[262]

*E.

Translation of the opinion of Mr. Berryer.

The undersigned, formerly advocate, after examination of the consultative memoir presented in the name of the United States of America, together with the documents justificative, hereto annexed, and after deliberation upon the questions submitted to him, is of the following opinion:

From the exposé contained in the memorandum and the accompanying documents results the complete proof of the facts, which it will be advantageous first to recapitulate.

In the month of February, 1861, several of the Southern American States, until that time under the Government of the Federal Constitution of the United States, resolved to separate themselves from the Northern States, and assembled a congress for the purpose of constituting the government of the Confederate States of America. War between the confederates and the Federal Government broke out in the month of April.

On the 10th of June, in the same year, in the official part of the Moniteur, a declaration appeared, submitted by the minister of foreign

affairs to the Emperor of the French and by him approved. [263] *By this solemn act the Emperor, considering the peaceful relations existing between France and the United States of America, resolved to maintain a a strict neutrality in the struggle commenced between the Government of the Union and the States pretending to form a distinct confederation.

It declares, among other things:

3. All Frenchmen are forbidden to take a commission from either of the two parties for arming vessels of war, or to co-operate in any manner whatsoever in

* *

the equipment or armament of a war-vessel or corsair of either of the parties.

5. Frenchmen residing in France or in other countries will be required equally to abstain from every act which, committed in violation of the laws of the empire or of the laws of nations, could be considered as a hostile act by one of the parties, and contrary to the neutrality which we have resolved to maintain.

The imperial declaration ends thus:

Offenders against the prohibitions and recommendations contained in the presen declaration will be prosecuted, if opportunity shall offer, in conformity with the terms of the law of the 10th of April, 1825, and of articles 84 and 85 of the penal code, without prejudice to the application which may be made in the case of such offen[264] ders of the terms of article 21 of the code Napoléon, and of articles 65 and following of the decree of the 24th of March, 1802, concerning the merchant marine, 313 and following of the penal code for the navy.

In spite of this public declaration of the neutrality of France, in spite of the formal prohibitions which it pronounces in conformity with the law of nations and the special laws of France, an agreement was signed on the 15th of April, 1863, between Lucien Arman, ship-builder at Bordeaux, and James Dunwoody Bullock, an American, agent of the confederate government, stipulating that it is by the order and for the account of his principal, whose duly-executed power of attorney it declares him to have produced.

For the execution of the agreement Mr. Bullock names the bankinghouse of Mr. Erlanger, of Paris.

By this agreement Mr. Arman "engages to construct four steamers of four hundred horse-power, and arranged for the reception of an armament of from ten to twelve cannons."

It is stipulated that Mr. Arman shall construct two of these ships in

his yards at Bordeaux, and shall intrust the execution of two other ships to Mr. Voruz, to be constructed at the same time in his yards at Nantes. To disguise the destination of these four ships the agreement states that they are intended to establish a "regular communication between Shanghai, Jeddo, and San Francisco, passing the strait of Van [265] Dieman, and also that they are to *be fitted out, should the opportunity present itself, for sale to the Chinese or Japanese empire." Finally Mr. Bullock engages to make known to the constructors the banking-house which will be charged with effecting the payment at Paris of the price of each of these ships, which is fixed at the sum of 1,800,000 francs.

The 1st of June following, Mr. Arman, in order to conform to the royal ordinance of 12th July, 1847, addressed to the minister of marine a demand for authorization to supply with an armament of twelve to fourteen thirty-pound cannon four steamships, iron-clad, in process of construction, two in his ship-yards at Bordeaux, one in that of Jollet & Babin at Nantes, and one in that of Mr. Dubigeon at Nantes.

These ships (it is said in the letter addressed to the minister) are destined for a foreign shipper, to do service in the Chinese seas and on the Pacific between China, Japan, and San Francisco. Their special armament has the additional object of permitting their eventual sale to the government of China and Japan.

The cannons will be made under the superintendence of Mr. Voruz, sr., of Nantes. Mr. Arman's letter ends as follows:

The construction being under way since the 15th of last April, I pray your excellency to grant Mr. Voruz, as soon as possible, the authorization I solicit and which the royal ordinance of July 12, 1847, requires.

Upon this exposé, and for the supposed destination of the four ships, authorization was accorded by the minister of marine on the 6th June, as requested by Mr. Arman.

[266] *On the same 6th of June Mr. Slidell, another agent of the government of the Confederate States, addressed to Mr. Arman the

following letter:

In consequence of the ministerial authorization which you have shown me, and which I deem sufficient, the agreement of the 15th of April becomes obligatory.

Three days after, the 9th of June, Mr. Erlanger, a banker at Paris, whom Bullock had named in the agreement of the 15th of April, and who was to guarantee the payments to the constructors of the four ships, wrote to Mr. Arman :

I engage to guarantee you the first two payments for the ships which you are building for the confederates, in consideration of a commission, &c.

The financial conditions proposed by Mr. Erlanger were accepted by Mr. Arman, who, the same 9th of June, addressed to Mr. Voruz, at Nantes, the following telegram:

Mr. VORUZ, Grand Hôtel, Paris :

I have signed, without modification, the letter to Erlanger. It is on the way. ARMAN.

On his part, Mr. Erlanger wrote on the same day to Voruz, at Nantes : Here are the letters of engagement, the contract, and the copy. As you are living under the same roof with Captain Bullock, you will perhaps be good enough to have him sign the copy of the contract. I have written directly to Mr. Arman. Receive,

&c.

[267]

*On the next day, the 10th of June, Mr. Arman addressed to Mr. Voruz, sr., a letter to the following effect:

DEAR MR. VORUZ: I have to acknowledge receipt of your registered letter of the 9th, and of the draft of Bullock for 720,000 francs, which was inclosed. I hasten to discharge

you, as you desire, from the documents signed by you in the hands of Mr. Bullock for the first payment of the two ships of four hundred horse-power, which I am constructing for the account of the confederates simultaneously with those which you are having built by Messrs. Jollet & Babin and Dubigeon.

I pray you to arrange in such manner as to obtain from Mr. Bullock the promise to re-imburse us finally on account of the discounts of guarantee we are paying to Mr. Erlanger. Receive, &c.

On the other hand, Messrs. Jollet & Babin and Dubigeon, charged with the construction, in their yards at Nantes, of two of the four ships, as above stated in the letter addressed on the 1st of June by Mr. Arman to the minister of marine, wrote on the 10th of the same month to Mr. Voruz:

*

DEAR MR. VORUZ: After having noted the financial conditions which have been addressed to you by the house of Erlanger, as well as the letters which have passeä [268] between you and Messrs. Slidell and Bullock, we recall to you our verbal agreements, for the purpose of fixing precisely our respective positions in this affair. Other persons, with full knowledge of the real destination of these constructions and of the naval armaments, were to take a notable part in the benefits to be derived from the operation, and were to support proportionally the discount of guarantee stipulated in favor of Mr. Erlanger. It is to arrive at an understanding upon this last head that Mr. Henri Arnous Rivière, a merchant at Nantes, wrote on the 8th of June to Mr. Voruz, sr.:

The financial complication arisen in the affair of which the contract was signed on the 15th of April last, between Arman, yourself, and Captain Bullock, is the motive of the proposition which I am about to submit to you.

Messrs. Mazetin & Co., of Havre, were charged with preparing the steam-engines for the four screw-steamers whose hulls were building in the yards of Bordeaux and Nantes. But were they ignorant of the actual destination of these war-ships when they wrote to Voruz, sr., on the 23d of June, 1863 ?

MONSIEUR: In signing some days since the Bullock agreement, &c., we omitted to correct an error in the dimensions of the engines, &c. We pray you to write us that the last measures, which are those in construction, are those agreed on between us.

[269] *All then was perfectly agreed upon between the different participants for the execution of the agreement completed on the 15th of April, 1863, between Arman, the French builder, and Captain Bullock. This agreement had been expressly ratified by Slidell, the diplomatic agent of the Confederate States, according to his letter addressed to Mr. Arman on the 6th of June, 1863. The ministerial authorization required by French law for the construction and armament of ships of war has been accorded; the administration having doubtless been deceived by the pretended destination that a foreign shipper had in view for these ships of war, in the China seas and the Pacific, and by the eventual condition of a sale to the governments of China and Japan. But their real destination for the service of the belligerent States of the South is perfectly known to all the parties interested.

The construction of the vessels, their engines, and armaments is in full activity. The payments, guaranteed to the constructors by a powerful banking-house, are partially effected.

A second operation was to take place. On the 14th of July, 1863, Voruz, sr., writing from Paris to his son Anthony, announces to him that Captain Bullock and Mr. Arman set out the evening before for Bordeaux, together with Erlanger, the banker, and that there was question

of an agreement for some iron-clads. At the same time he told him [270] that an arrangement had been completed with a *Mr. Blakeley, an English iron-founder, for furnishing 48 cannon with 200 balls each.

The agreement, said he, is made in such a manner as to insure to us the exclusive furnishing of all which can be executed in France.

On the 15th of July, the same Voruz, recalling to the attention of the minister of marine the fact that by his letter of the 6th of June he had been good enough to authorize the preparation, in his works at Nantes, of the cannons necessary for the armament of four ships, of which two are being constructed at Bordeaux in the yards of Mr. Arman and two in the yards at Nantes, demands of the minister permission to visit the government establishment at Rueil, to see the improvements made in utensils, &c. This permission was given on the 9th of August.

A new agreement was signed in duplicate at Bordeaux, the 16th of July, 1863:

It has been agreed between Mr. Arman, ship-builder at Bordeaux, deputy of the Corps Législatif, No. 6 quai de la Monnaie, and Mr. James Dunwoody Bullock, acting under orders and for the account of principals whose duly-executed power of attorney he has produced, electing domicile with M. M. Émile Erlanger, 21 rue de la Chausée d'Antin, Paris, as follows:

ART. 1. Mr. Arman engages with Mr. Bullock, who accepts the terms, to con[271] struct for his account, in his yards at Bordeaux, two screw-steamships of wood and iron, of 300 horse-power, with two screws, with two iron-clad turrets, in conformity with the plan accepted by Mr. Bullock.

ART. 3. The cannons, arms, projectiles, powder, combustibles, and finally the salaries. and provisions of the sailors, shall be at the sole charge of Mr. Bullock.

ART. 5. The ships are to be provided with an engine of 300 horse-power, at 200 kilograms the horse, constructed by Mr. Mazeline, of Havre.

ART. 6. The two ships shall be admitted and ready to make their trial trips in ten months.

ART. 9. The price of each of these ships is fixed at the sum of 2,000,000 francs, which shall be paid at Paris, one-fifth down.

ART. 11. Mr. Bullock has designated the house of E. Erlanger & Co. as the one charged with effecting the payments at Paris and with accepting the financial conditions of the present agreement.

The 17th of July, Mr. Voruz, sr., writes:

I have received to-day a letter from Arnous, at Bordeaux, who says that Arman has just signed the agreement for two iron-clad gun-boats of three hundred horse-power for 2,000,000 francs each.

Finally, on the 12th of August, Mr. Bullock, remaining charged by Article 3 of the agreement of July 18th, above named, with pro[272] viding cannons, arms, projec* tiles, &c., for the two iron-clad gunboats, addressed to Mr. Voruz the following letter:

LIVERPOOL, August 12, 1863.

I have received, Mr. Voruz, your letter of the 4th instant, with statements of the price of the 30-pound cannon and accessories. It is impossible for me to say whether I shall give you a positive and direct order for such cannon before learning from Captain Blakeley how his own model of hooped cannon has been received.

I should be glad, however, to make an arrangement with you if we can agree upon the conditions. We will discuss all this when I go to Nantes. It is my intention to intrust my affairs to as few hands as possible, and I hope we shall agree in all essential points in such manner that our relations may proceed on a larger scale, even in case of peace. Our government will have need, doubtless, during a certain period, of sending to France for its vessels and engines, and, so far as I am personally concerned, I should be much pleased if our past relations should lead to orders still more considerable in the future.

Will you, if you please, inform me if the corvettes are progressing, and tell me when the second payments will be due ?

I shall write you a week before my arrival at Nantes.

[273]

BULLOCK.

*The terms of this letter apply evidently to the project of arming the two iron-clad gun-boats, the construction of which was the object of the agreement executed at Bordeaux the 16th of July, between Arman and Bullock. This latter, a captain in the service of the

Confederate States of the South, has acted by the order and for the account of his government. It is impossible not to understand that these two gun-boats, as well as the four ships, for which the agreement of the 15th of the preceding April had been concluded, are destined for the service of the Confederate States of the South in the war which they are carrying on with the Federal States of the North.

The material proof of these facts results too evidently from the agreements concluded between the different persons who have participated in their fulfillment, and from the correspondence exchanged between them for the regulation of their particular interests.

These facts are of the gravest importance. Expressly forbidden to all Frenchmen by the imperial declaration of the 10th of June, 1861, they constitute flagrant violations of the principles of the law of nations and of the duties imposed upon the subjects of every neutral power; duties, the loyal observance of which is the foremost guarantee of the respect due to the liberty of neutral states and to the dignity of their flags. These are acts of manifest hostility against one of the two belligerent parties in regard to whom the French government has resolved to maintain a strict neutrality.

[274] *It is necessary to avoid (says Vattel, lib. III, chap. 7) confounding what is allowed to a nation free from all engagements from what it may do if it expects to be. treated as perfectly neutral in a war. So long as a neutral people desires securely to enjoy that position, they should show, in all things, an exact impartiality toward those who carry on war. For, if this people favors one to the prejudice of the other, it cannot complain when the latter treats it as an adherent and ally of its enemy. Its neutrality would be a fraudulent neutrality, of which no one wishes to be the dupe.

This impartiality (adds Vattel) which a neutral people ought to observe, comprises two things: the refusal to protect or voluntarily to furnish either troops, arms, munitions, or anything of direct service in war.

These are acts of hostility which, forbidden by the law of nations, are characterized as crimes and misdemeanors by the French laws, which decree their repression under penalties. Article 84 of the penal code is conceived in the following terms:

Whoever, by hostile acts not approved by the government, shall have exposed the state to a declaration of war, shall be punished with banishment, and, if war is the result, with deportation.

[275]

This provision of the law is, in the opinion of the *undersigned, evidently applicable to the authors and accomplices of the facts recapitulated in the foregoing.

Whatever may be the motives and whatever the character of the struggle so deplorably carried on in the heart of the American Union, whether it be considered as a civil war or as an insurrection of a part of the American nation against the established Government, whether one regards the separation which is seeking to effect itself by force of arms as a division of the nation into two distinct bodies-into two different peoples-war between these two parts, Vattel continues, falls in all respects within the pale of a public war between two different nations. « The nations which do not wish to be forced to take part in this war should keep themselves within the strict limits of the neutrality which they proclaim. In the midst of the internal dissension of the American nation, in the peaceful state existing between France and the Government of the United States, in the relations of amity and commerce which unite the two countries, there is no hostile act that can provoke more irritation and awaken against France juster grievances than giving protection and furnishing naval armaments by the French to the enemy of the Government of Washington, by means of treaties with the confederates and of naval constructions and the fabrication of weap