VI.-REPLY OF MR. WAITE, AUGUST 8, TO THE ARGUMENT OF SIR ROUNDELL PALMER, UPON THE SPECIAL QUESTION AS TO SUPPLIES OF COAL IN BRITISH PORTS TO CONFEDERATE SHIPS. (SEE PROTOCOL XIX.)

The "special question as to supplies of coal in British ports to Confeder ate ships," necessarily involves an examination of the facts and circumstances under which permission to take such supplies was granted.

It is not contended by the Counsel of the United States, that all supplies of coal in neutral ports to the ships of war of belligerents, are necessarily violations of neutrality, and, therefore, unlawful. It will be sufficient for the purposes of this controversy, if it shall be found that Great Britain permitted or suffered the insurgents "to make use of its ports or waters as the base of naval operations against the United States," and that the supplies of coal were obtained at such ports to facilitate belligerent operations.

A base of opera

1. All naval warfare must, of necessity, have upon land a "base of operations." To deprive a belligerent of that is equivalent to depriving him of the power to carry on such a warfare tons essential to successfully for any great length of time. Without it he cannot maintain his ships upon the Ocean.

naval warfare.

What it is.

2. A "base of operations" for naval warfare is not alone, as seems to be contended by the distinguished Counsel of Great Britain, (sec. 3, chap. iii, of his Argument,) "a place from which operations of naval warfare are to be carried into effect." It is not, of necessity, the place where the belligerent watches for, and from which he moves against, the enemy; but it is any place at which the necessary preparations for the warfare are made; any place from which ships, arms, ammunition, stores, equipment, or men are furnished, and to which the ships of the navy look for warlike supplies and for the means of effecting the necessary repairs. It is, in short, what its name implies-the support, the foundation, which upholds and sustains the operations of a naval war.

This was the doctrine recognized by Earl Russell on the 25th of March, 1862, three days after the Florida got out from the port of Liverpool, and while the correspondence in reference to her construction and outfit was fresh in his mind. In writing to Mr. Adams, at that time, in reference to complaints made of the treatment of the United States vessel of war Flambeau at Nassau, in the month of December previous, he used this language:

On the other hand, the Flambeau was avowedly an armed vessel in the service of the Federal Government. She had entered the port of Nassau, and had remained there for some days, without any apparent necessity for doing so, and the authorities had not been informed of the object of her visit. To supply her with coal might, therefore, be to facilitate her belligerent operations, and this would constitute an infraction of the neutrality prescribed by the Queen's proclamation of the 13th of May last. (Am. App., vol. i, p. 348.)

3. This "base of operations" must be within the territory of the belligerent or of his ally. A neutral which supplies it violates his neutrality, and may be treated as an ally. A bellig

It should not be in

neutral territory.

erent using without permission the territory of a neutral for such a purpose, commits an offense against the laws of neutrality, and subjects himself to the forcible expulsion of his ships of war, and to all other means of punishment and redress which may be requisite for the vindication of the offended neutral sovereign.

The insurgents had

4. After the end of the summer of 1861, the insurgents never had any available base of operations for naval warfare within the no such base within limits of their own territory. From that time forward until their own territory. the end of the contest, the United States maintained a blockade of all the insurgent ports, which was recognized by all neutral nations as lawful, and was so far effective as to prevent any vessel of war (unless the Tallahassee and Chickamauga, with perhaps some other small vessels, should be excepted) from using these ports as a base for hostile operations upon the sea. No supplies for such operations were ever obtained there, nor were any repairs effected.

It is true, the Nashville escaped through the blockade from the port of Charleston, but when she escaped she was in no condition for war, and within three days was at Bermuda in want of coal. After there taking on board a full supply, she was enabled to make her voyage of eighteen days to Southampton. The Florida ran the blockade inwards and reached Mobile, where she was detained, more than four months, by the naval forces of the United States. At the end of that time she effected an escape, but with only a short supply of coal, for within ten days after her escape she appeared at Nassau "in distress for want of coal." After having been fairly set upon her cruise from Nassau, she not unfrequently remained at sea two months and more without renewing her supply.

5. This was at all times known to the British Government. The blockade was the subject of frequent correspondence between Mr. Adams and Earl Russell, and was acknowledged to be sufficiently effective to bind neutrals.

Great Britain knew this.

The advantages of

6. By depriving the insurgents of the use of their base of naval operations at home, the United States obtained a decided these facts to the and important advantage in the progress of the war. It was United States. a war, on the part of the United States, for the suppression of a wide-spread rebellion against the authority of the Government. At the outset, the power of the insurgents appeared so great, and their organization was so complete, that, in the opinion of the British Government, it was proper they should stand before the world and be recog nized as beligerents. The territory, which they claimed as their own and sought to control, embraced a large extent of sea-coast, well supplied with ports and harbors, available for all the purposes of commerce and naval warfare. In fact, it embraced two out of the five navy-yards of the United States, and a port at which extensive preparations had been made for the establishment of a sixth.

The people of the States not in rebellion, but remaining loyal to the Government, were a commercial people, and largely engaged in navigation. At the commencement of hostilities, the insurgents proclaimed their intention of making war upon this commerce. To prevent this, and to keep such ports as were in the possession of the insurgents from being used as bases of the operations for such a war, the United States at once determined to establish and effect their blockade. With the superior power and resources under the control of the Government, it was able to accomplish this work; and before the insurgents could supply themselves with ships of war, their ports were closed against all effective operations from their own territory as a base.

This advantage was one the United States had the right to retain if within their power so to do. No neutral nation could interfere to prevent it.

surgents to obtain

neutral territory.

7. The loss which the insurgents had thus sustained at home, they endeavored to repair by the use of the ports and territorial Efforts of the inwaters of neutral nations; and, in point of fact, they did carry bases of operations in on substantially their entire naval warfare against the commerce of the United States from a base of operations outside of their own territory. This fact is not denied. It is entirely separate and distinct from that of "permission" or "sufferance," which only becomes important when it is sought to charge the neutral, whose territory is used, with the consequences of the use.

8. Toleration by a neutral of the use of its ports and waters by the ships of war of a belligerent to facilitate the operations of Toleration of use his naval warfare, is equivalent to a permission to use such equivalent ports and waters as a base of naval operations.

mission.

to per

This principle was recognized by the Emperor of Brazil in his instructions to the presidents of his provinces on the 23d of June, 1863, (Brit. App., vol. i, p. 292.) It was adopted by Earl Russell on the 12th of June, 1862, after the original escape of the Florida from Liverpool, and before the commencement of the correspondence in reference to the construction and outfit of the Alabama, when, in a letter addressed to Mr. Adams, he said:

Attempts on the part of the subjects of a neutral government to take part in a war, or to make use of the neutral territory as an arsenal or barrack for the preparation and inception of direct and immediate hostilities against a state with which their government is at peace, as by enlisting soldiers or fitting out ships of war, and so converting, as it were, neutral territory into a hostile depot or post, in order to carry on hostilities therefrom, have an obvious tendency to involve in the war the neutral government which tolerates such proceedings. Such attempts, if unchecked, might imply, at least, an indirect participation in hostile acts, and they are, therefore, consistently treated by the government of the neutral state as offenses against its public policy and safety, which may thereby be implicated. (Am. App., vol. i, p. 665.)

If such proceedings by subjects, when "tolerated" or "unchecked," may imply an indirect participation by the neutral in the hostile acts of a belligerent, how much stronger is the implication when the proceedings are those of the belligerent himself.

9. It will not be denied that "toleration," "permission," or "sufferance," by a neutral, in this connection, implies a knowledge Toleration implies of the act or thing tolerated, permitted, or suffered; or, that knowledge. which is equivalent, a culpable neglect in employing the means of obtaining such knowledge.

Great Britain had believe that the inuse its ports.

reasonable ground to surgents intended to

10. As early as the escape of the Florida from Liverpool, on the 22d of March, 1862, the British Government had knowledge, or, to say the least, had "reasonable grounds to believe," that an effort was being made by the insurgents to supply, in part, the loss of their own ports, for all the purposes of war upon the Ocean, by the use of those of Great Britain. From that time forward it knew that the insurgents relied entirely upon the ports and waters of neutral nations for the success of their naval warfare. This fact was so notorious, and so well understood in Great Britain, that it was made the subject of special comment by Earl Russell in the House of Commons during the progress of the war. (Am. App., vol. v, p. 535.) 11. All the really effective vessels of war ever used by the insurgents were obtained from Great Britain. This is an undisputed fact. Two, certainly, the Florida and the Alabama, were sels of war constructed and specially adapted for warlike use in Great

Their effective vescame

from Great Britain,

Britain, under contracts for that purpose made directly with the insurgent authorities. All this was known by the British Government, long before either of these vessels, after completing their armament and receiving their commissions, appeared at any of the ports of the Kingdom, asking permission to coal or to repair; in fact, it was known before they had appeared in the ports of any nation.

For the purposes of this argument, it matters not whether Great Britain did or did not use due diligence to prevent the construction or escape of these vessels. The fact that the insurgents, in procuring them, committed an offense against the neutrality laws of the realm, and subjected themselves to punishment therefor, remains undisputed. The individual agents, who, within British jurisdiction, committed this crime against British municipal law, made themselves subject to the penalties of that law. The authorities of the insurgents, who promoted the crime, subjected themselves to such measures as Great Britain might see fit to adopt in order to resent the wrongs inflicted on her, and to cause her sovereignty to be respected.

When obtained they were without a base of operations.

12. When these vessels were upon the sea, armed and fitted for war, the insurgents had advanced one step towards providing useless themselves with the means of prosecuting a war against the commerce of the United States; but they needed one thing more to make any war they might wage successful, and that was a base of operations. Without this, the United States would still, to a limited extent, have remained in the possession of the advantages they had gained by a successful blockade. The great difficulty to be overcome was the supply of coals. To no nation could this fact be more apparent than to Great Britain, the flag of whose magnificent navy was at that time almost constantly afloat in all the principal seas of the world.

They might have

British ports.

13. Great Britain had the undoubted right, upon the discovery of these offenses committed by the insurgents against her been excluded from municipal laws, and of their violations in her territory of the laws of nations, to exclude by force, if necessary, the vessels, in this manner placed upon the seas, from all the hospitalities usually accorded to naval belligerents, in the ports and waters of the kingdom.

This was the prompt decree of Brazil, when her hospitality was abused by one of these vessels. (Brit. App., vol. i, p. 293.) The Counsel of Great Britain does not deny the power of the British Government to make the same orders.

This would have

14. In this way Great Britain might, to a great extent, have prevented the consequences of the original crime committed within prevented the inju her own jurisdiction. It was her duty to use due diligence ries which followed. in her own ports and waters, and, as to all persons within her jurisdiction, to prevent the departure of such a vessel from her territory. If, notwithstanding her diligence, such a vessel was constructed within, and departed from, her jurisdiction, then good faith toward a nation with which she was at peace required that she should, as far as possible, curtail the injurious consequences of the unlawful act which she had been unable to prevent. She owed no comity to a nation that had abused her hospitality. She was under no obligations to open her ports to a belligerent that had violated her neutrality. No belligerent had the right to demand the use of her ports for the accommodation of his ships of war. It was a privilege she could grant or not as she pleased, and if in this respect she treated both belligerents alike, neither had the right to complain. An order which excluded all guilty of the

same offense would have operated alike on all who were guilty, but would not have included the innocent.

Great Brita to prevent

ritory

15. The United States had the right, as they did, to demand of Great Britain, that she should use all means within her power to The United States avoid the consequence of her failure to prevent the use of requested her territory for these unlawful purposes. As has been this abuse of its terseen, the insurgents commenced in Great Britain their violations of these particular laws of neutrality. They were flagrant acts. They were accomplished in spite of the United States. They were high offenses against the authority and dignity of the government of Great Britain, and, as Earl Russell afterward said, "totally unjustifiable and manifestly offensive to the British Crown." (Am. App., vol. i, p. 631.) To permit them to pass unrebuked was to excuse them, and was to encourage future transgressions.

As was subsequently, on the 27th of March, 1863, said by Mr. Adams, in a conversation with Earl Russell upon this subject:

What was much needed in America was not solely evidence of action to prevent these armaments. It was the moral power that might be extended by the Ministry in signifying its utter disapproval of all the machinations of the conspirators against the public peace. Hitherto the impression was quite general, as well in America as in this country, that the Ministry held no common sentiment, and were quite disposed to be tolerant of all the labors of these people, if not indifferent to them. Here they were absolutely sustaining the rebels in the prosecution of the war by the advance of money, of ships, and of all the necessaries with which to carry on as well by sea as on the land; and upon such notorious offenses Ministers had never yet given out any other than an uncertain sound. The effect of this must be obvious. It encouraged the operations of British instigators of the trouble on this side, who believed that they were connived at, and, so believing, carried on their schemes with new vigor. (Am. App., vol. iii, p. 125.)

Nothing can add to the force of these words. Omission by the British Government to act under such circumstances was nothing less than toleration of the abuses complained of. It was, in short, an implied permission to continue the unlawful practices.

16. Great Britain not only neglected during the whole war to take any measures by which any of the offending vessels of the Great Britain reinsurgents would be excluded from the hospitalities of her fused to prevent it. ports, and their agents prevented from using her territory for facilitating their belligerent operations, but she in effect refused so to do. She did not even send remonstrances to the government of the insurgents, or to any of its agents residing and conducting its affairs within her own jurisdiction.

On the 4th of September, 1862, Mr. Adams, in a communication to · Earl Russell, called attention to the fact that the Agrippina, the bark which had taken a part of the armament to the Alabama, was preparing to take out another cargo of coal to her, and asked that something might be done which would prevent the accomplishment of this object. (Brit. App., vol. i, p. 209.) This communication, in due course of business, was referred to the Commissioners of Customs, who, on the 25th of the same month, reported: "That there would be great difficulty in ascertaining the intention of any parties making such a shipment, and we do not apprehend that our officers would have any power of interfering with it, were the coals cleared outward for some foreign port in compliance with the law. (Brit. App., vol. i, p. 213.) Thus the matter ended.

If there was no power in the officers of the customs to interfere with the shipment of the coals, there certainly was ample power in the Government to prohibit any offending belligerent vessel from coming into the ports of Great Britain to receive them. That, if it would not have