Admiralty as to the course to be pursued with reference to the insurgent cruisers in the war which, he thinks, may "have already begun." On the 2d of May' he asks the Law Officers of the Crown what course the Government shall pursue. On the 1st of June, however, he is in doubt on the subject, and he writes to the Lords Commissioners of the Admiralty, informing them of the rules to be observed by the British naval forces in the contest which appears to be imminent between the United States and the so-styled Confederate States of North America." It would seem, therefore, that on the 1st of June, 1861, Her Majesty's Government regarded only as "imminent" the hostilities which Her Majesty's Proclamation of the 13th of the previous May alleged [58] had "unhappily commenced between the United States of America and certain States styling themselves the Confederate States of America." In point of fact, Lord John Russell's dispatch of the 1st of June described with fidelity the condition of things so far as then known in London; for at that time the intelligence of the exhilarating effect of the Queen's Proclamation upon the insurgents, and its depressing effect upon the Government and loyal population of the United States, had not reacheЛl Europe. Effect of the Whatever Lord John Russell, and his colleagues in the Government, who decided to counsel Her Majesty to issue the Proclamation of May 13th, may have thought, the debates in Parlia- Queen's Proclama ment removed any excuse for ignorance as to the effect of that instrument. tion. As early as the 29th of April, in the House of Commons, an opposition member had said that "there could be no doubt that if the war should be continued in that country [the United States] there would be thousands of privateers hovering about those coasts;" to which the Chancellor of the Exchequer (Mr. Gladstone) immediately replied: "All that relates to the dangers which may arise between British merchant ships and American or other privateers * ** * I shall pretermit, not [59] because I presume to say or think that they are insignificant, but because I feel it my duty to address myself to those points which touch more directly and more practically [the Budget] the mat ter in hand.”4 In a debate in the House of Lords, on the 10th of May, Lord Hardwicke said that he "was anxious that the House should not enter too strong a protest against that which was a natural consequence of war, namely, that vessels should be fitted out by private individuals under letters of marque. That was, no doubt, privateering, but it did not by any means follow that privateering was piracy. He believed that if privateering-ships were put in the hands of proper officers, they were Eot engaged in piracy any more than men-of-war. He thought that a feeble State engaged in a war with a powerful one had a right to make use of its merchant-vessels for the purpose of carrying on the contest, and there was no violation of the law of nations in such a proceeding." In the more elaborate discussion which followed on the 16th of the same month in the House of Lords, the Lord Chancellor said: 66 If, after the publishing of the present proclamation, any English subject were to enter into the service of either of the belligerents on the other side of the Atlantic, there could be no doubt that the *person so acting would be liable to be punished for a violation of [60] 1 Vol. IV, page 482. 3 Hansard's Debates, 3d series, Vol. 2 Vol. I, page 335. CLXII, page 1276. CLXII, page 1277. Vol. IV, page 490. the laws of his own country, and would have no right to claim any interference on the part of his Government to shield him from any consequences which might arise. There could, however, at the same time, be no doubt that, although he would be guilty of a breach of the laws of his own country, he ought not to be regarded as a pirate for acting under a commission from a State admitted to be entitled to the exercise of belligerent rights, and carrying on what might be called a justum bellum. Anybody dealing with a man under those circumstances as a pirate, and putting him to death, would, he contended, be guilty of murder." * The distinguished jurist, who then sat upon the woolsack, described in that speech one legal effect of this hastily issued Proclamation with undoubted correctness. It relieved Englishmen or foreigners in England, and Englishmen on insurgent cruisers carrying on war against the United States, from the penalties of a high class of felonies. Lord Lyndhurst, one of the most eminent predecessors of Lord Campbell, in an opinion in the House of Lords in 1853, cited with respect by Sir George Cornwall Lewis, (himself one of Lord Palmerston's Cabinet,) said: "If a number of British subjects were to combine and conspire together to excite revolt among the inhabitants of a friendly [61] State,* and these persons, in pursuance of that conspiracy, were to issue manifestoes and proclamations for the purpose of carrying that object into effect; above all, if they were to subscribe money for the purpose of purchasing arms to give effect to that intended enterprise, I conceive, and I state with confidence, that such persons would be guilty of a misdemeanor, and liable to suffer punishment by the laws of this country, inasmuch as their conduct would tend to embroil the two countries together, to lead to remonstrances by the one with the other, and ultimately, it might be, to war. * Foreigners residing in this country, as long as they reside here under the protection of this country, are considered in the light of British subjects, or rather subjects of Her Majesty, and are punishable by the criminal law precisely in the same manner, to the same extent, and under the same conditions as natural-born subjects of Her Majesty. * * * The offense of endeavoring to excite revolt against a neighboring State is an offense against the law of nations. No writer on the law of nations states otherwise. But the law of nations, according to the decision of our greatest judges, is part of the law of England."i Mr. Bright's views. * * [62] *The United States will close this branch of the examination by citing the language of Mr. Bright in the House of Commons, on the 13th of March, 1865.2 "Going back nearly four years, we recollect what occurred when the news arrived of the first shot having been fired at Fort Sumter. That, I think, was about the 12th of April. Immediately after that time it was announced that a new minister was coming to this country. Mr. Dallas had intimated to the Government that, as he did not represent the new President, he would rather not undertake anything of importance; but that his successor was on his way, and would arrive on such a day. When a man leaves New York on a given day you can calculate to about twelve hours when he will be in London. Mr. Adams, I think, arrived in London about the 13th of May, and when he opened his newspaper next morning he found the Proclamation of Neutrality, acknowledging the belligerent rights of the South. I say that the proper course to 1 On Foreign Jurisdiction and the Extradition of Criminals; by the Right Hon. Sir George Cornwall Lewis, Bart., M. P., London, 1859, page 66. 2 Vol. V, pages 639, 640. 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.”3 Viewed in this light, the United States, with deep and unfeigned regret, have been forced to conclude, from all the circum- And suedith an stances, that Her Majesty's Government was actuated at untriedy 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 mynson the Queen's donner aux insurgés, ce que le monde entier a considéré tout au moins comme un appui moral; * 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."4 [65] procnation. 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 frittion, 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. Mr. Fish to Mr. Motley, September 25, 1869. Vol. VI, page 4. 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'apı s 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 instructiens to Lord Lyons. 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. 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. Tho instructions to have been regarded as a cause of war. It is not improbable that the Arbitrators may be of opinion that the use of the British Legation at Washington for such a purpose was an act which the United States would have been Lord Lyons might 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] negotia of the In the year 1854 the Government of the United States submitted to the principal maritime nations two propositions, soliciting Former 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 elliciency 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 124th Protocol, April 16, 1856, Congress of Paris. S. Ex. 31-3 |