish-
ment of families, the devastation which here and there
attended the passage of Northern armies, and the tre-
mendous carnage which incessantly thinned the forces
and drained the population of the revolted States, seemed
only to steel their resolution and inflame to the utmost
that bitter and unnatural animosity which is the peculiar
curse of civil war. Valuable property was everywhere
remorselessly destroyed, if there was a chance of its
falling into the hands of the Federal authorities; such
attempts as were made to revive peaceful industry and
commerce in the districts which they were able to hold,
appear to have entirely failed; and the Federal com-
manders, instead of being welcomed, as they had hoped,
in the places of which they gained possession, found
themselves received with dogged and undisguised enmity.
“We were 2,500 men,” wrote General Butler, describing
the state of New Orleans after its occupation in April
1862—“ We were 2,500 men in a city seven miles long
by two to four wide, of 150,000 inhabitants, all hostile,
bitter, defiant, explosive.” Alike effect, though to a
less degree, seems to have been produced in those Border
States, whose unhappy fortune it was to be overrun by
the contending armies. Mr. Anderson, writing in
October 1862, thus describes the state of feeling in parts
of the country visited by him :
“In Kentucky I found it generally admitted that a vote taken now
in the State would give a large majority for Secession, whereas it was
asserted that a few months ago it would have had precisely the opposite
result. When the Confederate troops held portions of Kentucky during
last winter and the early spring, previously to the evacuation of Bow-
ling Green, it is said that they were greatly disappointed at the want
of sympathy which they experienced. At the time when I was in the
State, and when the Confederate forces were again entering Kentucky,
large numbers of young men were flocking to join them, and it is
asserted that this time the Confederates have had no reason to complain
of their reception.
462
EXASPERATION OF FEELING.
Chap.XVII. “ In Tennessee and Arkansas I was assured by Federal officers of
high rank that the Union feeling which they had hoped to develope no
longer existed; and in Missouri it was calculated that four-fifths of the
State would vote for Secession. I believe, however, that other causes
have been at work to produce this result. The outrages committed by
the half-disciplined Federal troops on friend and foe alike have alienated
the former and embittered the latter, and have greatly contributed
towards producing the state of things which it is now too late to
remedy.
“ So many instances of this came under my own observation that
I cannot doubt that there is very great foundation for the statements
that are made on this head. At Memphis there was no security beyond
the immediate precincts of the town. The town itself was deserted,
no business of any sort being transacted; the stores were kept open
because it was so ordered by the authorities : if a store was closed, or
a private house left without occupants, an official at once took posses-
sion and leased the premises, to anybody who came forward, at a
nominal rent. Hence the inhabitants who wished to avoid this kept
up a show of business, but with no reality; not a ship lay at the
wharves, and not a waggon was to be seen in the streets.
“ The last year before the war Memphis exported 400,000 bales of
cotton; this year I am told not 2,000 have been shipped. This, how-
ever, is the natural result of the war; but in the surrounding country
houses were nightly broken open, property of every description stolen,
life sacrificed, and no attempt made to repress these excesses. As
Unionists and Secessionists fared alike, the former were driven to make
common cause with the latter, and to enter the Confederate ranks or to
join some of the guerilla bands with which the country swarmed.
“I had a good deal of conversation on this subject with an officer
who felt very strongly on the subject. He had done his utmost to
enforce respect for private property, and he assured me that, when by
this course he had restored confidence, he found that in both States
considerable Union feeling began to develope itself. A column of
Federal troops marched through Arkansas, destroying everything in
their track, pillaging houses, destroying plantations, carrying off slaves,
and committing even worse outrages. My informant said that follow-
ing up afterwards in a portion of this line, he found that the whole
Union feeling had disappeared. This account was corroborated by
some Arkansas planters whom I met at various times, and from whose
account the State seemed to have relapsed almost into a state of bar-
barism. My informant told me that his experience was the same; his
successors had given every license to their soldiers, and his Union
friends had disappeared.”
These feelings were exasperated still further by
President Lincoln's Proclamation of 1st January, 1863,
CASE OF THE CHESAPEAKE.
463
by which all slaves in the States or parts of States Chap.XVII.
deemed to be in revolt at the time were declared free;
an act, however, which did not produce the effects
apprehended from it, since the negroes remained quiet,
apparently content to let their future lot be decided
by the fortune of war. Meanwhile the hopes of the
Southern people were kept alive by the many vicissitudes
of the contest, and especially by the successes gained
over the Federal armies in Virginia ; and exaggerated
reports of the difficulties experienced by the Northern
Government in raising money and enforcing the drafts
for the militia encouraged the delusive expectation, to
which they tenaciously clung, that every fresh campaign
would be the last.
During the latter part of the war the character of the
Confederacy, which had suffered from the machinations
of its agents in Europe, was tarnished by other acts more
desperate and far more indefensible. A steamer, the
Chesapeake, carrying passengers and goods between
New York and Portland--a second, the Joseph Gerrity,
freighted with cotton from Matamoros — a third, the
Roanoke, running to New York from Havana -- and a
fourth, plying on Lake Erie, were seized and plundered
one after another, by small parties of Confederates,
who had paid their passage - money and gone on
board without attracting notice. The Chesapeake,
deserted by her captors, was found in an unfre-
quented bay on the coast of New Brunswick by a
Federal gun-boat, which took possession of her and
carried her into Halifax ; and a decree of the local
Vice-Admiralty Court afterwards restored her to her
owners, with so much of her cargo as had escaped
pillage. The Joseph Gerrity was navigated into
Belize in Honduras. The Roanoke, after an attempt
to obtain coal at Bermuda had been frustrated, was
burnt at sea; the Lake Erie steamer was scuttled, and
another small vessel, which she had been made instru-
1
464
THE ST. ALBAN'S RAID.
Chap.XVII. mental in taking, shared the same fate. In October 1864
a handful of desperadoes sallied from Canada into Ver-
mont, and met, at the little town of St. Alban's, another
party from Chicago, where the plan of the expedition
seems to have been laid. They mixed unsuspected with the
inhabitants, and at a favourable moment threw off their
disguise, made ineffectual attempts to set the place on
fire, robbed one or two banks of all the specie they could
find, and succeeded in re-crossing the frontier with their
booty. Several unarmed persons were killed or wounded
in these treacherous enterprises. Although they do not
seem to have been inspired by any meaner motive
than hostility to the United States, they were exploits
more worthy of straggling marauders than of men
engaged in fair and honourable warfare; and the perpe-
trators of them, had they fallen into the hands of the
Federal authorities, would have had no claim to be
treated as prisoners of war. That the neutrality of
Canada was not seriously compromised, was due to the
vigour and alacrity displayed by the local authorities, as
well as by the Canadian Government. The depredators
were arrested and stripped of their plunder ; a detec-
tive police, under special stipendiary magistrates, was
stationed along the border; and thirty companies of
volunteers were called out and embodied for permanent
duty. These measures were effectual in preventing any
renewed violation of the territory of the Dominion.
These occurrences gave rise, as was to be expected, to
1 “I think," wrote Lord Monck, “it is not a little creditable to the
volunteers, and to those who conducted the arrangements, that the
first intimation the force received that their services would be required
was by the General Order of 19th December, and that the three bat-
talions are now at their respective stations; some of the companies of
which they are composed having had to travel a distance of nearly 700
miles in order to reach their destinations. I have had offers of service
from various corps all over the province; and I should have had no
difficulty, were it desirable, in raising a large force.”—Viscount Monck
to Mr. Cardwell, 29th December, 1864,
POPULAR FEELING IN ENGLAND.
465
some correspondence between the British and American Chap.XVII.
Governments. The commander of the Federal gun-boat
which had been instrumental in recovering the Chesa-
peake had acted incautiously in not only seizing her
in British waters but boarding and searching a British
schooner which lay hard by, and taking out of her one
of the men concerned in the capture of the Chesa-
peake. The American Government censured and dis-
avowed these acts; and the President also disapproved
and revoked a departmental order, issued after the incur-
sion into Vermont, by which United States' officers had
been directed to pursue marauders, if necessary, across
the Canadian frontier. The failure, on the other hand,
of Mr. Seward's endeavours to obtain the extradition of
the persons who had taken part in these various enter-
prises became a subject of dissatisfaction and complaint.
In Europe, and by the English people in particular,
the progress of the contest was watched with varied
feelings. That the division of sentiment which had
armed a large section of the American people against the
remainder should be reflected in England, and that both
North and South should find sympathizers and partisans
here, was natural and inevitable. Opinion in England
had been generally more abolitionist than opinion in the
United States; and no one will now dispute that the
1 The reasons for this failure were tersely expressed by Mr. Justice
Blackburn, in the case of Patrick Ternan, who was arrested at Liver-
pool on a charge of having been concerned in the seizure of the
Joseph Gerrity :
“ The case is either one of piracy by the law of nations—in which
case the men cannot be given up, because they can be tried here -
is a case of an act of warfare, in which case they cannot be tried at all.”
The St. Alban's raiders (as they were called) were held in Canada
to belong to the second of these two classes. There was evidence that
their leader held a commission in the Confederate army. They were
arrested, but discharged on the ground of a supposed informality in
the warrant. Such of them as could be found were immediately
afterwards arrested again, and discharged, after lengthened argument,
for the reason above stated. A full report of the proceedings, compiled
by L. N. Benjamin, B.C.L., was published at Montreal in 1865.
or it
99
2 .
466
POPULAR FEELING IN ENGLAND.
Chap.XVII. existence of slavery in America was the true cause of the
war, created the dissensions which led to it, and inspired
the South with the fatal ambition to be independent.
But the war itself was not presented to Europe in the
light of a contest for the abolition of slavery, nor was it
such in fact: independence on the one side, the integrity
of the Union on the other, were its true, as they
were its avowed, objects. Had the Southern people
relinquished their project of independence, they would
certainly have been permitted to retain their slaves ; had
they been never so willing to abandon slavery, it is
equally certain that they would not have been suffered
to become independent. The average level of information
about American politics in England is no higher than the
average level of information about English politics in
America ; and in both countries opinion is liable to be
misled by merely incidental circumstances which can be
apprehended with ease, and by appeals to established
prejudice and unreflecting sentiment. The friends and
advocates in the North in this conflict were zealous and
very numerous: they spoke at public meetings, and wrote
freely and earnestly in the public journals. But there
were also many who, heartily detesting slavery, neverthe-
less thought the cause of the South just, and that of the
North unjust; and no one who mixed at the time with
different classes of men will dispute that this opinion was
assisted by the natural inclination to lean towards the
weaker side, the natural horror excited by accounts
of devastation and carnage, the natural admiration for a
striking display of courage and endurance.
assisted also by the idea, openly expressed by some and
warmly condemned by others, that the establishment of
an independent Southern Confederacy would be a fortu-
nate event for England and for the world. And these
opposing views were brought, as the war proceeded, into
sharper relief by a cause familiar in this country, and
which can hardly be unknown in the United States.
It was
POPULAR FEELING IN ENGLAND.
467
Party organization in England has a tendency to attract Chap.XVII.
to itself all floating opinions on political subjects,
and, by associating them with one or other of the two
great parties constantly opposed in Parliament, to give
them a hardness of outline and an apparent solidity they
would not otherwise have, and push them a little further
than they would probably advance if left to themselves.
Yet, whilst it does this, it tends also to correct extrava-
gances, since the Parliamentary action of each party is
controlled by its leaders, and the leaders of each either have
or hope to have the responsibilities of office and power.
Had sympathy with the South been the active, domi-
nant influence which Americans appear to suppose, the
British Government would certainly have deserved high
praise for steadfastly refusing to interfere on behalf of the
Confederates, or even to recognize them as independent.
But in truth it was so far from being dominant that any
English Government which should have determined to
interfere could not have retained office for a month, and
any Minister who was known to have proposed it would
have irretrievably ruined his own political career.
Several times during the first three years of the war,
attempts were made to obtain from Parliament some
expression of opinion favourable to the recognition of
the Confederacy; but not one of these was originated or
encouraged in either House by any man of political
influence, and every one of them was negatived or with-
drawn without a division,
The steadfast determination of the Government
neither to say nor do anything which could reasonably
be construed into an interference was tested in Novem-
ber 1862, when it was proposed by the Emperor of
the French that the Courts of France, Russia, and
Great Britain should tender their good offices to both
belligerents, in the hope of preparing the way for an
accommodation. M. Drouyn de Lhuys, in addressing
himself to the British Government, dwelt on the
2 H 2
A
468
PROPOSALS OF MEDIATION.
39
66
Chap.XVII. “ innumerable calamities and immense bloodshed "
which attended the war, and on the evils which it
inflicted upon Europe. The two contending parties, he
said, had up to that time fought with balanced success,
and there appeared to be no probability that the
strife would soon terminate. He proposed, therefore,
that the three Courts should join in recommending
an armistice for six months, during which means
might be discovered for effecting a lasting pacifi-
cation. The British Government declined to take part
in sucira recommendation, being satisfied that there was
no reasonable prospect of its being entertained by that
of the United States. Depend upon it, my Lords,"
said Earl Russell, addressing the House of Peers in
1863," that, if this war is to cease, it is far better that
it should cease by a conviction both on the part of the
North and on that of the South that they can never live
together again happily as one community and as one
Republic, and that the termination of hostilities can
never be brought about by the advice, the mediation, or
the interference of any European Power.”
It was about this time that the pressure of the
blockade on British industry was most severely felt.
Seldom indeed, if ever, has there been so striking an
example of the hardships which war may inflict on
neutrals remote from it, and innocent of all participation
in it, as the distress which then existed in the cotton-
manufacturing districts of England. In an earlier
chapter of this book we have seen how completely the
English cotton-manufacture had become dependent on
the supply of raw material from America, or rather how
it had been created and developed by the American
supply. >The average profits of the business were not
high; there has been a tendency (as has been already
observed) to reduce this scanty margin by outrunning
the demand; and a great contraction of the manufac-
turer's business, involving a loss of interest on capital
THE COTTON FAMINE.
469
invested and a depreciation of plant and machinery, was Chap.XVII.
likely to exhaust it rapidly, and sweep away the fund
available for the maintenance of the workman. To the
labourer, therefore, as well as to the millowner, cheap
cotton was a necessary of life; the cessation of the
supply was starvation to the one, and, if long-continued,
was ruin to the other. Cotton of average quality,' which
cost 7d. a pound at Liverpool in December 1858, and
a fraction less than ls. in December 1861, sold in
December 1862 for 24 d., and for 27 d. during the
corresponding month of 1863. The effect of this was to
throw out of work a vast and industrious population
accustomed to good wages, and to make them dependent
for a bare subsistence on the local rates and on public
charity Lin December 1862 half a million of persons,
condemned to enforced and miserable idleness, were
receiving relief from these sources-relief necessarily
scanty, painful to the recipients, and insufficient to save
them from many severe hardships and privations. This
state of things continued during the year 1863, though
the number of the unemployed gradually diminished.
Many left the district in search of other ways of gaining
a livelihood; many emigrated; many others found em-
ployment on public works, for which a loan was granted
out of the national exchequer. The total amount
expended, within the knowledge of the superintend-
ing Relief Committee, up to April 1863, was 1,853,3191.
Contributions flowed in abundantly from all parts of the
British empire and more than one shipload of pro-
visions sent from the United States bore witness to
the sympathy there felt for this great and unmerited
calamity, which was borne by the sufferers, for the
most part, with singular fortitude and uncomplaining
patience. As the war continued, supplies of cotton,
inadequate in quantity, and at greatly enhanced
prices, began to be drawn from other parts of the
1 Middling Orleans.
470
ANGER OF THE SOUTH.
Chap.XVII. world—from Turkey, Egypt, and above all from India.
The export of Indian cotton was trebled, and its value
increased fourfold; and the Bombay peasant became a
gainer by the disaster which had ruined the American
planter, and impoverished the English manufacturer and
artisan. The wants of his narrow existence could not at
first expand with his new wealth: it has been lately
stated on authority that ploughshares and the tires of
cart-wheels made of solid silver might at that time have
been seen in an Indian village. But the use of money
is soon learnt by a naturally thrifty race; and with the
money that flowed to the East in payment for raw
cotton, trees were planted, wells dug, fields irrigated,
and brick cottages built instead of wretched hovels, and
these marks of improvement yet remain. It may be
added that, heavy as was the loss occasioned by the
depression of this important branch of industry, it
appears to have affected but little the general prosperity
of Great Britain.
The immovable firmness of the British Govern-
paent was a bitter disappointment to the people of the
revolted States. They wished to be recognized as inde-
pendent in order that they might become so; and, in
proportion as it became more clear that their inde-
pendence was not actually achieved, and more doubtful
whether it would ever be secured at all, they the more
keenly resented the refusal. They had reckoned at first
with confidence on being able to command, in case of
need, the countenance and support of England, merely
as growers of cotton ;l they had afterwards tried to
1 “Without firing a gun, without drawing a sword, should they
make war on us, we could bring the whole world to our feet. What
would happen if no cotton was furnished for three years ? I will not
stop to depict what every one can imagine, but this is certain, England
would topple headlong, and carry the whole civilized world with her.
No, you dare not make war on cotton. No Power on the earth dares
to make war upon it-Cotton is king.”—Speech of Mr. J. H. Hammond,
in the Senate, 4th March, 1858.
RECALL OF MR. MASON.
471
tempt her by expatiating on the profits to be reaped by Chap.XVII.
opening the blockade. They had hoped to gain her by
means of her material interests; and, when she proved
unyielding, they inveighed against her as selfish, calcu-
lating, and inhuman. They affirmed that her neutrality
was not sincere, but warped in favour of the North. They
even contrasted the treatment received by Mr. Mason in
London, and the coldness and brevity of Lord Russell's
replies to his representations, with the greater courtesy
extended to Mr. Slidell at Paris.
Mr. Mason remained here as the authorized agent
of the Confederate Government until September 1863,
with the vague hope that some unforeseen turn of
events might yet shake the resolution and reverse the
policy of Great Britain. At the end of two years this
hope finally gave way, and he announced to Lord
Russell the termination of his mission:
Mr. Mason to Earl Russell.
“24, Upper Seymour Street, Portman Square,
"My Lord,
“ September 21, 1863.
“In a despatch from the Secretary of State of the Confederate
States of America, dated the 4th of August last, and now just received,
I am instructed to consider the commission which brought me to Eng-
land as at an end, and I am directed to withdraw at once from the
country
“The reasons for terminating this mission are set forth in an extract
from the despatch which I have the honour to communicate herewith.
The President believes that 'the Government of Her Majesty has deter-
mined to decline the overtures made through you for establishing by
Treaty friendly relations between the two Governments, and entertains
no intention of receiving you as the accredited Minister of this
Government near the British Court.
1 “ It is to be observed that, during the whole continuance of the
war up to this time, the British Government had acted with reference
to it in a spirit of selfish and inhuman calculation; and there is indeed
but little doubt that an early recognition of the Confederacy by France
was thwarted by the interference of that cold and sinister Governinent,
that ever pursues its ends by indirection and perfects its hypocrisy
under the specious cloak of extreme conscientiousness.”—Pollard's
First Year of the War, p. 347.
472
RECALL OF MR. MASON.
Chap.XVII.
6. Under these circumstances your continued residence in London
is neither conducive to the interests nor consistent with the dignity of
this Government, and the President therefore requests that you consi-
der your mission at an end, and that you withdraw with your Secretary
from London.'
“Having made known to your Lordship on my arrival here the
character and purposes of the mission entrusted to me by my Govern-
ment, I have deemed it due to courtesy thus to make known to the
Government of Her Majesty its determination, and that I shall, as
directed, at once withdraw from England.
“I have, &c.
(Signed) "J. M. MASON."
17
Darl Russell to Mr. Mason.
“Sir,
A
Foreign Office, September 25, 1863.
“I have had the honour of receiving your letter of the 21st instant,
informing me that your Government have ordered you to withdraw
from this country, on the ground that Her Majesty's Government have
declined the overtures made through you for establishing by Treaty
friendly relations, and have no intention of receiving you as the
accredited Minister of the Confederate States at the British Court.
“I have on other occasions explained to you the reasons which have
induced Her Majesty's Government to decline the overtures you allude
to, and which have hitherto prevented the British Court from recog-
nizing you as the accredited Minister of an established State.
“ These reasons are still in force, and it is not necessary to repeat
them.
“I regret that circumstances have prevented my cultivating your
personal acquaintance, which, in a different state of affairs, I should have
done with much pleasure and satisfaction.
“I have, &c.
(Signed) RUSSELL.'
“ Earl Russell," wrote the Confederate Secretary of
State shortly afterwards to Mr. Slidell, “ having declined
a personal interview with Mr. Mason, the latter, after
some time spent in an unsatisfactory interchange of
written communications, has been relieved of a mission
which had been rendered painful to himself and was
productive of no benefit to his country.”
The anger of Mr. Davis's Government fell soon after-
wards on the British Consuls resident in the South; and
they received a formal notification that they “could no
EXPULSION OF BRITISH CONSULS.
473
longer be permitted to exercise their functions, or even Chap.XVII.
reside, within the limits of the Confederacy.” The
warmth with which these officials had remonstrated
against the compulsory enlistment of British subjects
in the Confederate forces had given no little offence.
The other reasons assigned were, that it was a part
of their duty to receive instructions from a Minister
residing at Washington and accredited to the President
of the United States; and that the British Government
had lately dismissed one of them, who had suffered him-
self to be persuaded to send specie destined for payment
of interest on the public debt of the State of Alabama
from a blockaded port to London in a British ship-of-
war.
1 Lord Lyons's view of these complaints was thus expressed in a
despatch to Earl Russell, dated 20th November, 1862:
“Mr. Benjamin objects very strongly to the British Consuls in
the Southern States being under the orders of Her Majesty's
Legation at Washington. This objection does not appear to me
to be by any means unreasonable. I have indeed, as your Lordship
is aware, long been of opinion that the connection between this
Legation and the Consulates in the South was embarrassing and
inconvenient, with regard both to the Government of the United
States and to the de facto Government of the Confederate States.
Mr. Benjamin's complaint concerning the dismissal of Mr. Magee
by Her Majesty's Government is less reasonable. Mr. Magee was
dismissed for assisting persons in the Confederate States to export
specie from a blockaded port, and this was an act manifestly inconsis-
tent with his duty as the officer of a neutral Sovereign, and a flagrant
violation of the Queen's Proclamation. It is, not, however, surprising
that my endeavours to prevent Mr. Magee's committing this breach of
blockade should have increased the displeasure with which the Con-
federates viewed the connection between this Legation and the Southern
Consulates. Mr. Benjamin's dissertation on the duty of paying debts
may, indeed, be passed over, as entirely beside the question. I was of
course as desirous as any one could be that money due to British sub-
jects should be remitted to them; and I have ever been most anxious
to diminish in every possible way, not inconsistent with positive duty,
all the hardships inflicted on my countrymen by the blockade. But to
export specie from Mobile was a manifest breach of the blockade of that
port, and to send it through the blockading squadron in a British man-
of-war was a direct violation of the understanding with the United
474
CLOSE OF THE WAR.
Chap.XVII. Before the first six months of the war were over, it
must have been tolerably clear to the rulers of the
Confederacy that to achieve independence they must
rely on themselves alone. There is nothing, it is true,
in which persons engaged in a desperate struggle are so
likely to deceive themselves as the chance of obtaining
succour from abroad; but there is no reason to suppose
that they were under any actual delusion on this score,
and they well knew that any official recognition, unless
it led sooner or later to direct intervention in their
favour, would be of no real use to them, and could
indeed serve only to exasperate and embitter their
adversaries. War is a game of hard blows: he who
can strike hardest, and go on striking longest, wins.
When the spring of 1864 approached, there remained
little room to doubt that the Confederacy was being
overpowered, gradually but surely. The revolted States
west of the Mississippi, though still to a great extent
unsubdued, were wholly cut off from those on the
Atlantic; all Kentucky and Tennessee, though open
States' Government in virtue of which Her Majesty's ships communi-
cated with the blockaded ports. So long therefore as Her Majesty's
Consuls in the South were under my orders, it was undoubtedly my
duty to prevent their being concerned in any such proceeding. It so
happened that the Confederate authorities were, at the time, particularly
anxious to find the means of exporting specie, in order to pay for muni-
tions of war procured in Europe; and it appeared afterwards that they
had hoped that the British Government would allow Her Majesty's
ships to be employed to carry through the blockading squadron specie
sent in payment of purchases of this description made in Great
Britain. It was natural therefore that my attempt to prevent the
breach of blockade at Mobile, and the dismissal of Mr. Magee by Her
Majesty's Government for being concerned in it, should be regarded
with displeasure by the Confederates. It was of course equally my
duty to hinder the British Agents under my orders from committing
breaches of blockade, whatever might be the article to be exported, and
whatever reasons the belligerent whose ports were blockaded might
have for desiring the exportation of it. But it is not surprising that
this affair should have increased the susceptibility of the Confederates
with regard to the connection between this Legation and the Southern
Consulates."
CLOSE OF THE WAR.
475
to incursions from the south, were practically within Chap.XVII.
the Federal lines, and the Federal forces were posted
among the most easterly ranges of the rugged hill
country on the confines of East Tennessee, Georgia, and
Alabama. The State of Mississippi had been overrun
and in part laid waste. The area from which the Con-
federates were able to draw reinforcements and supplies
was thus reduced within comparatively narrow bounds,
and their armies were fast dwindling away.
Their
whole forces in May 1864 were reckoned at 220,000
men; but of these 50,000 were in Texas and the other
States west of the Mississippi; and the troops which
could be brought into the field for the defence of
Virginia, including those in the Shenandoah valley and
the garrison of Richmond, hardly exceeded 60,000. The
Federal army at the same date numbered in the aggre-
gate not less than 970,000 soldiers, of whom (deducting
those in hospital, on leave, and employed on detached
service) upwards of 662,000 were available for duty.
Including the reserves in and around Washington, there
stood in Virginia or on its outskirts, ready for the spring
campaign, more than 280,000 men. These huge masses
of troops were now under the supreme control of General
Grant, who commanded in person in Virginia, while in
Tennessee three armies were under the orders of his prin-
cipal lieutenant, Sherman, a bold and very skilful soldier. ?
The forces of the Union were thus gathered into
the hands of two leaders, capable of handling them as
they had never been handled before. Both were men of
iron determination, and thoroughly inured to war; both
saw clearly the object to be accomplished, and the way
to accomplish it. It is surprising that under such
circumstances the war should have lasted, as it did, for
twelve months longer. Yet, during all the rest of the
year 1864, Lee stood at bay in Virginia, foiling his assail-
>
1 These numbers are borrowed from Lieutenant-Colonel Fletcher's
History of the American War, vol. iii, chap. xi.
476
CLOSE OF THE WAR.
1
Chap.XVII. ants at every point, and inflicting on them tremendous
losses. But these losses could be repaired ; whilst his
own strength, which there were no means of repairing,
was broken down and exhausted by incessant fighting.
Meanwhile Sherman, descending into Georgia from the
hills, had fought his way to Atlanta, a town from which
the Confederates had been accustomed to draw their most
important supplies ; and, after destroying it, had marched
on Savannah, leaving the broad track along which his
three corps moved on parallel lines a waste behind him.
The
army which he had overpowered, instead of attempt-
ing to join or co-operate with Lee, turned northwards,
and was thenceforth of no more service to the Confede-
rate cause. By the 1st February he had commenced his
march through the Carolinas, in the face of a Confederate
force, swept up from various quarters and headed by an
excellent soldier, General Johnson, but only strong
enough to harass, without seriously obstructing, his
progress. As he advanced, Charleston and Wilmington
fell into his hands, with all the Atlantic seaboard. Of
the cities of the Confederacy there remained only Rich-
mond and Mobile; and the little army which still fought
bravely, without rest or relief, in the lines around the
Virginian capital became gradually hemmed in by over-
1 General Grant's plan of action was thus described by himself, in
a Report dated 22nd July, 1865:-“I was determined, first, to use
the greatest number of troops practicable against the armed force of
the enemy, preventing him from using the same force at different
seasons against first one and then another of our armies, and the possi-
bility of repose for refitting and producing necessary supplies for
carrying on resistance. Second, to hammer continuously against the
armed force of the enemy and its resources, until by mere attrition, if
in no other way, there shall be nothing left to him but an equal submis-
sion with the loyal section of our common country to the Constitution
and laws of our land. These views have been kept constantly in mind,
and orders given and campaigns made to carry them out. Whether
they might have been better in conception and execution, is for the
people who mourn the loss of friends fallen, and who have to pay the
pecuniary cost, to say.”
ASSASSINATION OF PRESIDENT LINCOLN.
477
whelming numbers, whilst the enemy's cavalry, issuing Chap.XVII.
from the hills on the west, destroyed such communica-
tions with the interior as Lee had been able to maintain,
and cut off all his sources of supply. With the fall, on
the 2nd April, of Petersburg, a place due south of Rich-
mond on the Appomattox River, against which Grant's
efforts had for a long time been directed, the defence
finally gave way; on the 3rd, Richmond surrendered ;
on the 9th, the handful of troops, wasted by hunger and
fatigue, with whom Lee had marched westwards, only to
be intercepted by Sheridan, laid down their arms and
dispersed to their homes; Grant meeting his vanquished
opponent courteously, like a true soldier, and conceding
him honourable terms of capitulation. The example of
Lee was followed by the other Confederate leaders who
had continued to keep the field. Mr. Davis was made
prisoner and thrown into Fortress Monroe, and the
Southern Confederacy was at an end.
The crime which at this moment threw a deep gloom
over the hardly-earned triumph of the North belongs to
general history. Mr. Lincoln's cruel death-a death
which he would have cheerfully faced for the sake of his
country--created a profound sensation in England, where
the virtues of his character had become known, and where
he had many fervent admirers. In both Houses of Parlia-
ment addresses were moved by Ministers of the Crown,
expressing sorrow and indignation, abhorrence of the
crime and sympathy with the Government and people
of the United States. These condolences were fitly
acknowledged by the American Government.
communication," wrote the acting Secretary of State,
conveying to the Government and people of the
United States such emphatic and earnest manifestations
of friendship and sympathy from a great and kindred
1 Mr. Hunter to Mr. Adams, 22nd May, 1865. Mr. Seward and his
son had also been the objects of a murderous attack, from which they
hardly escaped with life.
66 This
1
66
478
END OF THE WAR.
Chap.XVII. nation, is received with deep sensibility and grateful
appreciation.”
All that now remained for neutral Powers to do was
to recall, as they might judge expedient, the orders they
had issued for the protection of a neutrality which had
expired with the expiration of the war. Early in May
1865 the British Government cancelled so much of the
Instructions of 31st January, 1862, as set a limit to the
time during which armed ships of either belligerent were
permitted to stay in British waters, and to the supplies
which they were suffered to receive. On the 25th May
a newspaper copy of a Proclamation issued on the 10th
by the new President of the United States, declaring
that armed resistance to the authority of the Government
"might be regarded as virtually at an end," reached
London; and on the 30th the Proclamation was officially
communicated by Mr. Adams to Earl Russell. News
that Mr. Davis was a prisoner had arrived on the 26th.
On the 2nd June Instructions were issued announcing
that “Her Majesty's Government recognize that peace
has been restored within the whole territory of which
the United States of North America, before the com-
mencement of the civil war, were in undisturbed
possession.” Vessels of war carrying the Confederate
flag were therefore to be no longer permitted to enter
or remain in British ports. These orders were accom-
panied by some temporary reservations, which are
sufficiently explained in the following extract from a
despatch to the British Minister at Washington :-
“Her Majesty's Government, having, in common with all the
maritime Powers of Europe, acknowledged the belligerent right of
blockade on the part of the United States, and having recognized the
existence of a belligerent against whom that right was exercised, in
conformity, as they are convinced, with the law of nations and the
practice of centuries, could not be expected on their part to shrink from
the consequences of the course they had deliberately adopted. Her
1 See above, p. 142.
NEUTRALITY REGULATIONS CANCELLED.
479
Majesty's Government, therefore, considered that a due regard for Chap.XVII.
national faith and honour required that any Confederate vessel-of-war
called upon to depart from Her Majesty's ports, harbours, or waters
should have the benefit of the twenty-four hours' rule. But you
will
observe to Mr. Seward that this rule is then to be enforced for the last
time.
“Consequently no Confederate vessel-of-war, taking advantage of
this rule, could ever again have the benefit of it.
“Her Majesty's Government have, in a like spirit, allowed that
vessels lying in Her Majesty's harbours or waters, or which, during the
space of a month, shall come into these harbours or waters, shall be
permitted to disarm and assume a peaceful character. Otherwise
vessels at sea, ignorant of the termination of the war, might be driven
without coals or sails to perish on the neighbouring rocks, or to founder
at sea.
Such inhospitality would not become the character of the
nation for good faith and honour, or for humanity.
“But you will observe that Her Majesty's Government have
instructed their authorities in distant ports distinctly to apprise the
Commander of any such Confederate vessel, that he is to expect no
further protection from Her Majesty's Government, except such as he
may be entitled to in the ordinary course of the administration of the
law in time of peace. The twenty-four hours' rule would not be appli-
cable to such case.
“The Government of the United States will, therefore, be entitled
to maintain that such vessels are forfeited, and ought to be delivered
to the United States upon reasonable application in such cases made.
Only such application must be made good in a British court of law
if the vessel is found in British waters.
" In the case of a vessel captured at sea by a naval force of the
United States, under whatever flag, the claim ought to be made good
in a court of law of the United States.”]
The American Government, bent on being consistent
to the last, found some fault with these reservations, but
forbore to enter into a useless discussion. “ This Govern-
ment freely admits that the normal relations between the
two countries being practically restored to the condition
in which they stood before the civil war, the right to
search British vessels has come to an end by an arrange-
ment satisfactory in every material respect between the
two nations,
972
1 Earl Russell to Sir F. Bruce, 6th July, 1865. For the Instructions
themselves, see above, p. 142.
2 Mr. Seward to Sir F. Bruce, 19th June, 1865.
480
AMERICAN CLAIMS.
ܪ
Chap.XVII. The French Government issued, on the 5th June, 1865,
a Circular substantially the same as the British Instruc-
tions, except that it contained no provision for allowing
Confederate ships to remain in port disarmed. The
Spanish Government abrogated on the 4th June, by
Royal Decree, its regulations published at the beginning
of the war.
The end of the struggle left the South in a very
miserable condition. Its population had been thinned
by the sword and ruined by the drying up of every
source of wealth ; in many places the people were on
the
very brink of starvation. For a long time after all
-resistance bad ceased they were held under military rule;
and the question how soon and under what conditions it
was expedient to restore them to the enjoyment of civil
and political rights became the subject of vehement and
protracted dissensions between the Federal Executive and
Congress. In January 1870, after nearly five years of
peace, we learn that the great State of Virginia has at
last been emancipated from the condition of a subject
territory and re-admitted to representation in Congress.
So jealous has been the distrust of the vanquished people,
and so stern the measures of repression judged neces-
sary to subdue in them the spirit of disaffection. That
national feeling may revive throughout the South with
reviving prosperity, and that the deep and painful
wounds which have been inflicted may be perfectly, if
slowly, healed, must be the warm desire of all who feel
an interest in the future of America.
I have said that the complaints urged against Eng-
land by the American Government during the war, and
the claims founded on them, were renewed after its close.
Hence arose a fresh correspondence and a negotiation,
unhappily abortive, which demand a very few words.
Some extracts from the correspondence will show with
what views and in what manner the two Governments
approached the subject.
LORD STANLEY AND MR. SEWARD.
481
“Sir,
Mr. Seward to Mr. Adams.
Chap.XVII.
(Extract.)
Department of State, Washington, August 27, 1866.
“You will herewith receive a summary of claims of citizens of
the United States against Great Britain for damages which were
suffered by them during the period of our late civil war,
and some
months thereafter, by means of depredations upon our commercial
marine, committed on the high seas by the Sumter, the Alabama, the
Florida, the Shenandoah, and other ships-of-war, which were built,
manned, armed, equipped, and fitted out in British ports, and despatched
therefrom by or through the agency of British subjects, and which were
harboured, sheltered, provided, and furnished as occasion required,
during their devastating career, in ports of the realm, or in ports of
British Colonies in nearly all parts of the globe.
“The Table is not supposed to be complete, but it presents such a
recapitulation of the claims as the evidence thus far received in this
Department enables me to furnish. Deficiencies will be supplied here-
after. Most of the claims have been from time to time brought by
yourself, as the President directed, to the notice of Her Majesty's
Government, and made the subject of earnest and continued appeal.
That appeal was intermitted only when Her Majesty's Government,
after elaborate discussions, refused either to allow the claims, or to refer
them to a Joint Claims Commission, or to submit the question of
liability therein to any form of arbitration. The United States, on the
other hand, have all the time insisted upon the claims as just and valid.
This attitude has been, and doubtless continues to be, well understood
by Her Majesty's Government. The considerations which inclined this
Government to suspend for a time the pressure of the claims upon the
attention of Great Britain were these :
“The political excitements in Great Britain, which arose during the
progress of the war, and which did not immediately subside at its
conclusion, seemed to render that period somewhat unfavourable to a
deliberate examination of the very grave questions which the claims
involve.
“ The attention of this Government was, during the same period,
largely engrossed by questions at home or abroad of peculiar interest
and urgency. The British Government has seemed to us to have been
similarly engaged. These circumstances have now passed away, and a
time has arrived when it is believed that the subject may receive just
attention in both countries.
“The principles upou which the claims are asserted by the United
States have been explained by yourself in an elaborate correspondence
with Earl Russell and Lord Clarendon. In this respect, there seems to
be no deficiency to be supplied by this Department. Thus if it should
be the pleasure of Her Majesty's Government to revert to the subject
in a friendly spirit, the materials for any new discussion on your part
will be found in the records of your Legation, properly and duly
2 I
482
AMERICAN CLAIMS.
Chap.XVII. prepared for use by your own hand. It is the President's desire that
you now call the attention of Lord Stanley to the claims in a respectful,
but earnest manner, and inform him that, in the President's judgment,
a settlement of them has become urgently necessary to a re-establish-
ment of entirely friendly relations between the United States and Great
Britain.
"This Government, while it thus insists upon these particular claims,
is neither desirous nor willing to assume an attitude unkind or uncon-
ciliatory towards Great Britain. If on her part there are claims, either
of a commercial character, or of boundary, or of commercial or judicial
regulation, which Her Majesty's Government esteem important to bring
under examination at the present time, the United States would, in such
case, be not unwilling to take them into consideration in connection with
the claims which are now presented on their part, and with a view to
remove at one time, and by one comprehensive settlement, all existing
causes of misunderstanding.
*
"The claims
upon which we insist are of large amount. They affect
the interest of many thousand citizens of the United States in various
parts of the Republic. The justice of the claims is sustained by the
universal sentiment of the people of the United States. Her Majesty's
Government, we think, cannot reasonably expect that the Government
of the United States can consent, under such circumstances, to forego
their prosecution to some reasonable and satisfactory conclusion. This
aspect of the case is, however, less serious than that which I have next
to present. A disregard of the obligations of Treaties, and of inter-
national law, manifested by one State, so injurious to another as to
awaken a general spirit of discontent and dissatisfaction among its
people, is sure, sooner or later, to oblige that people, in a spirit of self-
defence, if not of retaliation, in the absence of any other remedy, to
conform their own principles and policy, in conducting their intercourse
with the offending State, to that of the party from whom the injury
proceeds.
*
“Her Majesty's Government, we think, cannot reasonably object to
acknowledge our claims, and to adopt such measures as will assure the
American people that their friendly policy of non-intervention in the
domestic controversies of Great Britain will be made reciprocal and
equal.
“I observe, finally, that the United States and Great Britain are
two of the leading national Powers in this age. The events of the last
five years have conclusively proved that harmony between them is
indispensable to the welfare of each. That harmony has been, as we
think, unnecessarily broken through the fault of Great Britain; nor
does there exist the least probability that it can ever be completely
renewed and restored unless the serious complaint which you are now
.again to bring to the notice of the British Government shall be amicably
LORD STANLEY AND MR. SEWARD.
483
and satisfactorily adjusted. Such an adjustment would be acceptable, Chap.XVII.
we think, to the friends of peace, progress, and humanity throughout
the world; while the benignant principles upon which it shall be based,
being conformable to the law of nations, will constitute a guide for
the conduct of commercial States in their mutual intercourse which
will everywhere be conducive to internatianal peace, harmony, and
concord.
“I am, &c.
(Signed)
WILLIAM H. SEWARD."
Inclosed in this despatch was “an abstract of the
claims filed in the Department of State by American
citizens, native and naturalized, for damages sustained
by them as the owners, mariners, freighters, or insurers
of duly documented American ships, captured and
destroyed, or appropriated, by the officers and crew of
the steamer Alabama; and as owners, insurers, or other-
wise interested in the cargoes of such ships, or in
charter-parties, for the services of such ships ;” and like
abstracts of claims for captures by the Florida, Georgia,
and Shenandoah. The aggregate amount was a little
less than 2,000,0001. sterling.
Lord Stanley to Sir F. Bruce.
(Extract.)
"Foreign Office, November 30, 1866.
“It is impossible for Her Majesty's present advisers to abandon the
ground which has been taken by former Governments, so far as to
admit the liability of this country for the claims then and now put for-
ward. They do not think that such liability has been established
according to international law or usage; and though sincerely and
earnestly desiring a good understanding with the United States, they
cannot consent to purchase even the advantage of that good under-
standing by concessions which would at once involve a censure on their
predecessors in power, and be an acknowledgment, in their view uncalled-
for and unfounded, of wrong-doing on the part of the British Executive
and Legislature. But, on the other hand, they are fully alive to the
inconvenience which arises from the existence of unsettled claims of
this character between two powerful and friendly Governments. They
would be glad to settle this question, if they can do so consistently with
justice and national self-respect; and with this view they will not be
disinclined to adopt the principle of arbitration, provided that a fitting
arbitrator can be found, and that an agreement can be come to as to
the points to which arbitration shall apply.
2 1 2
484
AMERICAN CLAIMS.
Chap.XVII. Of these two conditions, the former need not be at present
be discussed : the latter is at once the more important and the more
pressing
“With regard to the ground of complaint on which most stress is
laid in Mr. Seward's despatch, viz., the alleged premature recognition of
the Confederate States as a belligerent Power, it is clear that no
reference to arbitration is possible. The act complained of, while it
bears very remotely on the claims now in question, is one as to which
every State must be held to be the sole judge of itš duty; and there is,
so far as I am aware, no precedent for any Government consenting to
submit to the judgment of a foreign Power, or of an international
Commission, the question whether its policy has or has not been
suitable to the circumstances in which it was placed.
“The same objection, however, does not necessarily apply to other
questions which may be at issue between the two Governments in
reference to the late war; and with regard to these, subject to such
reservations as it may hereafter be found necessary to make, I have to
instruct you to ascertain from Mr. Seward whether the United States'
Government will be prepared to accept the principle of arbitration, as
proposed above.
Should this offer be agreed to, it will be for
Mr. Seward to state what are the precise points which, in his opinion,
may be, and ought to be, so dealt with. Any such proposal must
necessarily be the subject of deliberate consideration on the part of Her
Majesty's Government; but they will be prepared to entertain it in a
friendly spirit, and with the sincere desire that its adoption may lead to
a renewal of the good understanding formerly existing, and, as they
hope, hereafter to exist, between Great Britain and the United States.
66 I
am, &c.
(Signed)
6 STANLEY.”
Mr. Seward to Mr. Adams.
+
'Department of State, Washington,
(Extract)
January 12, 1867.
“With regard to the manner in which this protracted controversy
shall be brought to an end, we agree entirely with the sentiments
expressed by Lord Stanley. We should even think it better that it be
brought to an end which might, perhaps, in some degree disappoint the
parties, than that it should continue to alienate the two nations, each of
which is powerful enough to injure the other deeply, while their main-
tenance of conflicting principles in regard to intervention would be a
calamity to all nations. The United States think it not only easier but
more desirable that Great Britain should acknowledge and satisfy the
claims for indemnity which we have submitted, than it would be to find
an equal and wise arbitrator who would consent to adjudicate them.
If, however, Her Majesty's Government, for reasons satisfactory to
them, should prefer the remedy of arbitration, the United States would
LORD STANLEY AND MR. 485
.
SEWARD.
not object. The United States, in that case, would expect to refer the Chap.XVII.
whole controversy just as it is found in the correspondence which has
taken place between the two Governments, with such further evidence
and arguments as either party may desire, without imposing restrictions,
conditions, or limitations upon the umpire, and without waiving any
principle or argument on either side. They cannot consent to waive
any question upon the consideration that it involves a point of national
honour; and, on the other hand, they will not require that any question
of national pride or honour shall be expressly ruled and determined as
such. If Her Majesty's Government shall concur in these views, the
President will be ready to treat concerning the choice of an umpire.
“I am, &c.
(Signed) 66 WILLIAM H. SEWARD."
Lord Stanley to Sir F. Bruce.
(Extract.)
“Foreign Office, March 9, 1867.
“In my despatch of the 30th November I explained to you the
grounds on which Her Majesty's Government could not consent to
refer to a foreign Power to determine whether the policy of recognizing
the Confederate States as a belligerent Power was or was not suitable
to the circumstances of the time when that recognition was made, but I
at the same time expressed the willingness of Her Majesty's Government
to entertain in a friendly spirit any proposal which might be made
to them by the Government of the United States, to refer to arbitration
other questions which might be at issue between the two Governments
in reference to the late war, and I desired you to invite Mr. Seward to
state what were the precise points which in his opinion might be, and
ought to be, so dealt with.
“Mr. Seward, in his despatch of the 12th of January, while
suggesting that it would be 'not only easier but more desirable
that Great Britain should acknowledge and satisfy the claims for
indemnity which we have submitted, than it would be to find an equal
and wise arbitrator who would consent to adjudicate them,' goes on to
say that if Her Majesty's Government should prefer the remedy of
arbitration, the United States would not object, but in that case
'would expect to refer the whole controversy just as it is found in the
correspondence which has taken place between the two Governments,
with such further evidence and arguments as either party may desire,
without imposing restrictions, conditions, or limitations upon the
umpire, and without waiving any principle or argument on either
side.'
“To such an extensive and unlimited reference Her Majesty's
Government cannot consent: for this reason, among others, that
it would admit of, and indeed compel, the submission to the arbiter of
the very question which I have already said they cannot agree to
submit.
486
AMERICAN CLAIMS.
Chap.XVII.
“The real matter at issue between the two Governments, when
kept apart from collateral considerations, is, whether, in the matters
connected with the vessels out of whose depredations the claims
of Americans citizens have arisen, the course pursued by the British
Government and by those who acted under its authority was such as
would involve a moral responsibility on the part of the British Govern-
ment to make good, either in whole or in part, the losses of American
citizens.
"This is a plain and simple question, easily to be considered by an
arbiter, and admitting of solution without raising other and wider
issues; and on this question Her Majesty's Government are fully
prepared to go to arbitration, with the further provision that, if
the decision of the arbiter is unfavourable to the British view, the
examination of the several claims of citizens of the United States shall
be referred to a Mixed Commission, with a view to the settlement of
the sums to be paid on them.
“But as they consider it of great importance for the maintenance of
good understanding between the two countries that the adjudication of
this question in favour of one or other of the parties should not leave
other questions of claims in which their respective subjects or citizens
may be interested to be matter of further disagreement between
the two countries, Her Majesty's Government, with a view to the com-
mon interest of both, think it necessary, as you have already apprised
Mr. Seward in your letter of the 7th of January, “in the event of an
understanding being come to between the two Governments, as to the
manner in which the special American claims' (which have formed the
subject of the correspondence of which my present despatch is the
sequel) 'should be dealt with, that, under a Convention to be sepa-
rately but simultaneously concluded, the general claims of the subjects
and citizens of the two countries arising out of the events of the late
war should be submitted to a Mixed Commission, with a view to their
eventual payment by the Government that may be judged responsible
for them.'
“Such, then, is the proposal which Her Majesty's Government
desire to submit to the Government of the United States-limited
reference to arbitration in regard to the so-called Alabama claims,
and adjudication by means of a Mixed Commission of general claims.
“You will read this despatch to Mr. Seward, and furnish him with
a copy of it, as the deliberate reply of Her Majesty's Government to his
despatch of the 12th of January, and in doing so, you will express to
him the earnest hope of Her Majesty's Government that their present
proposal will be accepted by the Cabinet of Washington in the spirit in
which it is made.
“I am, &c.
(Signed) STANLEY."
LORD STANLEY AND MR. SEWARD.
487
Lord Stanley to Sir F. Bruce.
Chap.XVII. .
6 Sir,
“Foreign Office, May 2, 1867.
"Mr. Adams has this day communicated to me the substance of a
despatch which he had received from Mr. Seward in reply to the
proposals which you were instructed by my despatch of the 9th of
March to make on the subject of the claims arising out of the civil war
in the United States.
“In this despatch Mr. Seward states that the Government of
the United States adhere to the view which they formerly expressed as
to the best way of dealing with these claims. They cannot, conse-
quently, consent to a special and peculiar limitation of arbitrament in
regard to the Alabama claims such as Her Majesty's Government
suggests.
They cannot give any preference to the Alabama claims over
others in regard to the form of arbitrament suggested; and while they
agree that all mutual claims which arose during the civil war between
citizens and subjects of the two countries ought to be amicably and
speedily adjusted, they must insist that they be adjusted by one and the
same form of tribunal, with like and the same forms, and on principles
common to all.
“ The President of the United States, therefore, respectfully declines
the proposal of Her Majesty's Government; but reciprocating the
feelings of good-will which have been expressed on the part of Great
Britain, the United States' Government will cheerfully receive any
further suggestions that Her Majesty's Government may have to
offer.
“I am, &c.
(Signed)
- STANLEY.”
Lord Stanley to Mr. Ford.
(Extract.)
Foreign Office, November 16, 1867.
“ Whilst agreeing to this limited reference as regards the so-called
Alabama claims, I have repeatedly stated that Her Majesty's Govern-
ment could not consent to refer to a foreign Power to determine
whether the policy of Her Majesty's Government in recognizing
the Confederate States as belligerents was or was not suitable to the
circumstances of the time when the negotiation took place. After
referring, however, to the terms of my despatch of the 24th of May,
Mr. Seward goes on to say that, in the view taken by the United
States' Government, that Government would deem itself at liberty to
insist before the arbiter that the actual proceedings and relations of
the British Government, its officers, agents, and subjects, towards the
United States in regard to the rebellion and the rebels as they occurred
during that rebellion, are among the matters which are connected with
488
AMERICAN CLAIMS.
Chap.XVII. the vessels whose depredations are complained of; just as, in the case
of the general claims alluded to by me, the actual proceedings and
relations of Her Majesty's Government, its officers, agents, and
subjects in regard to the United States, in regard to the rebellion and
the rebels, are necessarily connected with the transactions out of
which those general claims arise.
“ The language thus used by Mr. Seward appears to Her Majesty's
Government to be open to the construction that it is the desire of the
United States' Government that any tribunal to be agreed upon in
dealing either with the so-called Alabama claims or with the 'general
claims' might enter into the question whether the act of policy of Her
Majesty's Government in recognizing the Confederate States as a
belligerent Power was or was not suitable to the circumstances of the
time when the recognition was made; a construction which, after the
distinct and repeated avowal of Her Majesty's Government that they
could not consent to a reference of such a question, Her Majesty's
Government can hardly suppose that it was intended by Mr. Seward
that the passage in his despatch should bear.
“ Bat to prevent any misapprehension on this subject, Her Majesty's
Government think it necessary distinctly to say, both as regards the
so-called Alabama claims brought forward by citizens of the United
States and as regards the general claims, that they cannot depart,
directly or indirectly, from their refusal to refer to a foreign Power to
determine whether the policy of recognizing the Confederate States as
a belligerent Power was or was not suitable to the circumstances of
the time when the negotiation was made.'
“ As regards the so-called Alabama claims, the only point which
Her Majesty's Government can consent to refer to the decision of an
arbiter is the question of the moral responsibility of Her Majesty's
Government, on the assumption that an actual state of war existed
between the Government of the United States and the Confederate
States; and on that assumption it would be for the arbiter to determine
whether there had been any such failure on the part of the British
Government as a neutral in the observance, legally or morally, of any
duties or relations towards the Government of the United States as
could be deemed to involve a moral responsibility on the part of the
British Government to make good losses of American citizens caused
by the Alabama and other vessels of the same class,
56 As regards the general claims, the question of moral responsibility
on the part of Her Majesty's Government does not, and cannot, come
into dispute at all.
“ Mr. Seward rightly supposes that Her Majesty's Government
contemplated two tribunals for the adjudication, one of the Alabama
claims, the other of the general claims; the one being, in the first
instance, at all events, the tribunal of an arbiter, who would be called
upon to pronounce on the principles of the moral responsibility of the
British Government, and on the nature of whose decision would depend
LORD STANLEY AND MR. SEWARD.
489
the question of the appointment of a Mixed Commission for the exami- Chap.XVII.
nation in detail of the several claims of citizens of the United States
to which that decision applied, namely, those arising out of the depre-
dations of the Alabama and other similar vessels, and the adjudica-
tion of the sums payable in each case; the other, in its commencement
and to its close, a purely Mixed Commission for the examination of the
general claims of the subjects and citizens of both countries arising
out of the war, and the adjudication of the sums payable by either
country in each case.
“ The distinction between the two classes of claims is clear: the
one may never come before a Mixed Commission, and therefore may
not require the assistance of an arbiter to decide differences of detail
arising between the Commissioners; the other, though originally
brought before a Mixed Commission, may possibly require the inter-
vention of an arbiter in case of a difference of opinion among the
members of the Commission which could not be otherwise reconciled,
and for which case provision would be made in the ordinary way in
the Convention for the Settlement of the Mixed Claims, by the insertion
of Articles in regard to the selection of an arbiter.
“ The functions of such an arbiter, as well as of an arbiter for a
like purpose in the other Mixed Commission, for which provision would
have to be made to meet the contingency of the so-called Alabama
claims coming eventually under the cognizance of a Mixed Commission,
would have nothing in common with the functions of the arbiter, to
whom the question of principle involved in the last-mentioned class of
claims would be referred,
“Her Majesty's Government cannot but apprehend that, if
Mr. Seward really requires unrestricted arbitration as applicable to
both classes of claims, and that the tribunal in both classes of cases
should proceed upon the same principles and be clothed with the same
powers, he has not fully considered the wide and inevitable distinction
which exists between the classes; and in directing you to submit to the
consideration of Mr. Seward the explanations and observations con-
tained in this despatch, I have to instruct you to express the earnest
hope of Her Majesty's Government that the Government of the United
States will, on further reflection, accept without hesitation the proposal
made in my despatches to Sir F. Bruce of the 9th of March and of
the 24th of May, both of this year, namely, 'limited reference to arbi:
tration in regard to the so-called Alabama claims,' and 'adjudication by
means of a Mixed Commission of general claims.'
“ You will furnish Mr. Seward with a copy of this despatch.
I
(Signed) $ STANLEY."
am, &c.
490
CONVENTION CONCLUDED.
Chap.XVII.
Mr. Seward to Mr. Adams.
6. Sir,
"Department of State, Washington,
“November 29, 1867.
- The Government of the United States adheres to the views
concerning the proposed arbitration which I have heretofore had
occasion to make known, through your Legation, to Lord Stanley.
We are now distinctly informed by Lord Stanley's letter that the
limited reference of the so-called Alabama claims which Lord Stanley
proposes is tendered upon the condition that the United States shall
waive before the arbitrator the position they have constantly main-
tained from the beginning, namely, that the Queen's Proclamation of
1861, which accorded belligerent rights to insurgents against the
authority of the United States, was not justified on any grounds,
either of necessity or moral right, and, therefore, was an act of
wrongful intervention, a departure from the obligation of existing
Treaties, and without the sanction of the law of nations. The con-
dition being inadmissible, the proposed limited reference is therefore
declined.
"I am, &c.
(Signed) “ WILLIAM H. SEWARD."
Here the subject dropped. But Mr. Reverdy Johnson,
who succeeded Mr. Adams in 1868, as Minister of the
United States in London, was instructed to re-open it
with Lord Stanley, then Secretary of State for Foreign
Affairs. This he did at several interviews, first, by
throwing out suggestions that Great Britain might
dispose of the question by payment of a sum of money,
1 Extract from Mr. Reverdy Johnson's Instructions.--(Communicated to
Lord Stanley by Mr. Reverdy Johnson, 16th October, 1868.)
“Our conclusion is, that in the event that you become convinced
that an arrangement of the Naturalization question which would be
satisfactory to the United States, in view of your previous instructions,
can be made, then and in that case you may open concurrent negotia-
tions upon the two questions first herein-named, to wit, San Juan and
the Claims question ; but that those two negotiations shall not be com-
pleted, or your proceedings therein be deemed obligatory, until after
the Naturalization question shall have been satisfactorily settled by
Treaty or by Law of Parliament.”
A Protocol on the Naturalization question had been signed before
Mr. Johnson began to treat on the “Claims” question, which these
Instructions authorized him to do.
RATIFICATION REFUSED.
491
or by a cession of territory, and afterwards by proposing Chap.XVII.
the outline of a Protocol or Convention, which Lord
Stanley was willing to adopt. A draft of a Convention
was drawn up accordingly. To this various objections
were raised by the American Government; and in order
to remove them it was thoroughly recast, so as to meet
the wishes of Mr. Seward. On the 14th January, 1869,
it was signed sub spe rati by Mr. Reverdy Johnson, and
by Lord Stanley's successor the Earl of Clarendon,
and was officially communicated by the President to
the Senate of the United States for approval. On
the 13th April (General Grant having in the meanwhile
become President) it was resolved in the Senate, by a
vote of 54 to 1, that the Senate “ does not advise and
consent to the ratification of the Convention."
I do not propose to enter into the details of
this negotiation or of Mr. Johnson's Convention, nor
shall I attempt to criticize the one or the other. The
Convention, in substance, was a simple agreement to
refer "all claims on the part of the subjects of Her
Britannic Majesty upon the Government of the United
States, and all claims on the part of the citizens of the
United States upon the Government of Her Britannic
Majesty, including the so-called Alabama claims,” pre-
sented or to be presented between certain specified
dates, to four Commissioners, two to be named by the
Queen and two by the President of the United States,
with a provision for umpirage; the Commissioners to sit
at Washington, and to receive and peruse the official
correspondence respecting any claims submitted to them,
and also such further documents in writing as either
Government might present, and to hear, if required, one
person on each side.
“Nevertheless, if the Comunissioners, or any two of them, shall
think desirable that a Sovereign, or Head of a friendly State, should
be Arbitrator or Umpire in case of any claim, the Commissioners shall
report to that effect to their respective Governments, who shall there-
492
RATIFICATION REFUSED.
Chap.XVII. upon, within six months, agree upon some Sovereign or Head of a
friendly State, who shall be invited to decide upon such claim, and
before whom shall be laid the official correspondence which has taken
place between the two Governments, and the other written documents
or statements which may have been presented to the Commissioners in
respect of such claims.”l
That the American Government—that is, the Presi-
dent acting by the advice and with the consent of the
Senate—had a right to decline to ratify the Convention,
will be disputed by no one. This right belongs to every
Sovereign, and may be exercised for any reason that he
judges to be of sufficient importance, even though the
negotiator have not exceeded his powers or transgressed
his instructions. So important is it that the neutral
engagements of nations should be contracted deli-
berately, that there should be opportunity for reconsider-
ation, and that the assent of each should be perfectly free.
The reasons for which the ratification was with-
held in this case were explained in Mr. Fish's despatch
of the 25th September, 1869. Though somewhat
vaguely stated, they cannot certainly be described as
light or trivial: they express, on the contrary, a view
of the question at issue so widely different from
1
Nothing is here said about the question of recognition. The
British Government had not only refused several times distinctly and
positively to suffer this question to be raised before an arbitrator, but
had repeated this, through Lord Stanley, to Mr. Johnson himself:-
“ In this conversation (21st October, 1868) little was said as to the
point on which the former negotiations broke off, viz., the claim made
by the United States' Government to raise before the arbiter the
question of the alleged premature recognition by Her Majesty's
Government of the Confederates as belligerents. I stated to
Mr. Reverdy Johnson that we could not on this point depart from
the position which we had taken up, but I saw no impossibility in
80 framing the reference as that, by mutual consent, either tacit or
express, the difficulty might be avoided."-Lord Stanley to Mr. Thornton,
21st October, 1868.
It must be assumed that the Queen's Government did not intend to
abandon this resolution by acquiescing in the use of general words, nor
the Government of the United States to overreach Great Britain by a
trick of expression.
/
GROUNDS OF REFUSAL:
493
that which appears to have governed the framing of Chap.XVII.
the Convention that they were not only sufficient
to warrant the rejection of it, but appear likely to
oppose considerable obstacles to the conclusion of any
other. There is certainly not the slightest reluctance
in this country to make any reasonable amends to the
United States, could we but convince ourselves that
reparation is justly due. Were we satisfied of that, Í
am persuaded that no punctilious sense of national
dignity or honour would be suffered to forbid the frank
acknowledgment of a past error. But the estimate
which the American Government has thought fit to
adopt of its own claims, and of the questions to be
submitted to an arbitrator, is not favourable to a settle-
ment. To say truth, it is such as almost to preclude
discussion.
1
!
1 “The Claims Convention, Mr. Motley said, had been published
prematurely owing to some accident which he could not explain, and
that consequently long before it came under the notice of the Senate
it had been unfavourably received by all classes and parties in the
United States :--the time at which it was signed was thought most
inopportune, as the late President and his Government were virtually
out of office, and their successors could not be consulted on this grave
question. The Convention was further objected to because it embraced
only the claims of individuals, and had no reference to those of the two
Governments on each other, and lastly, that it settled no question and
laid down no principle.”—The Earl of Clarendon to Mr. Thornton,
10th June, 1869.
“The President deems it due to the Senate, to himself, and to the
subject, to declare that he concurs with the Senate in disapproving of
that Convention. His own particular reasons for this conclusion are
sufficiently apparent in this despatch. In addition to these general
reasons, he thinks the provisions of the Convention were inadequate to
provide reparation for the United States in the manner and to the
degree to which he considers the United States entitled to redress.
Other and special reasons for the same conclusion have been explained
in a previous despatch, such, namely, as the time and circumstances of
the negotiation, the complex character of the proposed arbitration, its
chance, agency, and results, and its failure to determine any principle,
or otherwise to fix on a stable foundation the relations of the two
Governments. The President is not yet prepared to pronounce on the
494
ARBITRATION.
Chap.XVII. Arbitration is a useful expedient when all that the
parties require is an impartial judgment on their respec-
tive rights, and this can be given without laying down
a general principle; or when the principle which it is
necessary to lay down will be of no future importance to
the litigants; or when the authority of the arbitrator
is such that they are content to receive from him a
principle which will be important to them hereafter.
Where the decision will probably involve, or appear
to
involve, an important rule of conduct, on which the
parties, or either of them, would not be willing to submit
to the authority of the arbitrator, objections may reason-
ably be entertained to this mode of settlement. Further,
where the decision will involve, or appear to involve, a
principle of importance, it is material that the principle
should be stated clearly, and, for this purpose, that the
question of the indemnities which he thinks due by Great Britain to
individual citizens of the United States for the destruction of their
property by rebel cruisers fitted out in the ports of Great Britain.
"Nor is he now prepared to speak of the reparation which he
thinks due by the British Government for the larger account of the
vast national injuries it has inflicted on the United States.
“Nor does he attempt now to measure the relative effect of the
various causes of injury, as whether by untimely recognition of
belligerency, by suffering the fitting out of rebel cruisers, or by the
supply of ships, arms, and munitions of war to the Confederates, or
otherwise, in whatsoever manner.
“Nor does it fall within the scope of this despatch to discuss the
important changes in the rules of public law, the desirableness of
which has been demonstrated by the incidents of the last few years
now under consideration; and which, in view of the maritime pro-
minence of Great Britain and the United States, it would befit them to
mature and propose to the other States of Christendom.
All these are subjects of future consideration which, when the time
for action shall come, the President will consider with sincere and
earnest desire that all differences between the two nations may be
adjusted amicably and compatibly with the honour of each, and to the
promotion of future concord between them; to which end he will
spare no efforts within the range of his supreme duty to the right
and interests of the United States.”—Mr. Fish to Mr. Motley, 25th
September, 1869.
r
REMARKS.
495
Note.
question which is to be submitted to the arbitrator Chap.XVII.
should be stated clearly. Generally speaking, there are
few classes of questions more suitable for arbitration
than questions of alleged negligence or unintentional
default. On the other hand, the question under what
circumstances a Sovereign Government may issue a
declaration of neutrality, is one on which few Sovereign
Governments would be willing to bow to the decision of
any arbitrator.
NOTE.
was
After the foregoing pages were in print, I have had the pleasure of
reading a short dissertation, entitled La Questione Anglo-Americana dell'
Alabama dopo il Discorso del Senatore Sumner al Senato di Washington,
by Signor Pietro Esperson, Professor of International Law in the
University of Pavia. It is chiefly devoted to a consideration of the
question whether the recognition of the Confederates as belligerents
an injurious act, for the consequences of which Great Britain
became responsible.
Professor Esperson lays down, in substance, the following proposi-
tions, and argues them one by one:
Where revolt or rebellion has gone such a length as to establish
within a country a de facto Government, confronting the old one and
waging war against it, foreign nations are bound, by the respect due
to national independence, to accept the facts as they exist, without
inquiring whether the new Government has right on its side; to regard
the contending parties as (for the purposes of the war) two independent
societies; and to remain neutral.
These conditions existed in the United States, and foreign nations
had no alternative but to recognize both parties as belligerents.
As there can be no war without two or more belligerents, to deny
that character to one of the contending parties would have been to
refuse it to the other.
The blockade of the South was, in respect of foreign nations, an
exercise of the rights of war against neutrals, and President Lincoln's
Proclamation of the 19th April, 1861, which announced the blockade,
recognized the existence of a war.
Great Britain exercised a right, and may indeed be said to have
fulfilled a duty, in recognizing the Confederates as belligerents. It
is, therefore, absurd to contend that she is responsible for damages
which the United States may have sustained, traceable directly or
indirectly to the Queen's Proclamation. “Come si può conciliare che chi
496
OPINION OF PROFESSOR ESPERSON.
Chap.XVII. non è responsabile della causa debba poi rispondere degli effetti ?". Even if
it were true that the Confederates would never have sent privateers to
Note.
sea, had they not been recognized as belligerents, this would not justify
a claim for reparation; the recognition itself being a perfectly legiti-
mate act.
Setting aside the case of the Alabamd, the conduct of Great Britain
Was blameless in respect of both the contending parties ("* inoffensiva
per ambe le parti contendenti").
As regards the Alabama, Professor Esperson thinks that the British
Government became responsible for the losses actually inflicted by that
vessel. He will pardon me, however, for saying that on this subject,
to which he devotes only a few lines, his information seems to be
imperfect. He describes the Alabama as having been built, armed, and
manned in British waters, under the eyes of the British Government,
as having been wholly manned with British seamen, and afterwards
received into British ports “with her prizes.” And he says that in the
Convention rejected by the American Senate the British Government
admitted a violation of neutrality in this case, by consenting to refer to
arbitration the amount (“il calcolo”) of the losses sustained by merchants
who suffered from the depredations of the Alabama. If he should do
me the honour to read this book, he will find that these are very unlike
the true facts of the case, and he may perhaps see reason to change his
opinion on this point.
CHAPTER XVIII.
Conclusion.
My narrative is ended. I shall add to it only one or
two short general observations. It is the misfortune of
a writer who undertakes to treat of questions actually in
dispute--especially if one of the countries interested in
the dispute be his own—that he can scarcely assign to
them himself, or expect that others will assign to them,
the true measure of their permanent importance. It
cannot, however, have escaped the reader's notice that
some at least of the questions reviewed in these pages
have an importance of their own, wider and more lasting
than such as they derive from transient and accidental
circumstances. Great Britain and the United States
were not the only Powers really concerned in these
controversies; still less can they be accounted the
only Powers interested in whatever tends to alter, or to
define with increased clearness, the rights and duties of
belligerent and neutral.
The rights of belligerent and neutral, during the late
contest, were brought into discussion, as we have seen,
under peculiar circumstances. The contest itself was a
civil war; a civil war developed with extraordinary
celerity, because it sprang from the revolt of a cluster
of communities already completely organized, and accus-
tomed to union for the regulation of common interests
and for military defence; a civil war waged on an un-
exampled scale, since the victorious party mustered at
2 K
498
CONCLUDING REMARKS.
Ch. XVIII. its close a fleet of more than 500 ships and an army
of nearly 1,000,000 men. It was a war prosecuted by
land and sea, in which the weaker combatant was an
enterprising and audacious people, with plenty of naval
officers and few ships, possessing an extensive sea-coast,
which was harassed and gradually, but only gradually,
closed by a most protracted blockade. The greatest
maritime Power in the world, which is also the greatest
workshop and mart for general trade, and therefore the
most natural resort for procuring all kinds of supplies,
was neutral, and separated from the strife only by the
broad highway of the Atlantic. Lastly, it should not
pass unobserved that steam-power and the changes
introduced by it into the art of navigation have insensibly
altered in various ways the conditions under which war
is carried on, and have been found to affect, to a degree
not fully understood before, the facilities for enforcing
and for eluding blockades, for the carriage of contraband,
for procuring and fitting-out ships, for harassing an
enemy's commerce, and for cruising in distant seas.
Questions, therefore, not new in themselves assumed
new aspects in the late war. To the difficulty which
belligerent and neutral commonly find in looking at the
same facts from one and the same point of view was
added the more obstinate difficulty which is likely to
arise when the belligerent is a citizen fighting against
his fellow-citizen, or a Sovereign at war with his sub-
jects. The points of view from which such a struggle is
regarded by the neutral and by the belligerent Sovereign
are not, it is true, really irreconcilable; on the contrary,
they are quite consistent with one another. A rebel is
liable to be treated as a criminal within the jurisdiction
of his Sovereign, outside of it he is not liable to be so
treated; and to insist that he shall be regarded as a
criminal abroad is as unreasonable in the Sovereign as it
would be in the neutral to contend that he should not
be so regarded at home. But although there is no
CONCLUDING REMARKS.
499
contradiction in reason and logic, the difficulty exists Ch. XVIII,
nevertheless; and it was never more strikingly illustrated
than by the experience of the late war.
There is no part of the policy of the United States
on which American Presidents have dwelt with greater
complacency than the attitude which the Republic has
held towards countries struggling with revolt or torn by
internal wars. In defining this they have been careful
to draw a line between the acts of the Government
and the sympathies of the people. A struggle for
independence-or, which is exactly the same thing, a
revolt—has always been deemed in America a natural
and legitimate object of popular sympathy. American
Governments have avowed this; they have sometimes
permitted themselves not only to share the feeling, but
to give public expression to it; but they have endea-
voured, not always with success, to prevent it from
taking the form of active interference, and in their own
public acts they have prided themselves in maintaining
a perfectly impartial neutrality. Whether a Government
was sovereign, whether a people was independent, were,
and must always be, to the Government of the United
States, questions of fact, to be determined “ without
any
reference to the merits of the original controversy.” In
the meantime, “when civil war breaks the bonds of
society and of government, or at least suspends their
force and effect, it gives birth in the nation to two
independent parties, who regard each other as enemies
and acknowledge u common judge. It is of necessity,
therefore, that these two parties should be considered
by foreign States as two distinct and independent
nations." The principles and policy thus recognized by
the United States have been declared “ appropriate to
their condition, fixed and fastened upon them by their
character, their history, and their position among the
1
Report of Committee of the House of Representatives on Foreign
Relations, 19th March, 1822.
2 K 2
500
CONCLUDING REMARKS
Ch. XVIII, nations of the world ;” and these principles, said an
American Secretary of State, “will not be departed
from until some extraordinary change shall take place
in the general current of human affairs.”]
We have now seen how painful and difficult it may
be for a nation to submit its own feelings and interests to
a rule which seems just and expedient when applied to
others. To Americans of the North and West it has
appeared a thing not to be borne that a civil war,
,
originating in a revolt which they thought unjustifiable
and criminal, should be dealt with by foreign Govern-
ments on exactly the same principles as if it had been
clearly justifiable: in other words, that these Govern-
ments should treat it “ without reference to the merits
of the original controversy," simply as a civil war. This
impatience coloured their whole view of the subject, and
the treatment of every question as it arose : it speaks in
every despatch, and points every argument. The nations
of Europe had been asked--they had been importuned
-to be neutral; no sooner did they begin to act as
neutrals and treat both belligerents alike, than they
were overwhelmed with reproaches, and their conduct was
persistently judged with reference, not to the rights and
!
1 See the correspondence between Mr. Webster and M. Hülsemann in
1850, on the proceedings of President Taylor's Government in reference
to the insurrection in Hungary. If the United States had formally
recognized the independence of Hungary, though no benefit would have
resulted from it to either party, it would not, said Mr. Webster, have
been an act against the law of nations, provided they took no part in
her contest with Austria.
Pando (Elementos del Derecho Internacional, 1838, p. 589), after
quoting the judgments delivered by the Supreme Court in
the Divina Pastora and
and the Nuestra Señora de la Caridad,
observes :
“Esta misma doctrina ha sido recientemente aplicada por los
Estados Unidos á los insurgentes de Tejas contra autoridad de su
protegida la República Mejicana. Falta ver si la Union aprobará estos
principios en el futuro caso de que los profesen las Potencias extrangeras,
cuando estalle alguna guerra civil entre los miembros de la misma
Federacion."
CONCLUDING REMARKS.
501
duties of neutrals, but to the legal and moral obligations Ch. XVIIL
which the people of the revolted States owed to the Union.
The Confederates were “disloyal citizens,” “insurgents,"
“rebels;" to receive them into neutral ports was to
harbour rebels; to sell them guns and ammunition, or
even to send them calicoes or French brandy, was to
furnish supplies to rebels; to trade with blockaded ports
was to assist rebellion. Rebels and disloyal they un-
questionably and avowedly were, since they were in
arms, not merely to subvert the Government under
which they lived, but to make themselves independent
of it; and he who does this carries rebellion and
disloyalty to the extreme. But in the view of the
Governments of Europe these rebellious and disloyal
communities were merely large masses of people engaged
in war, and both reason and usage justified those Govern-
ments in so regarding them. The Government of the
United States was not bound to treat its revolted
citizens as belligerents, but it was bound by its own
history, by usage, and by reason, to know and acknow-
ledge that they were belligerents, and that only, to
Great Britain, to France, to the Netherlands, to Brazil,
to Spain. “And this was what it could never persuade
itself to do.
It will have been observed also that the rights of war
were asserted and enforced, with somewhat more than
usual rigour, by a nation which has commonly been
the advocate and champion of the interests of peace.
American precedents in this war have carried belligerent
rights a step or two further than they were carried
even by Lord Stowell. It is by the United States
that the doctrine of continuous voyages has been
applied to the transportation of contraband, and to
breaches of blockade. It is the Government of the
United States which has asserted, rightly or wrongly,
the claim of a belligerent to capture a neutral vessel
conveying a diplomatic agent of the enemy from one
502
CONCLUDING REMARKS.
Ch. XVIII, neutral port to another. It is by the United States that
the latest example has been afforded of the blockade of
an immense range of sea-coast-a blockade rigorous and
protracted, yet loose and imperfect, at least in its earlier
stages. And, as if this were not enough, we have seen
it made matter of complaint against a neutral Govern-
ment, by the representative of the United States, that
the enforcement of the blockade was left entirely to the
vigilance of the belligerent, and that blockade-running
was not prohibited by municipal law.
I do not recall these facts in order to throw blame
on the American Government, but because they show
how the point of view from which a State regards
questions of international right and expediency may
be affected by the situation in which it is placed, and
how rapidly even cherished opinions may give way
before a great and violent change of circumstances.
The history of International Law is full of such varia-
tions and inconsistencies. We ourselves are not clear
from them. Among the complaints urged by Mr. Seward
and Mr. Adams there are some which seem but repro-
ductions of those addressed by Lord Stormont and
Sir Joseph Yorke to the French and Dutch Govern-
ments during the War of American Independence. And
it would be easy to draw an effective contrast between
the severity with which Great Britain formerly enforced
the rights of belligerents, and the warmth with which
she lately asserted the rights of neutrals.
It would argue a great want of candour and gene-
rosity, did we not unreservedly admit that there is no
situation more painful and irritating than that of a
people struggling with a great and formidable revolt.
When foreign conquest hews away a province, it is a
heavy misfortune, but it is the fortune of war. But
the bitterness of a family quarrel, pushed to the last
extremity and tearing sinew and fibre asunder, rouses
the passions more effectually, and excites intenser
CONCLUDING REMARKS. .
503
Oh. XVIII.
resentment and an acuter sense of wrong. The people
of the States which adhered to the Union felt that they
were fighting not for a province, or for half-a-dozen
provinces, but for the grandeur, the security, the very
existence of their country, for the many present advan-
tages, and the almost illimitable expectations, which
were the birthright of every American citizen. I wrote
these words during the first year of the war; I write
them over again now. We may try-and we ought, if
we would be just to the Americans—to imagine their
situation our own, and realize the feelings it would
inspire. But to do this completely is beyond the power
of any one: we cannot do it, try as we will. An
almost unbounded allowance is to be made for a
people surrounded by circumstances so likely to make
them over-sensitive, impatient, and exacting. But this
does not make unreasonable pretensions just; and it
does not warrant or excuse the revival, in a more
extravagant form, after five years of profound peace,
of complaints and demands which were unjust when
originally urged during the strife and fever of the
war.
Is it a just inference that general rules of inter-
national conduct are practically useless, being so liable
as we see they are to be disturbed and shaken by
transitory causes, to be trampled underfoot in the heat
of passion, or disregarded at the solicitation of temporary
interest ? No; the conclusion is the other way. General
rules are the only security we have against a perpetual
conflict of opposing interests; the only security that
èvery question, as it arises, shall not be decided according
to the will of the most powerful or the most eager of the
parties concerned, and that the solution which on the
whole is most for the advantage of all nations shall pre-
vail over that which happens at the time to be most for
the advantage of any one particular nation. And we
see that they really effect that object to a great degree;
504
CONCLUDING REMARKS.
Ch. XVIII, that they really furnish a common standard for the
adjustment of disputes, which is useful, though the
application of it may be and often is vehemently con-
tested; and that after every transient disturbance they
regain their force. In every one of the controversies
which we have reviewed the litigants had much common
ground : a general principle was admitted, and the quarrel
was about the limits and application of the principle :
the field of dispute is thus conveniently narrowed, and
the number of disputes greatly diminished. The pro-
tection of neutral trade in war against the encroachments
of rude force, and of the sovereign rights of the lesser
Powers against the greater, is ordinarily due to general
rules, and to the interest which nations generally have
in sustaining them. It is of the highest consequence,
therefore, that such rules should be steadily asserted and
firmly defended; and it is for the advantage of the
world that there should always be Powers able and
willing to assert and defend them.
The judgment to be passed on the conduct of Great
Britain depends on the answers which may be given to
two plain and simple questions. Was her Government
right in resolving to be neutral ? Was its neutrality
sincere in intention, and enforced with reasonable
On the first of these there is really little room
for difference of opinion. As to the second, the reader,
who has patiently travelled through this history, will
decide for himself whether it be not, as I think it is,
that of an honest neutrality, steadily and on the whole
efficiently maintained, under circumstances of no common
difficulty.
The difficulties, such as they were, with which the
Government of Great Britain had to contend, lie for the
most part on the surface of this narrative, and call for
no particular explanation. But I may be permitted to
say, in conclusion, that the peace and mutual regard of
these two countries appears to be too often endangered
care?
CONCLUDING REMARKS.
505
by the very circumstances which knit them so closely Ch. XVIII.
together. They are so nearly allied by blood, by
language, and by a common literature-their habits
of political thought and action, though differing in
many ways, are so much alike-their intercourse is
so constant, that any trivial cause of offence between
them is apt to be magnified, and every trait of unfriend-
liness to be resented as coming from those who are-
“ A little more than kin, and less than kind."
But they are also free countries, and full of political
activity: accustomed to freedom of speech, they are
free-spoken; and opinion expresses itself in each of them
with little restraint and little regard to remote conse-
quences. From several causes, on which I need not
dwell, this is the case in America more than it is the
case in England. Yet Americans are at the same time
far more keenly sensitive to what we say of them than we
are to what they say of us. In truth, it is not too much
to affirm that, did the annals of our Parliament reflect in
this respect those of Congress, and did public speakers and
writers in England indulge in the same freedoms as they
do in America, there would be à rancour between the two
countries which would make the preservation of peace
well nigh impossible. During the civil war the ample
license of expression which all men enjoy in England
caused, I fear, some pain and irritation in the United
States; for feelings always sensitive become morbidly
acute in the heated atmosphere of civil war. By many
persons in England the cause of the Union was regarded
with no friendly eye, and the extent of this sentiment
was grossly and inexcusably exaggerated in America.
These exaggerations are still current, and these feelings
have not yet ceased to rankle. I know not whether it
is chimerical to hope that we may learn in time to be
more considerate towards one another. But this at
any
rate is clear, that the public responsibilities of nations are
506
CONCLUDING REMARKS.
Ch. XVIII. those of the Governments which rule them; that the
Government of a free people cannot be held accountable
for the opinions or sentiments of its subjects; and that
the only real remedy for such wounds as these is to be
sought in mutual forbearance, in candour, moderation,
and self-control.
.
INDEX.
Abbott, Mr. C. S. A., his Memorandum on Foreign Enlistment Act and
Neutrality, 410; on Law of Nationality, 454.
Alabama, the, Correspondence as to, previous to her leaving Liverpool,
338-345; Depositions as to, 362–370; her Proceedings after
leaving Liverpool, 346; her Cruise, 411, 427; her Action with the
Hatteras, 411, with the Kearsarge, 427; Question as to Survivors
saved by the Deerhound, 429.
Alabama Claims, Discussion on, 371–402.
Alabama, State of, secedes from the Union, 50.
Alexandra, the, 353.
Aliens, Domiciled or Commorant, their Rights and Obligations, 440,
443; Aliens in United States during the War, 439—457.
American Commonwealth, its Structure, 1; Separatist influences, 2;
Consolidating forces, 4.
Arbitration (International), remarks on, 494.
Arkansas secedes from the Union, 73.
Blockade, President Lincoln's Proclamations of, 79, 80; Mr. Seward's
Answers as to, 228; Blockade of Chesapeake Bay, 230; of
Charleston, 237; of Savannah and the Gulf Ports, 239; Alleged
Imperfection of, 243, 292; Character of Southern Coast, 226, 244;
Blockade respected by British Government, 245, 292; General
Remarks, 245; Effect of Blockade on the South, 286; on the
English Cotton-manufacturing Districts, 468; Doctrine of “Con-
tinuous Voyages” applied to Breaches of Blockade, 310.
Blockade-running, and Causes which promoted it, 288; Complaints of
United States as to, 295; Treatment of persons captured in
Blockade-runners, 323.
Buchanan, President, his inaction, 57.
Bullock, Captain, his employment in England, 337; orders Ships in
France, 361.
Bunch, Consul, his exequatur revoked, 185.
Carolina (North) secedes from the Union, 73.
Carolina (South) secedes from the Union, 49.
508
INDEY.
Cases referred to:
Alleman v. Booth, 13;
Admiral, The, 308;
Amy Warwick, The, 98;
Attorney-General v. Sillem, 354;
Bermuda, The, 310;
Caroline, The, 216, 219;
Catherine Elizabeth, The, 326 ;
Circassian, The, 308;
Commercen, The, 310;
Dashing Wave, The, 318;
Dispatch, The, 326;
Dred Scott v. Sandford, 16;
Golden Rocket, The, 121;
Hobbs v. Heming, 316;
Imina, The, 219, 317;
Labuan, The, 318;
Magicienne, The, 319;
Northcote v. Douglas (The Franciska), 231;
Orozembo, The, 219;
Peterhoff, The, 315;
Prigg v. Commonwealth of Pennsylvania, 25;
Prize Cases (The Hiawatha and others), 90;
Savannah (Crew of the), 120;
Science, The, 318;
Semmes v. City Fire Insurance Company, 100;
Sir William Peel, The, 319;
Springbok, The, 310;
Stephen Hart, The, 310;
Teresita, The, 318;
Texas v. White, 110;
Thorington v. Smyth and Hartley, 111;
Tropic Wind, The, 98;
Volant, The, 318;
Willo' the Wisp, The, 318.
Chesapeake, the, and other vessels, seized by Confederates, 463.
Civil War, Date of Commencement, Opinions of American Courts and
Jurists, 90.
Coaling of Belligerent Cruisers, Regulations as to, 415, 416.
Congress (Confederate), Acts passed during first Session, 62; Prize
Act, 100.
Congress (Federal), its Attitude and Proceedings during the Secession
of the South, 59.
Conscription in United States, Claims for Exemption, 443—454.
Consuls, British, expelled from the South, 472.
INDEX.
509
England, Relations with United States before the War, 122; Attitude
of the Government, 123; Anxiety at Outbreak of War, 128;
Division of Opinion in England as to the War, 465; Freedom of
Speech in England, 505.
Esperson, Professor, his Observations on the American Claims, 495.
Florida, the, despatched from Liverpool, 338; seized at Nassau, 350;
receives Guns at Green Key, 351; enters Mobile, ibid; begins
to cruise, 430; enters Brest Harbour, ibid; seized at Bahia, 433;
her end, ibid.
Florida, State of, secedes from the Union, 50.
Georgia, the, 355; at Cherbourg, 431; dismantled at Liverpool, 359,
433.
Georgia, State of, secedes from the Union, 50.
Habeas Corpus, Suspension of, in United States, 441.
Hiawatha, the, 90, 233.
Harper's Ferry seized by the Confederates, 74.
1
Iron-clads, the, at Liverpool, 355.
Levies of Troops (Confederate), 76, 87; (Federal), 85, 87, 475.
Lincoln, Mr., his Election to the Presidency, 40; his Accession, 65; his
Character and Policy, 66; his Assassination, 477; Correspondence
on it, ibid.
Louisiana secedes from the Union, 50.
Mails, Neutral Vessels carrying, Correspondence and Instructions
319.
Maritime Law, Negotiations respecting, 171–185.
Mason, Mr., bis Mission to England, 187; captured in the Trent, 189 ;
released, 213; solicits the British Government to declare
Blockade ineffective, 292; recalled, 471.
Matamoros, Trade with, and Questions which arose, 313.
Mediation, fruitless proposal of, by France, 467.
Merchant-ships, Confederate, Treatment of, in Neutral Ports, 247.
Middle States, their Indecision, 72; how terminated, 73.
Military Operations, at Commencement of War, 85; Subsequent, 458,
474.
Mississippi, State of, secedes from the Union, 50.
Munitions of War, Export of, from England to North and South, 330.
510
INDEX
Nassau, a Station for Blockade-running, 299; Restrictions imposed by
American Government on Nassau Trade, 300.
Nationality, American Law of, 444.
Naval Resources of United States at Commencement of War, 80; of
Confederacy, 82.
Negligence, Remarks on, as a ground of Complaint between Nations,
385.
Neutral Rights and Duties, Observations on, 112, 133, 164, 223, 245,
266, 273, 290, 310, 390, 402, 412, 429; Earlier American Pre-
cedents, 408.
Neutrality, Declarations and Regulations by Neutral Powers, 132,
134-150, 265, 415, 425.
Neutrality Laws, British and American, 403; Changes proposed in
England, 405; in America, 406.
Norfolk Navy Yard seized by Confederates, 74.
Oreto, the (see Florida, the).
Pampero, the, 357.
Parties in United States, 32; Disorganization of Parties caused by the
Slavery Question, 34; Conflict of Parties on this Question, 36.
Piracy, what is and what is not, 118.
Presidency, Contest for, in 1860, 39.
Privateering, Confederate Government offers Letters of Marque, 78;
Confederate Privateers, 83; Negotiations as to Privateering, 171.
Prizes, Practice of Destroying, 419.
Prosecutions in England under Foreign Enlistment Act, 361.
Rappahannock, the, 357.
Recognition of Independence, what it is, 107; of Belligerency, 114; of
the Confederates as Belligerents, Complaints of the United States,
151–166.
Rescue, Case of the Emily St. Pierre, 325.
Revolt of the Southern States from the Union, its Completeness, its
Character and Magnitude, 52, 87.
Rule of Twenty-four Hours, 273; the Nashville and Tuscarora at
Southampton, 267; the Sumter and Iroquois at Martinique, 275;
the Alabama and San Jacinto at Martinique, 411; the Florida
and Kearsarge at Brest, 432.
St. Albans Raid, 464.
Saxon, Case of the, 421.
Secession, its Legal Aspects, 41; Pleas for it, 45; Motives which led to
it, 46.
INDEX
511
Senate of United States refuses Assent to Ratification of Convention
of 14th January, 1869, 491.
Shenandoah, the, 359; her Cruise, 434.
Slavery, Character and Extension of Slavery in the South, 8; Effect
of it on the Southern people, 12; The Slavery Question in the
North and West, 13; Question of the Territories, 14; Fugitive
Slave Law, 25; President Lincoln's Emancipation Proclamation,
462.
South, Character and Temper of the People, 12, 24, 46; Southern
feeling of State Allegiance, 44; The South not at first unanimous
in Secession, 53; its obstinate Hostility and Endurance, 460, 474;
Anger against England, 470; Condition of the South after the
end of the War, 480.
Southern Confederacy, Organization of, 54.
Sovereignty, what it is, 107; Displacement of it by a Revolt, ibid;
Effects of this, 108.
Stanley, Lord, his Correspondence with Mr. Seward, 480 ; his Nego-
tiation with Mr. Reverdy Johnson, 490.
Stone Ships sunk at Charleston and Savannah, 283.
Sumter, Fort, Attempt to relieve it -- it is reduced by Confederates,
68.
Sumter, the, Cruise of, 84, 249 ; Correspondence as to, with Neutral
Governments, 250~264.
Tariff, Question of, 28.
Tenders, Employment of, 426.
Tennessee secedes from the Union, 73.
Texas secedes from the Union, 50.
Trent, Case of the, 187-225.
Tuscaloosa, Case of the, 422.
Virginia secedes from the Union, 73.
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