After the outbreak of the French Revolution in 1789, the Government of France, owing to the temporary inferiority of her naval force, openly and deliberately equipped privateers in our ports. These privateers captured British vessels in United States waters, and brought them as prizes into United States ports. These facts formed the basis of demands made upon the United States by the British plenipotentiary. The demands had reference, not to the accidental evasion of a munic.i.p.al law of the United States by a particular ship, but to a systematic disregard of international law upon some of the most important points of neutral obligation.

To these demands Mr. Jefferson, then Secretary of State under President Washington, thus replied on September 3, 1793:

"We are bound by our treaties with three of the belligerent nations, by all the means in our power, to protect and defend their vessels and effects in our ports or waters, or on the seas near our sh.o.r.es, and to recover and restore the same to the right owners when taken from them. If all the means in our power are used, and fail in this effort, we are not bound by our treaties with those nations to make compensation. Though we have no similar treaty with Great Britain, it was the opinion of the President that we should use toward that nation the same rule which, under this Article, was to govern us with other nations, and even to extend it to the captures made on the high-seas and brought into our ports, if done by vessels which had been armed within them."

It will be observed that the justice of rest.i.tution, or compensation, for captures made on the high-seas and brought into our ports, is only admitted by President Washington upon one condition, which is expressed in these words: "If done by vessels which had been armed within them." The terms of the contract, which the Government of the United States endeavored to make at the ship-yards of England, were for the delivery of the ship or ships of war, "to be finished complete, with guns and everything appertaining." The contract was not taken, as too little time was allowed for its execution. But, if entered into and executed, it would have been a direct violation of international law.

In the instance of our cruisers built in the ports of England, it will be observed that they went to sea without arms or warlike stores, and, at other ports than those of Great Britain, they were converted into ships of war and put into commission by the authority of the Confederate Government. The Government of the United States a.s.serted that they were built in the ports of Great Britain, and thereby her duty of neutrality was violated, and the Government made responsible for the damages sustained by private citizens of the United States in consequence of her captures on the seas. To this declaration of Mr. Adams, Earl Russell (he had been made an earl) replied on September 14, 1863, thus:

"When the United States Government a.s.sumes to hold the Government of Great Britain responsible for the captures made by vessels which may be fitted out as vessels of war in a foreign port, because such vessels were originally built in a British port, I have to observe that such pretensions are entirely at variance with the principles of international law, and with the decisions of American courts of the highest authority; and I have only, in conclusion, to express my hope that you may not be instructed again to put forward claims which her Majesty's Government can not admit to be founded on any grounds of law or justice."

On October 6, 1863, Mr. Seward, the Secretary of State of the United States Government, replied to this declaration of Earl Russell, saying:

"The United States do insist, and must continue to insist, that the British Government is justly responsible for the damages which the peaceful, law-abiding citizens of the United States [!] sustain by the depredations of the Alabama."

Earl Russell answered on October 26, 1863, thus:

"I must request you to believe that the principle contended for by her Majesty's Government is not that of commissioning, equipping, and manning vessels in our ports to cruise against either of the belligerent parties--a principle which was so justly and unequivocally condemned by the President of the United States in 1793... . But the British Government must decline to be responsible for the acts of parties who fit out a seeming merchant-ship, send her to a port or to waters far from the jurisdiction of British courts, and there commission, equip, and man her as a vessel of war."

The duty of neutral nations relative to the supply of warlike stores is expressed in these words:

"It is not the practice of nations to undertake to prohibit their own subjects by previous laws from trafficking in articles contraband of war. Such trade is carried on at the risk of those engaged in it, under the liabilities and penalties prescribed by the law of nations or particular treaties." [59]

We now quote from the great American commentator on the Const.i.tution of the United States and on the law of nations:

"It is a general understanding that the powers at war may seize and confiscate all contraband goods, without any complaint on the part of the neutral merchant, and without any imputation of a breach of neutrality in the neutral sovereign himself. It was contended on the part of the French nation, in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent powers. But it was successfully shown, on the part of the United States, that neutrals may lawfully sell at home to a belligerent power, or carry themselves to the belligerent powers, contraband articles, subject to the right of seizure _in transitu_. This right has been explicitly declared by the judicial authorities of this country [United States]. The right of the neutral to transport, and of the hostile power to seize, are conflicting rights, and neither party can charge the other with a criminal act." [60]

In accordance with these principles, President Pierce's message of December 31, 1855, contains the following pa.s.sage:

"In pursuance of this policy, the laws of the United States do not forbid their citizens to sell to either of the belligerent powers articles contraband of war, to take munitions of war or soldiers on board their private ships for transportation; and, although in so doing the individual citizen exposes his property or person to some of the hazards of war, his acts do not involve any breach of international neutrality, nor of themselves implicate the Government."

Perhaps it may not be out of place here to notice the charge of the Lord Chief Baron of the Exchequer to the jury in the case of the Alexandra, a vessel of one hundred and twenty tons, under construction at Liverpool for our Government. The case came on for trial on June 22, 1863, in the Court of Exchequer, sitting at _nisi prius_, before the Lord Chief Baron and a special jury. After it had been summed up, the Lord Chief Baron said:

"This is an information on the part of the Crown for the seizure and confiscation of a vessel that was in the course of preparation but had not been completed. It is admitted that it was not armed, and the question is, whether the preparation of the vessel in its then condition was a violation of the Foreign Enlistment Act. The main question you will have to decide is this: Whether, under the seventh section of the act of Parliament, the vessel, as then prepared at the time of seizure, was liable to seizure? The statute was pa.s.sed in 1819, and upon it no question has ever arisen in our courts of justice; but there have been expositions of a similar statute which exists in the United States. I will now read to you the opinions of some American lawyers who have contributed so greatly to make law a science. [His lordship then read a pa.s.sage from Story and others.]

These gentlemen are authorities which show that, when two belligerents are carrying on a war, a neutral power may supply, without any breach of international law and without a breach of the Foreign Enlistment Act, munitions of war--gunpowder, every description of arms, in fact, that can be used for the destruction of human beings.

"Why should ships be an exception? I am of opinion, in point of law, they are not. The Foreign Enlistment Act was an act to prevent the enlistment or engagement of his Majesty's subjects to serve in foreign armies, and to prevent the fitting out and equipping in his Majesty's dominions vessels for warlike purposes without his Majesty's license. The t.i.tle of an act is not at all times an exact indication or explanation of the act, because it is generally attached after the act is pa.s.sed. But, in adverting to the preamble of the act, I find that provision is made against the equipping, fitting out, furnishing, and arming of vessels, because it may be prejudicial to the peace of his Majesty's dominions.

"The question I shall put to you is, Whether you think that vessel was merely in a course of building to be delivered in pursuance of a contract that was perfectly lawful, or whether there was any intention in the port of Liverpool, or any other English port, that the vessel should be fitted out, equipped, furnished, and armed for purposes of aggression. Now, surely, if Birmingham, or any other town, may supply any quant.i.ty of munitions of war of various kinds for the destruction of life, why object to ships? Why should ships alone be in themselves contraband? I asked the Attorney-General if a man could not make a vessel intending to sell it to either of the belligerent powers that required it, and which would give the largest price for it, would not that be lawful? To my surprise, the learned Attorney-General declined to give an answer to the question, which I think a grave and pertinent one. But you, gentlemen, I think, are lawyers enough to know that a man may make a vessel and offer it for sale. If a man may build a vessel for the purpose of offering it for sale to either belligerent party, may he not execute an order for it?

That appears to be a matter of course. The statute is not made to provide means of protection for belligerent powers, otherwise it would have said, 'You shall not sell powder or guns, and you shall not sell arms'; and, if it had done so, all Birmingham would have been in arms against it. The object of the statute was this: that we should not have our ports in this country made the ground of hostile movements between the vessels of two belligerent powers, which might be fitted out, furnished, and armed in these ports. The Alexandra was clearly nothing more than in the course of building.

"It appears to me that, if true that the Alabama sailed from Liverpool without any arms at all, as a mere ship in ballast, and that her armament was put on board at Terceira, which is not in her Majesty's dominions, then the Foreign Enlistment Act was not violated at all."

After reading some of the evidence, his lordship said:

"If you think that the object was to furnish, fit out, equip, and arm that vessel at Liverpool, that is a different matter; but if you think the object really was to build a ship in obedience to an order, in compliance with a contract, leaving those who bought it to make what use they thought fit of it, then it appears to me that the Foreign Enlistment Act has not been broken."

The jury immediately returned a verdict for the defendants. An appeal was made, but the full bench decided that there was no jurisdiction.

Against this decision an appeal was taken to the House of Lords, and there dismissed on some technical ground.

Sufficient has been said to show that the action of the Confederate Government relative to these cruisers is sustained and justified by international law. The complaints made by the Government of the United States against the Government of Great Britain for acts involving a breach of neutrality find no support in the letter of the law or in its principles, and were conclusively answered by the interpretations of _American jurists_. At the same time they are condemned by the antecedent acts of the United States Government.

Some of these will be presented.

In the War of the American Revolution, Dr. Franklin and Silas Deane were sent to France as commissioners to look after the interests of the colonies. In the years 1776 and 1777 they became extensively connected with naval movements. They built, and purchased, and equipped, and commissioned ships, all in neutral territory; even filling up blank commissions sent out to them by the Congress for the purpose. Among expeditions fitted out by them was one under Captain Wickes to intercept a convoy of linen-ships from Ireland. He went first into the Bay of Biscay, and afterward entirely around Ireland, sweeping the sea before him of everything that was not of force to render the attack hopeless. Mr. Deane observes to Robert Morris that it "effectually alarmed England, prevented the great fair at Chester, occasioned insurance to rise, and even deterred the English merchants from shipping in English bottoms at any rate, so that, in a few weeks, forty sail of French ships were loading in the Thames, on freight, an instance never before known."

In the spring of 1777 the Commissioners sent an agent to Dover, who purchased a fine, fast-sailing English-built cutter, which was taken across to Dunkirk. There she was privately equipped as a cruiser, and put in command of Captain Gustavus Conyngham, who was appointed by filling up a blank commission from John Hanc.o.c.k, the President of Congress. This commission bore date March 1, 1777, and fully ent.i.tled Mr. Conyngham to the rank of captain in the navy. His vessel, although built in England, like many of our cruisers, was not armed or equipped there, nor was his crew enlisted there, but in the port of a neutral. This vessel was finally seized under some treaty obligations between France and England. The Commissioners immediately fitted out another cruiser, and still another. It was also affirmed that the money advanced to Mr. John Adams for traveling expenses, when he arrived in Spain a year or two later, was derived from the prizes of these vessels, which had been sent into the ports of Spain.

Captain Conyngham was a very successful commander, but he was made a prisoner in 1779. The matter was brought before Congress in July of the same year, and a committee reported that this "late commander of an armed vessel in the service of the States, and taken on board of a private armed cutter, had been treated in a manner contrary to the dictates of humanity, and the practice of Christian civilized nations." Whereupon it was resolved to demand of the British Admiral in New York that good and sufficient reason be given for this conduct, or that he be immediately released from his rigorous and ignominious confinement. If a satisfactory answer was not received by August 1st, so many persons as were deemed proper were ordered to be confined in safe and close custody, to abide the fate of the said Gustavus Conyngham. No answer having been received, one Christopher Hale was thus confined. In December he pet.i.tioned Congress for an exchange, and that he might procure a person in his room. Congress replied that his pet.i.tion could not be granted until Captain Conyngham was released, "as it had been determined that he must abide the fate of that officer." Conyngham was subsequently released.

The whole number of captures made by the United States in this contest is not known, but six hundred and fifty prizes are said to have been brought into port. Many others were ransomed, and some were burned at sea.

Prescribed limits will not permit me to follow out in detail the past history of the United States as a neutral power. It must suffice to recall the memory of readers to a few significant facts in our more recent history:

The recognition of the independence of Greece in her struggle with Turkey, and the voluntary contributions of money and men sent to her; the recognition of the independence of the Spanish provinces of South America, and the war-vessels equipped and sent from the ports of the United States to Brazil during the struggle with Spain for independence; the ships sold to Russia during her war with England, France, and Turkey; the arms and munitions of war manufactured at New Haven, Connecticut, and Providence, Rhode Island, sold and shipped to Turkey to aid her in her late struggle with Russia.

The reader will observe the prompt.i.tude with which the Government of the United States not only accorded belligerent rights, but, even more, recognized the independence of nations struggling for deliverance from oppressive rulers. The instances of Greece and the South American republics are well known, and that of Texas must be familiar to every one. One could scarcely believe, therefore, that the chief act of hostility, or, rather, the great crime of the Government of Great Britain in the eyes of the Government of the United States, was the recognition by the latter of the Confederate States as a belligerent power, and that a state of war existed between them and the United States. This was the constantly repeated charge against the British Government in the dispatches of the United States Government from the commencement of the war down nearly to the session of the Geneva Conference in 1872. In the correspondence of the Secretary, in 1867, he says:

"What is alleged on the part of the United States is, that the Queen's proclamation, which, by conceding belligerent rights to the insurgents, lifted them up for the purpose of insurrection to an equality with the nation which they were attempting to overthrow, was premature because it was unnecessary, and that it was, in its operation, unfriendly because it was premature."

Again he says, and, if sincerely, shows himself to be utterly ignorant of the real condition of our affairs:

"Before the Queen's proclamation of neutrality, the disturbance in the United States was merely a local insurrection. It wanted the name of war to enable it to be a civil war and to live, endowed as such, with maritime and other belligerent rights. Without the authorized name, it might die, and was expected not to live and be a flagrant civil war, but to perish a mere insurrection."

The first extract in itself contains a fiction. If the Queen's proclamation possessed such force as to raise the Confederate States to an equality with the United States as a belligerent, perhaps another proclamation of the Queen might have possessed such force, if it had been issued, as to have lifted the Confederate States from the state of equality to one of independence. This is a novel virtue to be ascribed to a Queen's proclamation. This idea must have been borrowed from our neighbors of Mexico, where a _p.r.o.nunciamiento_ dissolves one and establishes a rival administration. How much more rational it would have been, to say that the resources and the military power of the Confederate States placed them, at the outset, on the footing of a belligerent, and the Queen's proclamation only declared a fact which the announcement of a blockade of the Southern ports by the Government of the United States had made manifest!-- blockade being a means only applicable as against a foreign foe.

Nevertheless, the Government of the United States, although refusing to concede belligerent rights to the Confederate States, was very ready to take advantage of such concession by other nations, whenever an opportunity offered. The voluminous correspondence of the Secretary of State of the United States Government, relative to the Confederate cruisers and their so-called "depredations," was filled with charges of violations of international law, which could be committed only by a belligerent, and which, it was alleged, had been allowed to be done in the ports of Great Britain. On this foundation was based the subsequent claim for damages, advanced by the Government of the United States against that of Great Britain; and, for the pretended lack of "due diligence" in watching the actions of this Confederate belligerent in her ports, she was mulcted in a heavy sum by the Geneva Conference, and paid it to the Government of the United States.

It is a remarkable fact that the Government of the United States, in no one instance, from the opening to the close of the war, formally spoke of the Confederate Government or States as belligerents.

Although on many occasions it acted with the latter as a belligerent, yet no official designations were ever given to them or their citizens but those of "insurgents," or "insurrectionists." Perhaps there may be something in the signification of the words which, combined with existing circ.u.mstances, would express a state of affairs that the authorities of the Government of the United States were in no degree willing to admit, and vainly sought to prevent from becoming manifest to the world.

The party or individuality against which the Government of the United States was conducting hostilities consisted of the people within the limits of the Confederate States. Was it against them as individuals in an unorganized condition, or as organized political communities?

In the former condition they might be a mob; in the latter condition they formed a State. By the actions of unorganized ma.s.ses may arise insurrections, and by the actions of organized people or states, arise wars.

The Government of the United States adopted a fiction when it declared that the execution of the laws in certain States was impeded by "insurrection." The persons whom it designated as insurrectionists were the organized people of the States. The ballot-boxes used at the elections were State boxes. The judges who presided at the elections were State functionaries. The returns of the elections were made to the State officers. The oaths of office of those elected were administered by State authority. They a.s.sembled in the legislative chambers of the States. The results of their deliberations were directory to the State, judicial, and executive officers, and by them put in operation. Is it not evident that, only by a fiction of speech, such proceedings can be called an insurrection?

Why, then, did an intelligent and powerful Government, like that of the United States, so outrage the understanding of mankind as to adopt a fiction on which to base the authority and justification of its hostile action? The United States Government is the result of a compact between the States--a written Const.i.tution. It owes its existence simply to a delegation of certain powers by the respective States, which it is authorized to exercise for their common welfare.

One of these powers is to "suppress insurrections"; but there is no power delegated to subjugate States, the authors of its existence, or to make war on any of the States. If, then, without any delegated power or lawful authority for its proceedings, the Government of the United States commenced a war upon some of the States of the Union, how could it expect to be justified before the world? It became the aggressor--the Attila of the American Continent. Its action inflicted a wound on the principles of const.i.tutional liberty, a crashing blow to the hopes that men had begun to repose in this latest effort for self-government, which its friends should never forgive nor ever forget. To palliate the enormity of such an offense, its authors resorted to a vehement denial that their hostile action was a war upon the States, and persistently a.s.serted the fiction that their immense armies and fleets were merely a police authority to put down insurrection. They hoped to conceal from the observation of the American people that the contest, on the part of the central Government, was for empire, for its absolute supremacy over the State governments; that the Const.i.tution was roiled up and laid away among the old archives; and that the conditions of their liberty, in the future, were to be decided by the sword or by "national" control of the ballot-box.

With like disregard for truth, our cruisers were denounced as "_pirates_" by the Government of the United States. A pirate, or armed piratical vessel, is by the law of nations the enemy of mankind, and can be destroyed by the ships of any nation. The distinction between a lawful cruiser and a pirate is that the former has behind it a government which is recognized by civilized nations as ent.i.tled to the rights of war, and from which the commander of the cruiser receives his commission or authority, but the pirate recognizes no government, and is not recognized by any one. As the Attorney-General of Great Britain said in the Alexandra case:

"Although a recognition of the Confederates as an independent power was out of the question, yet it was right they should be admitted by other nations within the circle of lawful belligerents--that is to say, that their forces should not be treated as pirates, nor their flag as a piratical flag. Therefore, as far as the two belligerents were concerned, on the part of this and other governments, they were so far put on a level that each was to be considered as ent.i.tled to the right of belligerents--the Southern States as much as the other."

The Government of the United States well knew that, after the issue of the Queen's proclamation recognizing our Government, the application of the word pirate to our cruisers was simply an exhibition of vindictive pa.s.sion on its part. A _de facto_ Government by its commission legalizes among nations a cruiser. That there was such a Government even its own courts also decided. In a prize case (2 Black, 635), Justice Greer delivered the opinion of the Supreme Court, saying:

"It [the war] is not less a civil war, with belligerent parties in hostile array, because it may be called an 'insurrection' by one side, and the insurgents be considered as rebels and traitors. It is not necessary that the independence of the revolted province or State be acknowledged in order to const.i.tute it a party belligerent in a war, according to the laws of nations. Foreign nations acknowledge it a war by a declaration of neutrality. The condition of neutrality can not exist unless there be two belligerent parties."

In the case of the Santissima Trinidad (7 Wheaton, 337), the United States Supreme Court says:

"The Government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed her determination to remain neutral between the parties. Each party is therefore deemed by us a belligerent, having, so far as concerns us, the sovereign rights of war."