In replying to these and similar letters, the distinction between what had actually been done, and a virtual carrying on of war from Great Britain, or the use of British territory as a base of warlike operations, was well pointed out by Earl Russell, in letters dated the 12th June, 1862, 27th March, 1863, and 2d April, 1863;1 at the same time that he declared the determination of the British Government to use all the means in its power to prevent any breaches of the Foreign-Enlistment Act. The good faith with which those declarations were acted on was on many subsequent occasions acknowledged. Mr. Adams, on the 6th of April, 1863, with reference to certain American authorities which had been appealed to by Earl Russell and the soundness of which he (Mr. Adams) admitted, thus put his argument: "The sale and transfer, by a neutral, of arms, of munitions of war, and even of vessels of war, to a belligerent country, not subject to blockade at the time, as a purely commercial transaction, is decided by these authorities not to be unlawful. They go not a step further; and precisely to that extent I have myself taken no exception to the doctrine. But the case is changed when a belligerent is shown to be taking measures to establish a system of operations in a neutral country, with the intent to carry on a war from its ports much in the same way that it would do, if it could, from its own territory; when it appoints agents residing in that country for the purpose of borrowing money to be applied to the fitting out of hostile armaments in those very ports, and when it appoints and sends out agents to superintend in those ports the constructing, equipping, and arming ships of war, as well as the enlisting of the subjects of the neutral country, to issue forth for the purpose of carrying on hostilities on the ocean."2 The doctrine suggested in this letter, that the existence of a blockade gives to a trade in articles contraband of war with the blockaded belligerent a character different, in the view of international law, (so far as the duties of a neutral Government are concerned,) from that which it would otherwise possess, is (as Her Majesty's Government conceives) entirely unwarranted, either by reason or by authority. On the 14th November, 1863, Mr. Seward, communicating to Mr. Adams information which he had received from the Canadian authori ties, as to certain designs of emigrant insurgents in Canada against the territory of the United States, and expressing the satisfaction of the President at the friendly proceedings of those authorities, followed up a suggestion as to some possible amendments of the laws of the two nations, by the inquiry: "Could we possibly avoid conflicts between the two countries, if British shores or provinces should, through any misunderstanding, be suffered to become bases for military and naval operations against the United States ?" He then, apparently, still considered the suggestion that they had already become so, (in the language of his former letter of the 9th March, 1863,) as "extravagant, if not altogether erroneous." Yet, on the 6th of January, 1864, he wrote to Mr. Adams as if certain papers, showing "that the belligerents have a regularly constituted treasury and counting house, with agents in London for paying the wages of the British subjects who are enlisted there in this nefarious service," were sufficient to "prove, beyond a possible doubt, that a systematic naval war has been carried on for more than a year, by subjects of Her Majesty, from the British Islands as a base;" and that, by means of this evidence, the difficulty previously felt by Her Majesty's Government in acting upon remonstrances, which were Appendix to Case of United States, vol. i, pp. 665, 584, 589. 3 Ibid., p. 576. 2 Ibid., pp. 591, 592. "held inconclusive and unsatisfactory, because it was said that they were not attended with such clear, direct, and conclusive proofs of the offenses complained of as would enable the Government to arrest the offenders, and apply judicial correction to the practices indicated," had been "fully and completely removed."1 This was followed up, on the 11th of March, 1864, by another letter from Mr. Seward, in which he said: "It was seen, as we thought, early in the month of December last, that British ports, at home and abroad, were becoming a base for operations, hostile and dangerous to the United States ;" and, on the 2d of July, 1864, by a further letter, saying (with manifest reference to the trade of blockade-runners, carried on from the Bahamas and elsewere,) "You can hardly omit to inform Earl Russell that the whole of the British West India Islands are practically used by our insurgent enemies as a base for hostile operations against the United States; and the profits derived by British subjects from these enterprises are avowed in every part of the British empire with as much freedom, and as much satisfaction, as if the operations were in conformity with international law, and with treaties." 3 It is satisfactory to Her Majesty's Government to be able to add to these extracts another, from a letter written by Mr. Seward on the 28th of the same month of July, 1864: "During the latter part of the year 1863, the Government of Great Britain manifested a decided determination, not only to avoid intervention, but also to prevent unlawful naval intervention by British subjects. This manifestation produced a very happy effect in the United States." 4 95. What was, from time to time, actually and successfully done by Great Britain to prevent any unlawful equipments, or augmentation of the naval force of the Confederate Government within her territory, has been sufficiently stated in the British Case.5 The Arbitrators also know in what instances, and under what circumstances, the vigilance of Her Majesty's Government is said to have been insufficient, or to have been eluded. But a still more adequate conception of the difference, between the plans which, according to the information from time to time obtained by the agents of the United States, were formed or supposed to have been formed, for obtaining ships useful for war purposes of the Confederate States from British territory, and the actual results of those plans, (and, therefore, a more adequate conception of the general efficacy of the attitude assumed and the means used by the British Government for the maintenance of Her Majesty's neutrality,) may be arrived at from some other parts of the same correspondence, contained in the first volume of the Appendix to the Case of the United States. 6 96. In August, 1861, Mr. Seward heard, through what he considered "a very direct channel," that Captain Bullock had "contracted for ten iron steamers-gun-boats-all to be armed, at $750,000 for all, and all to come out as war-vessels." In February, 1862, he received information from Mr. Morse, the United States Consul in London, that the Confederate Agents in London and Liverpool were "engaged in preparing a whole fleet of piratical privateers," to depredate on American commerce in European waters. Mr. Adams had heard in April, 1862, that as many as fifteen vessels" were preparing to sail from British waters "to assist the insurgents." On the 28th of April, 1862, Mr. Seward wrote: "Captain Bullock, of Georgia, is understood to have written แ 8 1 Appendix to Case of the United States, vol. i, p 609. 4 Ibid, p. 508. 3 Ibid., p. 613. 5 British Case, pp. 31-50. 6 Appendix to Case of the United States, vol. i, pp. 517, 518. 7 Ibid., pp. 344, 345. 8 Ibid., p. 240. that he has five steamers built, or bought, armed, and supplied with material of war in England, which are now about being, or are on their way to aid the insurgents." In May, 1862, Mr. Dudley, the United States Consul at Liverpool, gave information to Mr. Adams and Mr. Morse of "the purchase of thirty steamers, for the purpose of making a combined attack on our coasts.2 On the 8th September, 1862, Mr. Seward wrote: "We hear, officially and unofficially, of great naval preparations which are ou foot in British and other foreign ports, under cover of neutrality, to give the insurgents a naval force. Among the reports is one that a naval armament is fitting out in England to lay New York under contribution."3 In certain intercepted letters of Confederate Agents, of August and October, 1862, it was stated that a person (an American) named Sanders had contracted with the Naval Department of the Confederate States for six iron-clad steamers from England; with respect to which he said, "great skill and diplomacy must be exercised to avoid the interference of European Governments." On the 30th December, 1862, Mr. Dudley informed Mr. Seward of the preparation of a most formidable ram at Glasgow, and two iron-clad rams in London, and three other suspected vessels, (besides the Alexandra, and the rams at Birkenhead.) In April, 1863, information came of privateers fitting out in Vancouver's Island: and at a later date, February, 1865, of an expedition against New York, to consist of "five ironclads, on their way from French and English ports," with the aid of "five blockade-running steamers, to be converted into privateers, armed with two guns each."8 195 4 97. This series of reported designs, which were never accomplished, at once proves how impossible it was for the British authorities to act indiscriminately, and without evidence, upon every alarming report and rumor which might be conveyed to them by the Agents of the United States in this country, and shows what might actually have been done, if those authorities had really been careless or negligent as to the enforcement of the law, or had really permitted Her Majesty's territory to be used as a base of hostile operations against the United States. If such designs were formed, Mr. Adams merely spoke the truth, when, writing of the Confederacy on 21st of July, 1864, he said "its audacious attempts to organize a navy in this kingdom (Great Britain) have utterly failed."9 Complaint that Confederate cruisers, visiting British ports, were not seized and detained. 98. An answer has been given to the complaints which the United States make against Great Britain in respect of the alleged equipment in British ports of vessels intended for the Confederate service, and of the original departure from British territory of vessels alleged to have been specially adapted with in it to warlike use. But it is further urged, on the part of the United States, that the four vessels now in question, (the Florida, Alabama, Georgia, and Shenandoah,) after having been procured from British ports by agents of the Confederate Govern ment, and converted into ships of war, entered, whilst cruising in that character, several ports within the Colonial possessions of Great Britain; and it is contended that, when that occurred, the British authorities were under an obligation to seize and detain them; and that for the non-performance of this obligation Great Britain is liable to the United States. 1Appendix to Case of the United States, vol. i, p. 243. 99. The demands of the United States upon Great Britain during the war were, as to many things, greatly in excess of what could be justified by international law; but an obligation like this was never suggested, except upon the view that all Confederate ships of war and privateers, which might be found upon the ocean, ought to be treated as pirates, and denied any belligerent character or belligerent rights. 100. It rests with the United States, which assert this obligation, to prove that it existed. They have attempted to support it by putting a forced interpretation on one of the clauses in the first of the three Rulesan interpretation plainly at variance with its natural and obvious meaning. If the sense thus ascribed to the Rule had been its true sense, it could have applied only to vessels which could be proved to have been specially adapted within British territory to warlike use, a description which might include the Alabama, but could not possibly include the Georgia or Shenandoah. To these, therefore, the rule, even if construed in this strained and unnatural manner, could not apply. But the reasons given in the British Counter Case (Part II, p. 17) for altogether rejecting this construction, which was not at the time within the contemplation of the high contracting parties, and is wholly repudiated by Great Britain, are, in the view of the British Government, conclusive. 101. That the argument of the United States on this point is not only unsupported by the principles which have hitherto governed the admission of public ships of war into neutral ports, but in direct conflict with those principles, has likewise been shown in the Counter Case of Great Britain, (Part II, pp. 18-20.) The general principle was there stated as follows: A vessel commissioned as a public ship of war, entering a foreign port, is a portion of the naval force of the Government by which she is commissioned, commanded by its officers, and displaying the ensigns of its authority. Any act of force directed against her (unless to prevent or repel aggression, or compel her to depart after having been required to do so by competent authority) would be directed against her Government, and would at the same time, if done without previous warning, be an infraction of a recognized understanding, on the faith of which she entered, and on the observance of which she had a right to rely. If, while in neutral waters, she commits any violation of neutrality or other offense against the neutral, force may undoubtedly be employed, in any way which may be necessary, in order to prevent or arrest the unlawful act, and to compel her departure. But redress ought not to be sought against the ship herself; it should be sought, if needful, against her Government. A fortiori, this is true if the offense were committed before she arrived at the neutral port. Thus, of the violations of neutrality committed during the war the grossest and most flagrant by far was that perpetrated by the Wachusett in the harbor of Bahia. The Brazilian authorities would have been amply justified in firing on that vessel while engaged in the act, and sinking her if necessary. If she had afterward presented herself in a Brazilian port, they would doubtless have refused her admission; but they would have rightly abstained, even on such provocation, from seizing and detaining her. A multo fortiori, the same proposition holds good if the act complained of were done before the offending ship came into the possession of the commissioning Government, or before she was incorporated into its naval service. The British Government believes this statement to be agreeable to authority, and to general usage. It is supported by the American judgments, in the cases of the Santissima Trinidad1 and the Exchange.2 102. Were then these vessels, supposing it proved that they or any of them had, before being commissioned, become liable to seizure for an offense against law, (the proof of which rests with the United States,) not correctly regarded by the British Colonial authorities as public commissioned ships? It would be enough to answer that, if this were so, the same error was committed by the authorities of France, 1 Appendix to British Case, vol. iii, p. 86. 2 See British Counter Case, p. 20, note. Brazil, the Netherlands, and other neutral Powers, and similar accusations might with equal justice be directed against them also.1 error was committed either by those Powers or by Great Britain. The vessels in question entered the ports of neutral nations with those evidences of being public commissioned ships, which by universal usage would have been accepted as sufficient if they had borne the flag of a recognized sovereign State; and these evidences were accepted in other neutral ports as well as those of Great Britain. There is no reason to doubt that they were in fact validly commissioned, according to established usage under the authority of commissions and orders issued by the Government of the Confederate States. The circumstance that the particular act by which the vessel was invested with a public character was in each case done, not within the territory held and controlled by that Government, but at sea, was not, according to usage, material, since it is perfectly competent for any Government to commission, out of its dominions, vessels which may never have been within the circuit of them, and this has been of no infrequent occurrence. Indeed, in the very year 1864, in which the Shenandoah was commissioned, a merchant vessel called the Takiang was chartered and commissioned for the United States naval service at Shanghai, and an officer, a party of men, and a gun having been placed on board of her, she was dispatched to join the allied fleet in Japan, where she took part in the action fought at Simonasaki on the 4th of September.3 103. The only question, therefore, which remains is, whether the circumstance that the Confederate States, though recognized as belligerent, had not been recognized as sovereign, made it the duty of the authorities of neutral ports, in this one particular respect, not to treat vessels commissioned by the Confederate Government as they would have been bound to treat commissioned ships of a recognized Power. The answer to this question cannot be doubtful, if we consider, in the first place, the principle of a recognition of belligerency; and, secondly, the reason of the general immunity from local jurisdiction everywhere conceded to public vessels of war. 104. A neutral power which recognizes as belligerent a community which it has not recognized as sovereign, thereby allows, as against itself, to that community all the jura belli; the first of which is the right to employ military and naval forces, and to make provision, in the customary modes, for their command and discipline. The right to appoint and commission officers, and to commission ships of war, is essential to the exercise of the jus belli at sea; regular warfare-in other words, war regulated, controlled, and moderated by established rules. and usages-would, indeed, be impossible without it; such commissions, therefore, are of necessity recognized by the neutral Power; and vessels armed with them are allowed to exercise, as against the ships and subjects of the neutral, those jura belli, which are by usage exercisable by regularly commissioned ships. To merely honorary privileges, such as salutes and the like, officers of a Government not recognized as sovereign have no claim, though no law or custom forbids that the courtesies which officers of different nations are accustomed to exchange should be shown to them personally. The British Government, during the war, 1 British Case, pp. 12, 17. Appendix to British Case, vol. vi, pp. 1-148. British Counter Case, pp. 119–123. 2 As to this, see British Case, p. 24. 3 Correspondence respecting affairs of Japan, (Japan No. 1, 1865,) presented to Parliament 1865, pp. 100-109. |