\cc i^j a: ' Cornell University LiDrary JX 238.A567 Draft statemerit proposed ^^^ ^ w Preside^nt White Library CORNELL University. THE DIFFERENCES NOW EXISTING BETWEEN THE GOVERNMENTS OF GREAT BRITAIN and the TMTED STATES ARISING OUT OF THE LATE WAE B 1^5-3^7 STATEMENT OF FACTS. During the American Civil War, differences arose between the Governments of Great Britain and the United States, with reference to the conduct pursued by the former in the maintenance of her neutrality, and to the claims of American citizens for compensa- tion from England for the depredations of Confederate cruisers upon American commerce. It was in con- templation recently to settle these claims by reference to an International Commission in the usual way, with power of submitting disputed points of right to the decision of a friendly Government as arbitrator. The treaty by which this was to have been effected, known as the Clarendon-Johnson Treaty, with the negotiations which immediately preceded it, [A] con- tains the last word hitherto uttered on the English side of the controversy; and the solution there proposed was accepted as satisfactory by the British Government and by the American Executive. The treaty was not ratified, however, by the Senate of the United States. The speech made by Mr. Sumner, the Chairman of the Committee of that body for Foreign Affairs, in recommending the Senate not to ratify it, is also appended [F] ; and an extract from President Grant's message, which must be considered as the last formal utterance on the American side, of the question [See Papers, 8.] The reason assigned for refusing to accept the treaty, by which the so-called ' Alaba,ma Claims ' were to have been submitted to arbitration, is that the policy of Great Britain throughout the war constituted an offence against International Law or Comity, exceeding and underlying the specific inju- ries to individuals which alone were contemplated A by the treaty. This grievance is stated to consist ill the issue of the British Proclamation of Neutra- lity, with its immediate and remote consequences ; in the manner in which that Proclamation was acted upon by the British Government, and in the re- sults of such action upon the circumstances of the war. There exists, therefore, a preliminary question between the two countries, as to the policy adopted, and the line of conduct pursued, by England as a neutral power ; and this policy is embodied in the Proclamation of Neutrality, which must be read together with the various instructions issued for the guidance of governors of British Colonies and others in dealing with ships of the belligerents, copies of and extracts from which are subjoined, marked 1, 2, 3, 4, and 5. For the manner in which this policy was carried out, and for its practical I'esults, we must refer to history. A Statement of Facts from authentic sources is therefore appended, containing (1) Facts and dates regarding the commencement of the War ; ( 2 ) Facts and dates regarding the issue of the Proclamation of Neutrality ; ( 3 ) Facts regard- ing the first Confederate cruisers, and their recep- tion by neutrals; (4) Facts concerning the trade in arms and munitions of war carried on with the belligerents, the establishment of the Confederate agency in England, and the blockade runners ; and hereto is appended the Correspondence with reference to this Confederate agency, and the intercepted letters, upon which a demand was based for interference with its operations, marked D. Lastly, there is a state- ment of facts connected with the origin and equipment of the Alabama and her consorts, and their subse- quent history, to which is appended, for the special case of the Alabama, the entire correspondence up to the time of her sailing, with full copies of the evidence, the evidence afterwards obtained of her equipment and proceedings, and the statement by the British Government of what was done in conse- quence of the various requisitions of the American representative throughout the war [B, C pp. 1-33, E and 7]. Sect. 1. — Dates of material events in the commence- ment of the War. On the 20th December, 1860, the State Convention of South Carolina adopted an ordinance ' to dissolve the union between that State and the other States united with her under the Constitution of the United States of America,' and published a Declaration of Independence. During the succeeding month the States of Mississippi, Alabama, Florida, Georgia, and Louisiana followed her example; as did Texas, in February; on April 17th the great State of Virginia, and before May 20th, Arkansas, Tennessee, and North Carolina. On the 4th of February the representatives of six seceding States met at Montgomery, and . on the 18th, Mr. Jefferson Davis was inaugurated as Pre- sident of a new Union, denominated the Confederate States of America. The first Act of the State authorities in the several seceding States was to possess themselves, where it was practicable so to do, of the United States arsenals and forts within their territories. Thus Georgia took possession of Fort Pulaski, and of the arsenal at Augusta. In Florida, the navy -yard at Pensacola was seized. On the 9th January the first shot was fired in anger, a battery newly erected at the entrance to Charleston harbour firing at a United States troop-ship, which had been sent thither to reinforce Fort Sumter. On the 11th of April the South Carolinian forces attacked and bombarded Fort Sumter, which capitulated on the 13th. On the 15th of April the President of the United States issued a proclamation calling out 75,000 men of the militia of the several States to suppress illegal combinations in the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas. On the 17th, President Davis issued a proclamation in reply, which provided, amongst other things, for the issue of letters of marque and reprisal. On the 19th a second proclamation was issued by the Presi- dent of the United States, in which Southern priva- teers were threatened with the penalties of piracy, and a blockade was announced of all the ports of South Carolina, Georgia, Florida, Alabama, Louisiana, Mississippi, and Texas ; ' in pursuance of the laws of the United States, and of the law of nations, in such case provided,' It was arranged that the blockade should commence at each port fi'om the date of the announcement, by the naval officers despatched for the purpose, that they had de facto closed the port in question. On the 27th of the same month another proclamation extended the blockade to the ports of A'irginia and North Carolina. On the 29th of April Mr. Davis's message to the Con- federate Congi'ess was delivered, announcing the most determined resistance to the threatened invasion. On the 3rd of May, President Lincoln called out forty thousand volunteers, and directed an increase of the regular army by 20,000, and of the navy by 18,000 men. The Confederate Congress thereupon passed an Act ' recognising the existence of war between the United States and the Confederate States,' and authorising the President to employ the whole land and naval force of the Confederacy, and to issue letters of marque. It was not till after several combats and one ffene- ral engagement had been fought, that, on the 16th August, the President of the United States issued a proclamation declaring the inhabitants of the above- mentioned eleven States to be (with the exception of loyal individuals, and of Western Virginia) in a state of insurrection against the United States; forbiddino- all communication of a commercial nature with them, and threatening confiscation of all ships and vessels belonging to a citizen of the said States found at sea or in any part of the territories of the United States. Skct. 2.— The English Proclamation of Neutrality and Concession of Belligere^it Rights. At this time the news of events in America reached England in from thirteen to fifteen days. Thus the attack on and capitulation of Fort Sumter was known in England on the 26th April ; President Lincoln's I'roclamation of the 15th, which was generally re- garded in Europe as a recognition o£ existing hostilities, on the 29th; and the secession of Virginia about the same time. On the 9th of May, the news of the first blockade proclamation having arrived, and produced a great sensation in England, a Parlia- mentary announcement was made of the intended issue of a proclamation of neutrality, which was hailed by the friends of the Northern cause as ensuring that the blockade would be respected by England, and by those of the Confederates, as securing them in the enjoyment of all belligerent rights and privi- leges. The proclamation was issued on the 13th. [See Papers, No. 1.] Besides the substance and consequences of this act, the time of it has been a subject of complaint. It is especially urged that Mr. Adams, the new American Minister to the Court of London, was expected and arrived in England on the same day ; and that proper regard for international comity would have dictated a waiting for and previous communication with him. Among the facts relied on to prove that the pro- clamation was not premature are, in addition to the dates given above,' the following : — The blockade of the ports first closed actually commenced the very day after the date of the pro- clamation ; an English vessel was warned off the j)ort of Charleston on the day previous to it (the 12th of May) ; another was stopped off Pensacola on the very day, and numerous others in the following week. Before the end of the month all the ports of the Confederacy, except Galveston, had been declared under blockade ; and a trade of immense magnitude, and of vital importance to a large section of the population in the north of England was thus placed under the ban of war. On or about the 19th of August an Act passed the two Houses of Congress, and received the sanction of the President, to close the Southern ports by internal law, and to collect on shipboard the duties payable by vessels seeking to enter them. The foreign repre- sentatives at Washington protested against this Act, and it was not enforced. In October 1861 there were already 17 causes B pending in the Prize Courts of the Southern District of New York, in consequence of captures made in enfoi'cing the blockade, to which British owners or merchants were parties. A judgment delivered by Mr. Justice Grier in the Supreme Court of the United States, and concurred in by the Court by a majority of one voice, laid down that Civil War had broken out in the Union at the end of April; and treated the President's Proclama- tion of Blockade as in itself official and conclusive evidence of the fact. Simultaneously with the appearance of the procla- mation, a similar announcement was made by the French Government in the official Moniteur. In the various steps taken at this time by the English Government, they endeavoured to act, and substan- tially acted, pari passu with that of France : as, for instance, in establishing the rule which forbade prizes of either belligerent being received or sold in neutral ports. [See Papers, No. 2. J Sect. 3. — The first Confederate Ships of War and their reception in Neutral Ports. So far back as April 1861, the Sumter, a packet steamer of no great size or capability for warlike purposes, was commissioned at New Orleans by Captain Semmes, as a Confederate ship of war ; and she was still in process of equipment when that port was closed (May 30th) by the arrival of the United States blockading squadron. On the 30th June, however, she escaped to sea ; on the 3rd July she took her first prize ; and in the course of the en- suing' month she visited in rapid succession ports of Spanish, Venezuelan, Dutch, and English nationality. Everywhere, except in Venezuela, she was received in the character of a regularly commissioned belli- gerent ; and as such, allowed to purchase in the open market provisions, coals, and supplies, but not arms or munitions of war. In September she experienced a similar reception from Brazil, at Maranham, and in November from France, in the port of Martinique, where she was for some time watched by the U.S. steamer Iroquois., from which a request was made to be allowed to destroy her as ' a pirate,' but refused. In January 1862 she terminated ber career as a cruiser, at Gibraltar, where her boilers finally gave way. She had in the mean time destroyed or cap- tured 18 American merchant vessels. Six of these were left at Cuba in charge of a prize agent, appa- rently with the connivance of the authorities; but afterwards delivered up to the U.S. Consul, on repre- sentations being made by him that the sale or deten- tion of them as prizes constituted a breach of neu- trality. On the 26th October 1861, the Nashville, Con- federate States cruiser, sailed from Charleston, run- ning through the blockading squadron, and arrived at Nassau in the Bermudas. She was here refused leave to purchase coal from a Government dep6t, but allowed to do so from private sources ; and thus replenished, she reached Southampton on the 21st November, having burnt an American packet-ship from Havre in the Channel. The news of her arrival at Nassau, and the British Governor's request for instructions, produced a despatch from the British Colonial Minister, extracts from which are subjoined, laying down the rule followed by the British Govern- ment with respect to affording or refusing supplies to belligerents. [See papers and documents, Nos. 4, 5.] The watching of the Nashville by the United States cruiser Tuscarora, as she lay at Southampton, gave occasion to the declaration of the British Government that they would in all cases enforce the rule of ' 24 hours start ' between two belligerents lying in British waters. The Nashville succeeded in returning to America, and was soon afterwards destroyed, to pre- vent her falling into the hands of the Federal forces, ■ at the capture of Newbern. With the exception of the Tallahassee, a blockade runner converted into a cruiser, which made one short but destructive cruise, no other Confederate ship of war escaped to sea from a Confederate port, up to the conclusion of the war. On the night of the 28th of June, 1861, the privateer Jeff Davies made her escape from Charles- ton, and between that date and the 17th August, when she was wrecked on the coast of Florida, cap- tured eight coasting vessels. Very few privateers appeared at sea during the war, and none of these ■were fitted out at neutral ports. Sect. 4. — The trade with the Belligerents and the Confederate agency in England. It has been alleged that, prior to the arrival of the English Proclamation in America, it was in contem- plation by the United States Ministry of War to build in England by contract one or more ironclads for the purposes of the war : and indirect overtures to this eflFect were made to an English shipbuilder, the same who afterwards constructed the Alabama. This intention, if it existed, was abandoned upon the issue of that proclamation; but about the same time Mr. Seward announced to Lord Lyons that agents had been despatched to purchase arms &c. in England, on account of the Federal Government. At a later period these purchases were discontinued in England; but they still continued to be made in Austria, and immense shipments on private account were made from England to the Northern States through- out the war. There can be little doubt that the gross amount of warlike supplies so furnished to the North far exceeded that which could be conveyed through the blockade for the use of the Southern Government; and it was also beyond question that great numbers of individuals of British nationality were induced to take service in the Northern armies. But the nature of the circumstances was so pecu- har, that it may be said the smaller supply was far more valuable to its recipients than the larger ever could have been. The absence of manufactures, the scanty industrial resources, and deficiency of mineral products in the Southern territories, rendered them, after the first outbreak, to a very great degree de- pendent for the means of resistance upon supplies obtained in foreign markets. The sympathy felt for their cause in England (although not confined to England), the convenience of payment in cotton, of which there was as great a need in Lancashire as of arms and other manufactured articles in Richmond, and the convenient position of the English port of 9 Nassau for blockade-running, combined to call into existence between England and the blockaded ports a trade in articles of all kinds, but especially of con- traband of war, of great magnitude, and, thanks to the facilities afforded by steam, and the laxity with which the blockade was conducted, which, during the first year at least, was considerable, of un- precedented success in the annals of blockade-running. No doubt the aid and comfort so received by the South contributed materially to prolong the war. However, very large captures of neutral property Avere made by the blockading squadron, amounting by the close of 1862 to an estimate of £8,000,000. In the course of the summer of 1861 it became known by report that a Confederate Agency was established in Liverpool, and that its first work had been to despatch the steamer Bermuda from Hartle- pool, with a cargo of arms &c. directly for the use of the Southern Government. The Bermuda ran the blockade into Savannah successfully. On August 15, a remonstrance relative to this operation was ad- dressed by Mr. Adams to the British Government, but with neither this nor any other instance of blockade-running in merchant vessels was it deemed possible to interfere, though officers in the British service were strictly prohibited from taking part in such enterprises. In March 1862 the remon- strance was repeated ; and in December 1862 the traffic had reached such a pitch of development, that its systematic prosecution was noticed by Mr. Adams as elevating the aid so given to the South out of comparison with that obtained by the North ' in open market,' and as negativing the conclusion of Lord Russell, that in this and other respects, the English Government were intent upon preserving the strictest neutrality. Besides stimulating and directino; the blockade runners, the Confederate Agency had it in charge to superintend the building and despatch of cruisers, intended to molest and destroy the commerce of the United States. It was the various vessels so con- structed and equipped which gave rise to the claims that form the kernel of the question now at issue ; but before proceeding to the separate cases of the c 10 Confederate cruisers, it is necessary to point out that the continued existence of the Confederate Agency upon British soil throughout the war is beli(;ved in America to constitute a material item in the case as affecting the liability of England. In this connection it becomes important to notice the evidence from time to time communicated to the British Government of its existence and operations. Sect. 5. — The ^Alabama' and her Consorts. Ok February 18, 1862, Mr. Adams called attention to the fitting up of a gunboat or vessel adapted for warlike purposes at Liverpool, which current report destined for the Confederate service. The names of the persons stated to be concerned in her equipment were those of the same parties who had previously despatched the Bermuda, and who were suspected of being agents of the Confederate authorities. A survey was ordered by the Government, and it was reported that although pierced for guns (a circumstance noto- riously not confined to vessels used for warlike pur- poses), the vessel was not Jitled for their reception ; and that no arms or warlike munitions were on board. This report was deemed sufficient to negative any suspicion attaching to her voyage, and on March 22 the Oreto sailed ' for Palermo and Jamaica.' A second remonstrance was made by Mr. Adams, dated March 25, enclosing further information connecting her with the supposed Confederate agents, and with certain others, believed to be Confederate naval officers, recently arrived in Liverpool. In his letter of 18th Feb. Mr. Adams offered to supply more formal evi- dence, if needed; but it does not appear that such was at this time procurable. A full report was trans- mitted in reply, showing that the cargo of the vessel was entirely of a peaceful nature, that she was not fitted or equipped for war, and that no arms or munitions of war were on board.* * A misunderstanding appears to have arisen in this case from the report of cargo &c. being thus headed : — 'Men, 62 ; Fa.iseiujcrs or Troops, — ; G^ms, — ; 178 ions.' which signified that no passengers or troops, and no guns, were on board ; the words ' 1 78 tons,' referring to the cargo of pro- visions, of which particulars followed. But it was not unreason- ably supposed to amount to an admission that ' troops ' and 'guns,' the latter to the amount of 178 tons, were on board. 11 In June 1862 the Oreto turned up at Nassau, and was seized on suspicion by the British authorities, and tried in the Court of Vice-Admiralty. It was found that she had there shipped shells and ammu- nition, but no evidence was forthcoming that these were intended for immediate belligerent use, or her- self for a ship of war. She was supposed by the Judge to be intended for a blockade-runner, and accoi'dingly released. Immediately upon her release, she was secretly taken possession of by the Confede- rate officer previously appointed to command her, Captain Maffit, who had in the meantime arrived from Liverpool. He sailed in her from Nassau, and com- missioned her at sea ; she received her guns and armament at a place called Green Key, beyond British jurisdiction, out of a schooner despatched to meet her from the same port of Nassau ; and thereupon hoisted the Confederate ensign. The whole crew was imme- diately after struck down by yellow fever ; and the Oreto^ now the Florida, sought refuge in Cuba, from whence, having secretly enlisted fresh men, she ran the gauntlet of the blockading squadron into Mobile. After a refit, she started on a second cruise ; this time, therefore, from a Confederate port. No prizes were taken by her on her first cruise. Earl Russell appears to have been in error in stating that she was armed first in Mobile. These facts were subsequently disclosed in the narrative of her commander. On the 28th June 1862, Mr. Adams called atten- tion to a second and more powerful cruiser (the destination of the Oreto being by this time known), which was nearly ready to be despatched from Liver- pool on the same errand. He transmitted information obtained by the American Consul at Liverpool, to the effect that the ship was adapted for war, and that the same persons were apparently interested in herwho had despatched the Bermuda and Oreto. On the 4th July a report from the Customs Ofiice was sent in answer, [C p. 10] by which it appeared that the vessel in question was, without doubt, a ship of Avar ; but it was suggested that evidence should be procured by the American authorities of her pretended destina- tion, without which the Commissioners of Customs would not be justified by the English law in seizing 12 her. A fuller statement by the American Consul was accordingly sent in on the 10th July ; but it was replied that the information therein contained was insufficient, not being in legal form, i.e. upon oath. ()n the 21st July six sworn depositions were fur- nished to the Board of Customs [B. p. 6], and copies of these were transmitted to the Foreign Minister, the American representative apparently mistrusting the judgment of the Board of Customs, This mis- trust was justified by the event. On the 22nd the Board replied that the evidence was still insufficient to put them in motion. In the meantime the case had been submitted by Lord Russell to the Queen's Advocate, the proper legal adviser of the CroAvn in such cases, in whose custody the papers appear to have been left from Tuesday the 22nd July, till Saturday the 26th. During this period verbal representations were more than once made to the authorities, both in Liverpool and in London, that the vessel was e^ddently preparing to sail imme- diately. Upon Wednesday the 23rd two more depo- sitions were sent to the Board of Customs [C. p. 13], and on Thursday the 24th copies of them were furnished to Lord Russell : by some unexplained accident these copies were only received at the Foreign Office on Saturday the 26th. It was now discovered also that the Queen's Advocate was unable, from serious ill-health, to perform his func- tions; and on Monday the 28th, another legal official was consulted, who reported, on the 29th, that the vessel ought to be detained. But on that very morning she had clandestinely left Liverpool, without papers, ostensibly on a trial trip; no special precau- tions having been taken to prevent her departure. Strenuous efforts were now made to find and stop her, but in vain. It may be doubted whether the two later deposi- tions really add anything to the strength of the case made out by the six previously delivered, which were in the possession of the Government a whole week previous to the escape of the vessel. At all events, it has been' subsequently allowed on the part of the British Government that the law would have justified her detention upon the whole case as submitted [by 13 Lord Stanley, on tlie SOtli November 1866. See also C.p. 17, for the opinion of Collier, Q.C., since Attorney-General]. Her captain, in his narrative, confirms the suspicion that by some treachery infor- mation of the intended or probable detention of the vessel was conveyed to the Confederate agents at Liverpool, and hastened her departure. Some want of energy or sagacity appears from Mr. Adams's letters to have been exhibited by the captain of a United States' frigate in his attempts to arrest her on leaving port; and in general, it must be here noticed, it is considered in England that the pursuit of the Federal cruisers after the Alabama and her consorts was lax and inefficient. Some inquiries were set on foot at Liverpool, which resulted in showing that the '290' left port without any guns, arms, or munitions of war on board, and that none of her seamen had been enlisted for the Confederate service within British jurisdiction. [B. p. 9.] She proceeded to Terceira, in the Azores, where she was met in Portuguese waters by two English merchant vessels, the Bahama^ of Liverpool, and the Agrippina, of Bristol, from which she re- ceived her armament. Captain Semmes, late of the Sumter, arrived on board the Bahama, and took the command, hoisting his flag in her as captain of the Confederate States' ship of war Alabama. Her crew was made up by the English sailors on board, most of whom were induced by Captain Semmes to enlist, and some also from the Bahama. An account of these transactions was obtained from two of the men who refused to join her, upon their return to Liverpool in the Bahama. [C. p. 25, and papers No. 7. J Their evidence further shows that Captain Bullock, by this time pretty ^vell known to be the Confederate States' naval agent in Liverpool, went out in the '290' from, that port, but returned with the pilot, and again took passage in the Bahama ; i^eturning once n:iore to Liverpool, after he had consigned the cargo of the Bahama to the new cruiser. The English .Captain, Butcher, under whom the ' 290 ' sailed, also came back in the Bahama. The English Government declined to prosecute any one for his share in these proc(;edings. The Agrippina escaped discovery O 14 at the time, and continued to act as tender to the Alabama^ making one voyage from Cardiff to the West Indies with coal for her consumption. Further information as to the Alabama was subsequently ob- tained from an individual who had acted as her pay- master, and his deposition was submitted to Lord Russell on 4th April 1863. [E. ] Meantime, on the 9th October 1862, an intercepted letter from Mr. Mallory, the Confederate States' Secretary of the Navy, was communicated to the British Government, by which all doubt as to the position of Captain Bullock and the nature of his operations was cleared up. [C. p. 32.] It became evident that a systematic attempt to create a navy was being carried on within British jurisdiction by Confederate States' naval officers. Tliese facts were further established and elucidated by the copies of a large number of intercepted despatches from members of President Davis's Government to Mr. Mason and others, which were furnished to Lord Russell on 9th February 1863, and which, with the correspondence that ensued, are hereto subjoined. [D.] This evi- dence was not thought sufficient to establish that any offence had been committed against English law. The next case was that of the Japan^ or Virginia^ which left Greenock April 2, 1863. On this occasion the first complaint was made by Mr. Adams on April 8. She received her armament from a small English steamer on the coast of France. The Government declined to prosecute her tender, but a prosecution was instituted against some Englishmen at Liverpool who had been concerned in enlisting men to serve on board, and they were convicted and fined. Moreover, the Alexandra^ a vessel which was ready at the same time to proceed from Liverpool, was detained, and her builders prosecuted for a breach of the Foreign Enlistment Act. They were acquitted after a long and now celebrated trial, in which the ruling of the Judge as to the construction to be put upon the Act in question has given rise to much discussion. [See papers, 6, note.] It is generally admitted in Eng- land, that the Act, if taken as interpreted by this judgment, and as executed in England, where the interrogation of accused persons is not permitted by law, is inefficient to prevent or punish such cases as 15 tkose of which the facts have been related. On one occasion Lord Russell himself went so far as to say that the cases of the Oreto and Alabama were a scan- dal and in some degree a reproach to the laws of England. [Conversation with Mr. Adams, March 26, .1863.] In the similar case of the Canton, a vessel fitted in Scotland for the Confederate agents, the dif- ferent procedure of the Scottish law, which permits the interrogation of accused parties, enabled the Go- vernment to prevent her departure. The Alexandra after her release proceeded to Nassau ; but she was there again seized, and remained in custody till the conclusion of the war, her owners not thinking it worth while to meet the expense of further proceedings. In like manner the iron-clad steam rams which soon -after attracted public atten- tion, and caused the most grave remonstrances to be made by the American Government, were detained by the British authorities. In consequence of the difficulties raised by the Alexandra case in putting the Foreign Enlistment Act into execution, the builders of the rams were not further proceeded against, the Government choosing rather to purchase the ships from them at their own price, than to run the risk of a forensic defeat. This course received the approval of the English Parliament. After the destruction of the Alabama, Mr. Adams warned the Government that it was understood the surviving crew were to be utilized in a similar expe- dition. Notwithstanding this, the Sea King, an East Indian trader, sailed from London for Bombay on the 8th October, 1864, without any suspicion having attached to her, and was sold at Terceira, in the Azores, to a Confederate officer, and by him converted, after the usual fashion, into the Confederate cruiser Shenandoah. The English captain who took her to the Azores returned in the ship which supplied her armament, and was prosecuted for inducing his men to join her under the Confederate flag, but acquitted on a conflict of evidence. A further question of international law arises out of the subsequent reception of these vessels into British ports, and notably of the Alabama, at Port Koyal, on January 21, 1863. ' Prior to this she had been received as a Confederate ship of war in the 16 French port of Martinique, and had destroyed the United States sloop of war Hatteras in a naval engage- raent. Afterwards she was similarly received at the Cape of Good Hope and at Singapore, and by other nations, notably by the French at Cherbourg. The Virginia appeared in the port of Liverpool in May 1864 as the Confederate cruiser Georgia; she also was received as a ship of wat, but was afterwards dismantled and sold. In like manner the Shenandoah put into Melbourne in January 1865, and there obtained supplies which enabled her to continue hostilities even after the termination of the war. None of these vessels ever entered, or attempted to enter, a Confederate port. On the other hand the British Government, in the case of the Tusca- loosa^ a prize of the Alabama^ converted into a tender, and allowed by the Colonial authorities to enter the port at the Cape, forbade her being received in that character, as not having been re- gularly set out for a vessel of war, or formally con- demned in a Confederate prize court; and after the case of the Georgia at Liverpool, it was further for- bidden that any ships of war of the belligerents should be dismantled or sold in British ports. It is said that the ships so fitted out from neutral ports together took 173 vessels, and destroyed property to an amount exceeding two millions sterling. The damage indirectly inflicted upon American commerce was, of course, even greater, and can hardly be calcu- lated. On the other hand, the Sumter. Nashville^ and Talahassee must be credited with a share of the des- tructive work. The French and Danish Governments, on their part, could not prevent the escape of the Stonewall* And many prosecutions and other mea- * The Sphinx, an iron-clad steam ram of great capabilities, was being built at Bordeaux for the Danish Government. The Confede- rate agents prevailed upon the builder to violate the specifications ol the contract in constructing her; accordingly upon her completion the Danish Government refused to have her. She was sent, how- evur, to Copenhagen, as though upon the chance of finding a market therf! ; and upon the final refusal of the Danish Government, was siild to the Confederate agent who was in readiness. She then pro- ceeded to sea, under the name of the Olinde ; and was armed at sea from a British ship sent to meet her. She then hoisted the Confe-. derate flag as the Stonewall. She did not reach the scene of war in time to give any assistance to the Confederate cause. This case is a good example of the difUcultiea with which neutral States have to contend, 17 sures were actually undertaken by the British Govern- ment in fulfilment of the duties of neutrality, as to which see the memorandum submitted by Earl Russell to Mr. Adams [C, p. 182-200]. A long and interesting correspondence took place between Earl Russell and Mr. Adams, in which the question whether or not England was liable for the depredations of these vessels was argued at great length. It is not thought necessary to submit this as part of the case, because the position taken up by Lord Russell has since been abandoned by the British Government, in assenting to the principle of arbitra- tion. As stated by Lord Stanley, from the English point of view, ' the question at issue is really the culpability or non-culpability of Her Majesty's Government, in regard to the matter complained of.' [A. p. 10.] And again, in his despatch of 9 March, 1867; ' The real matter at issue between the two Governments is, whether, in the matters connected with the vessels out of whose depredations the claims of American citizens have arisen, the course pursued by the British Government, and by those who acted under its autho- rity, was such as would involve a moral responsibility on the part of the British Government, to make good, either in whole or in part, the losses of American citizens.' But this statement of the case has never beer, accepted in America as exhaustive or satisfactory. On the American side the arguments appear to range themselves in the following order : First comes the argument, that the proclamation of neutrality, or the manner of it, was unjustifiable; upon this is founded what may be called the general, or preli- minary case of grievance [see Mr. Sumner's speech, F, passiin]. By this Proclamation, the British Government acknowledged the belligerent rights of the Confederate power, whether by sea or land ; although at this time the Confederate flag had not ar)peared at sea ; and some circumstances, notably that 18 of the recognition of the Confederate flag at sea, and that of the trade in arms, ships and munitions of war thus legaUsed between English subjects and the Con- federate States, with the circumstance, that this trade Avas carried on in systematic violation of a blockade formally established, are alleged for consideration as consequences and aggravations of this offence. Next follows the special argument as to the Confederate cruisers built in England; it is maintained that it was a breach of neutral duty for them to have been, under the circumstances, permitted to come into ex- istence; for that whatever may have been the character of each step in their setting forth and equipment, taken separately, and whether the internal law was evaded or broken, or no, yet in the result they were in fact British ships, sent forth from British territory, with hostile intent, against a friendly power; they were built and launched under the protection of the English laws, they sailed from British ports, they received their armament and supplies from British sources, they were manned by British seamen, and carried on war from no other base than that originally afforded them by British territory. The liability of the British nation for the losses caused by their ravages is rested upon the recep- tion they met with on coming afterwards within British jurisdiction; and also upon the impunity accorded to the prime agents in contriving them, by which they were enabled to repeat their enter- prises again and again. And if no negligence were chargeable to the Government in using the powers conferred by the Foreign Enlistment Act, or other internal law, it is charged nevertheless upon the State; since no measures were taken to create by legislation new powers which might prove sufficient. In this connection the American Foreign Enlistment Act is appealed to by way of illustration, as being more effectual than the corresponding British statute, To the general complaint the defence on the English side, in substance, answers that the Proclamation of Neutrality, and the concessions of belligerent rights ■which it implied, were under the circumstances strictly in conformity with and prescribed by the recognised rules of neutral dut)', and in effect proved beneficial 19 rather than injurious to the United States. . The re- cognition of the Confederate flag at sea, the trade carried on by individuals with both belligerents, the supplies furnished to both of. articles contraband of war, and the blockade running, however systematic, are justified as the regular incidents of a state of neutrality, and as not inconsistent with a strictly neutral policy. Upon the special argument as to the cruisers, the answer is, that a nation cannot be made liable for the acts of individuals, whatever their conse- quences, unless (1) they amounted to a breach of recognised International Law, and (2) were of such a nature that they could have been prevented by the Neutral Government. Kow, as to the first condition, it must be universally recognised that in a free State the internal law is the only limit that can be set upon the actions of individuals. It follows that in fixing what are the recognised obligations of International Law, it is not possible to press them beyond the point up to which they have been recognised by the internal law, so long, at least, as the internal law contains a reasonable and bond fide attempt to enforce them. Now the British Foreign Enlistment Act is maintained to have been in this matter such a reasonable and bond fide enactment; therefore acts which did not violate it cannot be considered as breaches of recog- nised International Law.* With regard to the second condition, considering that the powers of a Government are of necessity for the most part confined within the limits of the internal law, it is maintained that as a fact all was done in these cases which could reasonably have been expected of the British Government. In short, the active duties of neutrals must be bounded by the limits of what is reasonably practicable. All Governments decline to recognise that as an International duty, in- volving them in grave responsibilities, which in the nature of things they cannot be certain that they will be able to fulfil. It is maintained, moreover, that no * Some European countries have special laws devotod to the pre- vention of their inhabitants from engaging in private war. The most important of sucli enactments are the 84th and SJth Articles of the Code Penal. Extracts from the British and American Eoreign Enlistment Acts are subjoined, marked G. 20 additional legislation which could reasonably have been required of a Neutral State by a belligerent, at the time and under the circumstances of an existing war, would have enabled a Government to defeat the subtle contrivances which were actually resorted to by persons interested in evading the laAv. It is denied that the particular provisions of the American Foreign Enlistment Act would have had that effect. In the subsequent reception of these vessels as bel- ligerent ships of wai', the British Government con- ceived its course to be absolutely prescribed by Inter- national Law; and disclaimed any jurisdiction to inquire into the circumstances under which they had obtained that character, when the fact that they had obtained it was established beyond question. It is rejoined for the United States, that the acts complained of, in substance, and setting aside techni- calities, amounted to gross breaches of neutrality. It is denied that all was done which could have been done by the British nation to prevent these acts; that is to say, first, that the Government exercised all the powers within its reach, with all due diligence, to prevent persons within its jurisdiction from com- mitting them ; or, if such were indeed the case, it is maintained that some additional legislation might reasonably have been adopted, after the first case of the kind, so as to render its efforts effectual for the future. Further, in estimating the liability for the injury inflicted, it is contended that the British nation must be considered as liable for all breaches of its professed neutrality of which the authors were, at the time, and remained unmolested, Avithin its jurisdiction. As between the two States, such acts are not merely to be regarded as the consequences of omissions to per- form the active duties of prevention incumbent on Xeutral Governments; they are breaches of those pas- sive duties of abstention, which constitute the funda- mental conditions of neutrality. Upon these facts and arguments the final questions are stated ; the whole being brought, as far as pos- sible, to simple and definite issues. Questions of internal law are carefully excluded from the enquiry. In the case of the Alabama, it is admitted that the English law would have justified certain preventive 21 measures against her sailing before investigation had been made, which, were not taken in time. It is un- certain whether a conviction could have been obtained of any person concerned in her equipment and setting forth. In the other cases it must be presumed that no offence had been committed, or that the evidence was insufficient to prove any, against English law. The Questions of Right arising out of the preceding facts appear to group themselves as follows : — I. — Was the English Proclamation of Neutrality in any respect a violation of International Law or usage? II. — Did the omission to restrain or interfere with the Confederate agents in England, and their coadjutors, upon the evidence sup- plied of their operations, taken collec- tively, or upon the evidence supplied of any particular act or operation, constitute a breach of neutrality on the part of the British Government? III.— a. Did the failure to prevent the departure of the vessels complained of constitute a breach of neutrality on the part of the British Government — 1, In the cases where no evidence was obtained previous to their departure upon which the Foreign Enlistment Act or other ordinary powers of the Govern- ment could have been set in motion ? 2. In the specific case of the Alabama'^ h. Did the subsequent reception and enter- tainment of such vessels, as entitled to belli o-erent rights under the Confederate flag, constitute under the circumstances a breach of neutrality — 1. In cases where it is considered that no breach of the internal law had been committed in their equipment? 2. In the case of the Alabama? 22 If any breach of international duty, on any of the preceding questions, must be held to attach to the British nation — IV. What sort of reparation, all the circumstances being considered, is due ? LIST OF PAPERS AND DOCUMENTS. A. Correspondence respecting the negotiations with the United States Government, presented to Parliament 1869. B. Return to an order of the House of Commons for Correspondence between the Custom House authorities relating to the Alabama, 1863. C. Official Correspondence relating to the Alabama. London : Longmans, 1867. Pp. 1—33, 182—200. D. CoiTCspondence with Mr. Adams respecting Confederate agents in England, presented to Parliament 1863. E. Deposition of Clarence Yonge, 2nd April 1863. Printed in the American and English State Papers. F. Speech of the Eight Hon. Charles Sumner, April 13th, 1869. London : Stevens Brothers, 1869. 1. The text of the Eoyal Proclamation of Neutrality, 13th May 1861. 2. The French Official Announcement in the Moniteur of 14th May 1861. 3. Extract from a despatch sent to Governors of British Colonies, 1st June 1861. 4. Extracts from a despatch sent to the Governor of Bermuda, 15th Nov. 1861. .5. Bules to be observed in British ports during the continuance of hostilities, 31st Jan. 1862, 6. Extracts from the Foreign Enlistment Acts of Great Britain and the United States, with a note on the Judge's ruling in Attorney- General v. Sillem (the case of the Alexandra). 7. Copy of deposition of George King, 30th Sept. 1862, from the English State Papers, 'Correspondence respecting the Alabama, No. 3.' 1863, p. 12. 8. Copy extract from President Grant's Message, Dec. 1869. I-OWDOK : PKINTKD BY SPOTTIS-WOODE AND CO., WEW-STBEET flOUAIlK ANn PARIJAMKNT STREET, -^■v* i." ^%' '^'0,: ^^"'1 r-r \ ) ^ k^^if^: m^ a 9^^ L