have taken would have been to wait till Mr. Adams arrived here, and to have discussed the matter with him in a friendly manner, explaining the ground upon which the English Government had felt themselves bound to issue that proclamation, and representing that it was not done in any manner as an unfriendly act toward the United States [63] Government. But no *precaution whatever was taken. It was done with unfriendly haste, and had this effect: that it gave comfort and courage to the conspiracy at Montgomery and at Richmond, and caused great grief and irritation among that portion of the people of America most strongly desirous of maintaining amicable and friendly relations between their country and England." proclamation not The United States have made this review of the course The sovereign pursued by Great Britain in recognizing the insurgents as right to issues.ch a belligerents, with no purpose of questioning the sovereign denied. right of that Power to determine for itself whether the facts at that time justified such a recognition. Although the United States strenuously deny that the facts as they then were known to Her Majesty's Government did justify that Government in conferring upon the rebellious citizens of the United States the privilege of belligerents, and still less justified it in counseling France to do the same thing, yet they recognize and insist that (in the language of the President to Congress on the 6th day of December, 1869) a "nation is its own judge when to accord the rights of belligerency, either to a people struggling to free themselves from a government they believe to be oppressive, or to independent nations at war with each other."1 [64] But while thus firmly insisting upon the sovereign rights of independent nationality, they also maintain "that the rightfulness of such an act depends upon the occasion and the circumstances, and it is an act, like the sovereign act of war, which the morality of the public law and practice requires should be deliberate, seasonable, and just, in reference to surrounding facts;" and "they regard the conces sion of belligerency by Great Britain as a part of this case only so far as it shows the beginning and animus of that course of conduct which resulted so disastrously to the United States." And issued with an Viewed in this light, the United States, with deep and unfeigned regret, have been forced to conclude, from all the circumstances, that Her Majesty's Government was actuated at unfriendly purpose. that time by a conscious unfriendly purpose toward the United States. In the language af a continental publicist, "L'Angleterre a été bien pressée de faire usage de son droit strict pour constater Mr. Rolin-Jacque solennellement que l'Union Américaine était ébranlée, et myns on the Queen's donner aux insurgés, ce que le monde entier a considéré tout au moins comme un appui moral; [65] * * proclamation. l'acte a été posé la veille du jour où le nouvel ambassadeur américain, M. Adams, devait débarquer à Londres, et au moment où positivement les insurgés n'existaient pas comme puisance navale, où ils n'avaient de marine et de tribunaux de prise que sur le papier." 224 This precipitate and unfriendly act of Great Britain did not go forth alone. On the 6th of May, 1861, five days before the re- Unfriendly con* ceipt of the authentic copy of the President's Proclama- duct of Great Brit tion, Lord John Russell instructed Lord Cowley, the British rations of the ConAmbassador at Paris, to ascertain whether the Imperial 1 Annual Message of the President to Congress, 1869. 2 Mr. Fish to Mr. Motley, September 25, 1869. Vol. VI, page 4. 3 Mr. Fish to Mr. Motley, May 15, 1869. Vol. VI, page 1. ain as to the decla gress of Paris. 4 De la neutralité de la Grande-Bretagne pendant la guerrre civile américaine d'aprés M. Montague Bernard, par G. Rolin-Jacquemyns, page 11. Government was disposed to make a joint endeavor with Her Majesty's Government "to obtain from each of the belligerents [observe that the insurgents were styled "belligerents" seven days in advance of the Queen's proclamation] a formal recognition of the second and third articles of the Declaration of Paris." Lord Cowley, on the 9th of May, informed Lord John Russell that "the Imperial Government concurred entirely in the views of Her Majesty's Government, and would be prepared to join Her Majesty's Government in endeavoring to obtain of the belligerents a formal recognition of the second and third articles of the Declaration of Paris."1 This proposition to open direct negotiations *with the insur- [66] gents was the second step in the joint action which had been agreed upon. For reasons which Her Majesty's Government is in a position to explain, but which can only be conjectured by the United States and by the Tribunal, care appears to have been taken to prevent the knowledge of it from reaching the Government of the United States. On the receipt of the information from Lord Cowley, Lord John Russell prepared at once a draught of instructions to Lord Lyons, the British Minister at Washington, and, on the 16th of May, sent them to Lord Cowley to be submitted to the Emperor's Government.2 On the next day Lord Cowley replied that he had seen M. Thouvenel, the Minister for Foreign Affairs, and added: "M. Thouvenel had already written to M. Mercier [the French Minister at Washington] in the same terms as your Lordship proposes to address your instructions to Lord Lyons. I need hardly add that His Excellency concurs entirely in the draught." On the 18th of May Lord John Russell hastened to send his instructions to Lord Lyons.3 He told him "to encourage the Government" of the United States "in any disposition which they might evince to recognize the Declaration of Paris in *regard to privateering;" [67] and he added that "Her Majesty's Government do not doubt that they will, without hesitation, recognize the remaining articles of the declaration." He continued: "You will clearly understand 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 operations of vessels holding from them such letters of marque;" and he closed by instructing Lord Lyons to take such means as he might judge most expedient to transmit to Her Majesty's Consul at Charleston or New Orleans a copy of a previous dispatch of the same day, in order that it might be communicated to Mr. Jefferson Davis at Montgomery. Lord Lyons had no instructions to show to Mr. Seward the dispatch from which these citations have been made, and it evidently was contemplated that he should not exhibit it. He was, however, to read to him the previous instructions of the same date referred to in that dispatch, and to leave a copy with him,'if desired. These previous instructions, numbered 136, may be found on the 107th page of the first of the accom*panying volumes. It [68] was not only to be shown to Mr. Seward, but a copy of it was to be shown to Mr. Jefferson Davis.3 The attention of the Tribunal of Arbi 1 Vol. I, page 49. 2 Vol. I, page 50. 3 Vol. I, page 51. tration is, in this connection, particularly invited to the fact that these instructions, numbered 136, contain nothing indicating a design on the part of the British Government to put itself in communication with the insurgent authorities, nothing to induce Mr. Seward to think that they were other than what, on their face, they purported to be, a communication from the Government of Great Britain to the Government of the United States, through the ordinary diplomatic channel. that the The instructions to Lord Lyons might have been regarded as a cause of war. It is not improbable that the Arbitrators may be of opinion use of the British Legation at Washington for such a purpose was an act which the United States would have been justified in regarding as a cause of war. It was, to say the least, an abuse of diplomatic privilege, and a violation, in the person of Her Majesty's Principal Secretary of State for Foreign Affairs, of the duties of neutrality which Her Majesty's Government was about to impose upon her subjects. Before relating what Lord Lyons did, under these instructions, it is necessary to pause in order that the Tribunal may be informed what Mr. Seward and Mr. Adams had been doing in the same *matter simultaneously with the proceedings which have been detailed. [69] Former negotia Declaration of the In the year 1854 the Government of the United States submitted to the principal maritime nations two propositions, soliciting their assent to them as permanent principles of interna- tions regarding the tional law. These propositions were, that free ships should Congress of Paris. make free goods; and that neutral property on board an enemy's vessel should not be subject to confiscation unless contraband of war. Great Britain, being then at war with Russia, did not act upon these propositions; but in the Congress which assembled at Paris when the peace of 1856 was made, Great Britain and the other nations, parties to the Congress, gave their assent to them, and to two other propositionsthe abolition of privateering, and the necessity of efficiency to the legalization of a blockade. It was also agreed that the four propositions should be maintained as a whole and indivisible, and that the Powers who might accede to them should accede to them as such.1 Great Britain then joined in inviting the United States to give its adhesion to the four indivisible points. The Washington Cabinet of that day replied that the United States was willing to assent to all the [70] propositions, except the one relating to privateering, as being, in fact, recognitions of principles which had always been maintained by them; but that they could not consent to abolish privateering without a further agreement to exempt private property from capture on the high seas; and they proposed to amend the declaration of the Congress of Paris in that sense, and offered to give their adhesion to it when so amended. In January, 1857, the proposals of the United States not having been acted upon, their Minister at London was directed to suspend negotiations until the new President, Mr. Buchanan, could examine the subject; and the suspension continued until after Mr. Lincoln was inaugurated. On the 24th of April, 1861, less than two months after Mr. Lincoln's accession to power, Mr. Seward resumed the suspended negotiations by instructing Mr. Adams2 (similar instructions being given to the Ministers of the United States to the other maritime powers) to give an unqualified S. Ex. 31 1 24th Protocol, April 16, 1856, Congress of Paris. 3 assent to the four propositions, and to bring the negotiation to a speedy and satisfactory conclusion. [71] Owing, probably, to the interruption in the communications between Washington and New York when the dispatch of April 24 was written, Mr. Adams does not appear to have been able to *communicate his instructions to Lord John Russell before the 21st of May. He then informed Lord John that he had received instructions to negotiate, which he would "submit to his consideration if there was any disposition to pursue the matter further." Lord John Russell "expressed the willingness of Great Britain to negotiate, but he seemed to desire to leave the subject in the hands of Lord Lyons, to whom he intimated that he had already transmitted authority to assent to any modification of the only point in issue which the Government of the United States might prefer.”1 He did not inform Mr. Adams that he also proposed to open negotiations with the insurgents, nor had Mr. Adams reason to suspect that fact. Matters were thus suspended in London, to enable Lord Lyons to work out Lord John Russell's instructions at Washington and in Richmond. Lord Lyons received the dispatches of the 18th of May on the 2d of June,2 and at once conferred with Mr. Mercier. It was agreed that they should try to manage the business so as to prevent "an inconvenient outbreak from the Government "3 of the United States. He then notified Earl Russell of what they proposed to do, and informed him of the instructions to Mr. Adams on this subject. He also intimated that it would be unreasonable *to expect that the insurgents should abandon privateering, unless "in return for some great concession." What concession remained to be given except recognition of national independence? Lord Lyons's inter ard. [72] It was not until the 15th of June that Lord Lyons and Mr. Mercier communicated the purport of their instructions to Mr. Sewview with Mr. Sew- ard in a joint interview, of which we have Mr. Seward's account and Lord Lyons's account,5 both dated the 17th of June. These accounts do not differ materially. The action as to the British Minister was this: Lord Lyons stated that he was instructed to read a dispatch to Mr. Seward and to leave a copy with him if desired. Mr. Seward refused to permit the dispatch to be read officially, unless he could first have an opportunity to acquaint himself with its contents. Lord Lyons handed him Lord John Russell's No. 136 for the purpose of unofficial examination. Mr. Seward saw that it spoke of the insurgents as belligerents, and on that ground refused to permit it to be officially communicated to him. He added that he preferred to treat the question in London, and Lord Lyons left with him, unofficially, a copy of Lord John Russell's 136, in order that he might more intelligently instruct Mr. Adams. The instructions thereupon written to Mr. *Adams are in the [73] same tone. Mr. Seward expresses regret that the British and French governments should have seen fit to take joint action in the matter; he refuses to admit that there are two belligerent parties to the struggle; he expresses regret that Great Britain did not await the arrival of Mr. Adams before instructing Lord Lyons, as Mr. Adams's instructions covered the whole ground; but he nowhere manifests a knowledge of the purpose of Great Britain to enter into communica 1 Vol. I, page 52. 2 Vol. I, page 55. 3 Vol. I, page 56. tions with the insurgents at Richmond. That was studiously concealed from him. Termination of United States. with The negotiations were then transferred again to London, to the "profound surprise" of Mr. Adams. They were protracted there until the 19th of August, when Lord Russell informed negotiations Mr. Adams that Great Britain could only receive the assent of the United States to the Declaration of Paris upon the condition that Her Majesty should not thereby "undertake any engagement which should have any bearing, direct or indirect," upon the insurrection. The United States declined to be put upon a different footing from that of the forty-two independent Powers enumerated in Lord Russell's No. 136 to Lord Lyons, whose assent had been received without conditions, and the negotiations dropped. vateering. [74] *The arbitrators will thus perceive that Her Majesty's Government, having recognized the insurgents as belliger- Great Britain deents, felt itself bound to receive the assent of the United sired to legalize priStates to the declarations of the Congress of Paris only conditionally, so as to have no Dearing upon letters of marque that might be issued by the insurgents. But they will also observe that the two steps of the recognition of belligerency and the invitations to assent to the second and third clauses in the declarations were taken simultaneously, in accordance with a previous arrangement for joint action; and it is not impossible that they may come to the conclusion that Her Majesty's Government, when the insurgents were recognized as belligerents, contemplated that they would proceed to issue letters of marque, and intended to legalize those letters in the eye of British law, and to countenance the bearers of them in the destruction of American com merce. Meanwhile Lord Lyons had not forgotten his instructions to secure the assent of Mr. Jefferson Davis to the second and third rules of the Declaration of Paris. On the 5th of July he sent instructions to Mr. Bunch, British Consul at Charleston, to "obtain from the existing government in Negotiations at those [the insurgent] States securities concerning the [75] Richmond. proper treatment of neutrals.”1 He inclosed a copy of *Lord Russell's 136. He advised Mr. Bunch not to go to Richmond, but to communicate through the governor of the State of South Carolina ; and he accompanied this with "a long private letter on the same subject." The nature of that private letter may be gathered from what Mr. Bunch did. He put himself and his French colleague at once in communication with a gentleman who was well qualified to serve his purpose, but who was not the governor of South Carolina. They showed to this agent Lord John Russell's dispatch to Lord Lyons, and Lord Lyons's official and private letters to Mr. Bunch, and they told him that the step to be taken was one of "very great significance and importance." The agent asked them whether they "were prepared to receive an official act which should be based upon their request, thus giving to the Confederate Government the advantage before the world of such an implied recognition as this would afford.” 3 They replied that they "wished a spontaneous declaration ;"" that to make this request the declared basis of the act would be to proclaim this negotiation, and the intense jealousy of the United States was such that this would be followed by the revocation of their exequaturs," which they wished to avoid; that could 2 Vol. I, page 123. 3 Manuscript in Department of State. 1 Vol. I, page 71. |