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§ 445. The two maxims are not, however, inseparable. The two The primitive law, independently of international com- maxims, of pact, rests on the simple principle, that war gives a right free goods, to capture the goods of an enemy, but gives no right to ships enemy capture the goods of a friend. The right to capture an necessarily enemy's property has no limit but of the place where the connected.

and enemy

goods, not

fitted out, in whole or in part, for that purpose, in British ports, and had escaped or been allowed to depart therefrom before arrest.

Early in 1863, the Messrs. Laird at Liverpool were found to be building two ironclad steam rams, professedly for a French house. Mr. Adams addressed Earl Russell on the subject, with affidavits tending to prove that they were building for the rebel government, and under direction of its agents. At first, Earl Russell replied that the government were advised there was no cause for interference. In his letter of July 11, 1863, Mr. Adams says that the building and sending-out such vessels as rams instruments of war in themselves, though without guns, and destined of course for purely warlike objects—“will be regarded by the government and people of the United States as tantamount to a participation in the war by the people of Great Britain, to a degree which, if not seasonably prevented, cannot fail to endanger the peace and welfare of both countries." On the 14th August, 1863, he furnished more evidence, and said, "It is difficult for me to give your lordship an adequate idea of the uneasiness and anxiety created in the different ports of the United States by the thought that instruments of injury of so formidable a character continue to threaten their safety, as issuing from the ports of Great Britain." Earl Russell's reply, of Sept. 1, showed that the government was not disposed to make a seizure, on the evidence. Sept. 3, 1863, Mr. Adams writes again to Earl Russell his conviction that the rams are intended for the rebel service, and are nearly ready for sea. He adds, "I feel it my painful duty to make known to your lordship, that, in some respects, it [the previous letter] has fallen short in expressing the earnestness with which I have been, in the interval, directed to describe the grave nature of the situation in which both countries must be placed in the event of an act of aggression committed against the government and people of the United States by either of these formidable vessels." On the 4th September, Mr. Adams communicated more proofs of the destination of the rams, and their apparent immediate departure, and adds, “I beg your lordship's permission to record, in the name of my government, this last solemn protest against the commission of such an act of hostility against a friendly nation.” The same day, Earl Russell replies, that Mr. Adams's letter of the 3d inst. "is under the serious and anxious consideration of Her Majesty's Government." On the 5th September, Mr. Adams wrote again, that one of the iron-clads is "on the point of. departure from this kingdom on its hostile errand against the United States." He adds, after describing the essentially warlike character and great power of these rams, “It would be superfluous in me to point out to your lordship that this is war." He declined to repeat his arguments, and, with this letter, closed the subject. It was left to be understood that the sailing of the rams would be — not a probable cause of war, but war itself. In the course of the day, he received a letter from Earl Russell, announcing that the government had issued orders to prevent their departure.

The rams were seized, and, after the institution of legal proceedings, the government bought them of the Messrs. Laird for the navy, and so closed the question with the United States. The opposition, under Earl Derby and Lord Chelmsford in the Lords, and Sir Hugh Cairns and Mr. Walpole and Mr. Seymour Fitzgerald in

goods are found, which, if neutral, will protect them from capture. We have already seen that a neutral vessel on the high seas is not such a place. The exemption of neutral property from capture the Commons, attacked the government for having made the seizure in violation of law, and without sufficient proofs. The course of the government was defended by Earl Russell and the Duke of Argyll in the Lords, and the Attorney-General, Sir R. Palmer, in the Commons. In these debates, the government distinctly admitted their obligation to give to the United States their rights under the law of nations, whether Acts of Parliament furnished the means or not; and justified the arrest on the ground of the absolute necessity of stopping the departure of vessels of such a character, under circumstances of reasonable suspicion. Subsequent events showed that the rams were built and destined for immediate rebel service, and that the statements made to the government by the builders were fraudulent. (London Times of 11th February and 13th April, and Annual Register, 1864, pp. 125–129.) Before hearing of the result, Mr. Seward had written to Mr. Adams (Sept. 5, 1863, Dipl. Corr. 1863, p. 369), that, if the rams sailed, and attacked our blockade or ports, it would "make a retaliatory war inevitable."

At the close of the civil war, Mr. Adams, in a correspondence with Earl Russell, beginning April 7, 1865, and closing with a letter of Nov. 3, 1865, reviews the alleged failures of Great Britain to fulfil her obligations as a neutral, and demands compensation for the injuries resulting thereby to the United States.

In his letter of April 7, Mr. Adams argues that formidable vessels of war have gone from British ports, and entered at once on their hostile career, without ever visiting a port of the Confederacy, the crews and armament being British, as well as the vessels and their stores; that these have been procured by rebel agencies openly employed in Liverpool; that these acts have been in violation of our rights, and been caused by the fact that Great Britain accorded belligerent rights to the rebels in an “unprecedented and precipitate manner;" and that, under the circumstances, this amounted to a creation of the maritime belligerent powers of the rebels out of British materials, the result of which had been the gradual transfer of commerce from American to British flags and vessels.

Earl Russell, May 4, 1865, defends the course of Great Britain in recognizing belligerency, and denies any liability for any actual or supposed consequences thereof. As to the building and equipping of vessels, he enters into particulars as to the Alabama, Shenandoah, and Florida, for the purpose of showing that the government honestly and in good faith did its duty in endeavoring to prevent such violations of law; and takes the ground, that, if the government does that, it is not answerable for the consequences if a vessel is fitted out and sails from Great Britain, in violation of her laws, and commits hostilities beyond her jurisdiction. He cited the course taken by the United States on the complaints of Spain and Portugal, during the civil wars in South America, as precedents to the point that a nation is not expected to make compensation where it considers itself to have executed its laws with fidelity, although breaches of neutrality have been committed, and caused serious loss to another nation. (See this note, ante, pp. 559, 560.)

Mr. Adams, on the 20th May, replies, reviewing the subject. He insists that the original cause was the improper according of belligerent rights to the rebels, the direct consequence of which, he insists, was the creation in England of all the maritime power they had; and that, if the government could not repress violations of law arising from this recognition, they were responsible by reason of having furnished the opportunity and occasion. He enters into detalis as to the equipping and sailing of vessels

has no other exceptions than those arising from the carrying of contraband, breach of blockade, and other analogous cases, where the conduct of the neutral gives to the belligerent a right to treat

to show, that, especially in the case of the Alabama, the departure was owing to the unconcealed sympathy, connivance, and neglect of officials between the Minister and the vessel herself. He urges, that, after experience had shown the inefficiency of the statutes as expounded, the United States had suggested amendments, and offered co-operation in making them; but that the British Government had deliberately refused to propose changes to Parliament, after once agreeing to do so, and thereby became responsible for the inadequacy of the statutes. He states the rule as unquestionable, that a want of statute provisions is never a justification to a nation, and cannot be even an excuse or apology, after the want is known and opportunity is open for supplying it. He refers to the fact that the British statutes want those very preventive provisions which the United States added to the act in 1817, at the suggestion of the Portuguese Minister, under circumstances somewhat like. As to the relations of the United States with Spain and Portugal, beside the immediate compliance with the request of Portugal to amend the laws, citizens of the South American States in revolt were prosecuted by the United States for violations of her neutrality laws; while citizens of the United States in insurrection were openly residing in England, and engaged as agents of the Confederate Government in fitting out vessels, notoriously in violation of her laws, yet not one had been prosecuted, although requests to that effect had been made and evidence furnished. The United States did make compensation to Spain for the Miranda expedition, and other demands, by accepting them as fair equivalents for their own demands against Spain, in the treaty of 1819. He complains, that, after the Alabama had, as Lord Russell says, escaped from Great Britain, -having, as the government now admit by ordering her arrest, though too late, violated their laws of neutrality, she had since visited British ports in all parts of the world, and been received with honor and hospitality; and cites a passage from Hautefeuille, to the effect that, under such circumstances, the offended nation can detain and disarm a vessel of war, or, if out of her control, demand her disarmament, and the restitution of her prizes.

Aug. 30, 1865, Earl Russell to Mr. Adams: His lordship re-argues the recognition of belligerency, — contending that the case was sui generis, and that the facts existing and known, as well as the probabilities of the future, demanded the recognition by Great Britain at once, in justice to the United States and herself as well as to the Confederates; that, by recognizing belligerency in both parties, it admitted the right of the United States to blockade all her own ports against British commerce, and to stop and search all British vessels at sea. He re-examines the facts as to the escape of vessels fitted out unlawfully, and contends that the British Government did its duty in good faith. As to the Act of Parliament, he says the determination of the govern ment was not to alter the law, unless, after sufficient trial, it should be proved to be practically inadequate; and contends that the existing law had not been so proved, and that it was not certain that possible alterations would enable more to be done in the way of prevention. He reviews the relations of Portugal with the United States for the purpose of defending his position, that a nation must judge for itself whether it has done its duty honestly, and is not liable for captures made beyond its jurisdic tion by vessels which have, within its jurisdiction, been fitted out in violation of its laws. He refuses to submit the matter to arbitration, on the ground that the decision of the umpire must depend upon the answer to two questions, neither of which Great Britain could put to arbitration with due regard to her own dignity and character,—

his property as enemy's property. The neutral flag constitutes no protection to an enemy's property, and the belligerent flag communicates no hostile character to neutral property. States have

first, whether the government has acted with good faith and due diligence in executing its laws; and, second, whether the law-officers of the crown properly understood the British statutes when they had advised against legal proceedings.

Feb. 18, 1865, Mr. Adams to Earl Russell: After re-arguing the question of the recognition of belligerency, and the cases of Spain and Portugal, Mr. Adams says that the complaint of the United States (beyond the original and main one of hasty recognition of belligerency) is, that the measures for prevention were, in fact, feeble and tardy; and the statutes, as construed and acted upon, were not adequate to meet the just demands of the United States; and proposals to amend them were refused, although they were defective in the very points in which they omitted the preventive provisions of the American acts. It is not enough, he says, for a government even to execute its statutes in good faith, if they are insufficient.

Oct. 17, 1865: Mr. Adams says, that, in view of the reasons assigned by the British Government for refusing an arbitration, no proposal of that kind for the settlement of existing differences will henceforward be insisted upon or submitted by the United States.

Nov. 3, 1865: Earl Russell goes once more over the ground previously examined, as to the course of the United States in dealing with Spain and Portugal, and the course of Great Britain during this war. As to the foreign enlistment acts, he admits that the British act has "not proved, upon trial, to be completely efficacious;" but contends that the American act, with its additional clauses, proved not more so; and proposes that the two governments should now agree upon some amendments to be made to the neutrality acts.

Having declared that Great Britain would not submit to arbitration any subject which involved the question whether the Government, by any of its officials, had failed to act with due diligence, or had rightly construed its own statutes, he proposed a commission to settle any claims, not involving those points, which the two governments might agree to submit to it. (This correspondence is in Supplements to the London Gazette of Oct. 11 and Nov. 11, 1865.)

Mr. Adams to Earl Russell, Oct. 21, 1865, takes up the case of the Shenandoah, and holds the British Government responsible for the captures made by this vessel, on the ground of the manner of her outfit, and the course of the British Government towards her since her career began. He says, that, when the Kearsarge destroyed the Alabama, her crew surrendered as prisoners of war to the Kearsarge, but were taken away and landed in England by a private English vessel, the Deerhound; and that he then (6th September, 1864) represented that many of these men were British subjects, some being on the Naval-Reserve list, and were still under pay and engagement to join some other vessel fitting out in England to take the place of the Alabama (10th November, 1864); that Earl Russell limited his reply to maintaining a right of asylum in Great Britain to foreign belligerents not violating British laws, and no measures were taken to prevent their new enterprise being entered upon; that the steamer Sea King, fitted for war in all respects except armament and ammunition, sailed from London Oct. 8, and her consort, the Laurel, from Liverpool the next day, — having on board many of these men from the Alabama, and the armament and munitions of the Sea King in her hold: and the two vessels met at Madeira, where the Sea King, calling herself the Shenandoah, completed her outfit for war, and began her cruise. She never visited, or attempted to visit, a Confederate port, and earned no national

changed this simple and natural principle of the law of nations, by mutual compact, in whole or in part, according as they believed it to be for their interest; but the one maxim, that free ships make

characteristic which she did not take with her from British soil. The British Government did not denounce the transaction, and deny asylum or countenance to the vessel; but accepted the result as legitimate, and directed that the Shenandoah should have, in all British ports, the privileges of a regularly commissioned public ship of war of a belligerent; and, under that rule, she received supplies in British dependencies, which enabled her to keep the seas and destroy American commerce, even after the nationality whose flag she purported to carry had ceased to exist.

Mr. Adams then restates the case as to the rebel agency in Liverpool, and says that the Naval Bureau of the rebel States was, in fact, at Liverpool, and not at Richmond ; that Captain Bulloch, the head of that bureau, and the other well-known naval and financial agents, there built or bought vessels, enlisted men, obtained armaments and supplies of every kind for them, projected their cruises, regularly paid the officers and men, gave out their commissions, and directed their movements. Of all this, he had furnished conclusive evidence to the British Government; yet no effort was made, even the slightest, to prevent these acts or punish these persons. At the same time, a few Englishmen were prosecuted for acts done in a subordinate character under these men, which resulted either in acquittals, or discharges on recognizance, or small fines. The British Government admitted the authority of Captain Bulloch to act for his government by using him as a medium for transmitting orders to the Shenandoah to stop her cruise, after the rebel government had ceased to exist. These facts leave no doubt, now, that the seat of the rebel naval administration was at Liverpool, and that Captain Bulloch was its chief.

Nov. 7, 1865, Mr. Adams to the Earl of Clarendon: Refers to the arrival of the Shenandoah in Liverpool, and demands that she be given up to his government, that it may be secure against a renewal of her depredations. He suggests that the ravages by this vessel seem to have been continued after her commander knew his government had ceased to exist; and that the British Government should take such measures, at its discretion, as that statement rendered proper.

Nov. 11, 1865, Earl of Clarendon to Mr. Adams: Informs Mr. Adams that the Shenandoah has been surrendered to the British Government, and by that government is delivered up to the United States Consul at Liverpool. He says there is not sufficient legal evidence in possession of the government to prove that Captain Waddell continued hostilities under such circumstances as to constitute piracy jure gentium, and to warrant the detention of any of her crew who are foreigners; and that, upon a muster of her crew, the officer was not satisfied that any on board were known as British subjects. They were all, therefore, discharged.

Nov. 14, 1865, Mr. Adams to Earl of Clarendon: Mr. Adams replies, that, in his opinion, the evidence he had sent to the Foreign Office was such as to make the release of these men a cause of just disappointment to the United States.

Nov. 17, 1865, Earl of Clarendon to Mr. Adams: Says that the papers sent by Mr. Adams, if they contained sufficient proofs, which he denies, could not be received by any magistrate as competent, but that the personal presence of witnesses would be necessary.

Nov. 18, 1865, Lord Clarendon replies at length to Mr. Adams's letter of 21s: October to his predecessor, Earl Russell. As to the crew of the Alabama, they were entitled to asylum in England, whatever they may have done beyond British jurisdiction which was not a violation of British law or the law of nations; and, as to

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