THE QUEEN’S NEUTRALITY PROCLAMATION.
Before the lapse of sixty days after the beginning of Mr. Lincoln’s
administration, Fort Sumter had surrendered after a severe bombardment;
seventy-five thousand troops had been called for; and a blockade of the
southern ports had been proclaimed. The insurrection was constantly
assuming greater proportions and a more threatening attitude. Of actual
war there had been none which resulted in bloodshed, except a street
fight between Federal soldiers and a Baltimore mob. These events,
however, tended to make the relation of foreign powers toward the two
governments in America much more delicate and hazardous.
Upon assuming the duties of the presidency, Mr. Lincoln had appointed
Charles Francis Adams minister to England. Mr. Adams was carefully
instructed to explain to the British government the position of the new
administration toward the seceded states and the relation which they
sustained to the Union. He was also instructed to say that there was
yet hope of a peaceable reconciliation and that, if it was desired to
promote the best interests of the United States, foreign powers should
be careful to commit no act of so-called neutrality, a move which
would only extend aid and sympathy to the secession cause.
It was expected that Mr. Adams would arrive in London early in May and
promptly present the views and policy of Mr. Lincoln to the British
government. In his report of an official interview with Lord Russell
concerning this matter, Mr. Dallas, Mr. Adams’s predecessor in office
at London, says: “I informed him that Mr. Adams had apprised me of his
intention to be on his way hither in the steamship ‘Niagara,’ which
left Boston on the 1st May, and that he would probably arrive in less
than two weeks, by the 12th or 15th inst. His lordship acquiesced
in the expediency of disregarding mere rumor and waiting the full
knowledge to be brought by my successor.”[1]
Notwithstanding this official assurance from Lord Russell that nothing
would be done prior to the arrival of Mr. Adams, a course of action was
immediately determined upon which seemed designed to give the greatest
possible offense to the United States.
On May 6, in answer to a question put to him in the House of Commons
concerning the proposed policy of Great Britain toward the Confederacy,
his lordship said: “The attorney and solicitor-general, and the queen’s
advocate, and the government have come to the opinion that the Southern
Confederacy of America, according to those principles which seem to
be just, must be treated as a belligerent.”[2] On May 13, the very
day that Mr. Adams landed at Liverpool and only a few hours before
he arrived in London, as if to exhibit the greatest possible lack
of courtesy toward him and the government which he represented, the
queen’s neutrality proclamation was issued. It forbade the enlistment
of all British subjects on land or sea in the service of either of
the contending parties and also warned her majesty’s subjects not to
carry officers, soldiers, dispatches, or any article of the nature
of contraband of war for the use or service of either the Federals
or Confederates. This constituted a complete recognition of the
Confederacy as a belligerent power, that is, as entitled, so far as
England was concerned, to all those exceptional rights and privileges
that international law assigns to sovereign states which are at war
with each other.
Perhaps a brief explanation of this matter would not be inappropriate
here. All sovereign, or independent, states are governed in their
relations toward each other by a collection of rules called
international law. These rules or laws are only precedents, maxims
and opinions which have acquired all the force of law from having
been generally accepted and acted upon and from a sense that it is a
matter of great and universal convenience to have some fixed standards
for adjusting the disputes of sovereign nations and regulating
their conduct toward each other. International law assigns to all
sovereign states certain rights, privileges and obligations which
are not extended to unrecognized communities or nations. In the
beginning of its career an insurgent state can not possess any of the
privileges which international law assigns to independent states. To
recognize the belligerency of such a state is to accord to it, by the
recognizing power, all of those exceptional war privileges and rights
which international law would give to it, if it were sovereign. Such
recognition carries with it no rights, privileges or conditions except
those necessary for conducting hostilities. Insurgents carrying on war
without being recognized as belligerents may be treated as rebels,
traitors and pirates. When such recognition has been extended to them,
they are no longer so regarded, and when captured are treated as
prisoners of war. When a foreign power recognizes the belligerency of
an insurgent government it thereby places that government and the one
with which the insurgents are at war upon an equality so far as war
privileges and duties are concerned. A case will serve to illustrate.
There was recently a civil war in Brazil. The insurgents were never
recognized as belligerents and hence were not entitled to any more
rights and privileges than traitors and pirates have. If the Brazilian
government had conceded belligerent rights to them, captured insurgents
would then have been entitled to all of the rights of prisoners of war.
Indeed such recognition would have clothed the insurgents, so far as
the Brazilian government was concerned, with all of the war powers,
privileges and duties that belong to a sovereign and independent state,
but it would have done nothing more.
The same advantages would have been secured to the insurgents, so
far as the United States was concerned, if the Federal government at
Washington had recognized them as belligerents. In all of their future
relations with the United States they would have been placed upon an
equal footing with the Brazilian government as regards all war rights,
privileges and duties. No other rights would have been conferred, for
a recognition of belligerency is only partial in character. No treaty
with the United States could have been concluded, neither could any
ambassador have been sent to this country, or one received from it.
A hasty recognition of this character by the United States or any other
foreign country would have been an act very unfriendly to the Brazilian
government.
The right of a foreign state to recognize the belligerency, or even the
independence, of an insurgent government, under certain conditions, can
not be questioned. The ends and purposes of such recognition, however,
may be quite different in character. They may be arranged under two
separate heads.
First. The recognition of a mere fact as it actually exists. Where a
state of war or of independence exists beyond doubt or question, it may
be recognized as a fact. It is not only the privilege but also the duty
of foreign states to recognize a state of war, or belligerency, after
such state exists in fact. It is not easy to define a state of war,
that is, to say precisely how much of force is required and how perfect
the organization must be in order to distinguish such a state from that
of mere insurrection. Language can not express the idea with exactness.
No one will say that a state of war existed during the Dorr rebellion
in Rhode Island in 1842, neither will it be pretended that such a state
did not exist while the American civil war was in progress. Recognition
should be accorded also to a government of whatever origin, after its
independence has been fully established. An insurgent government rarely
succeeds in achieving its independence at a blow. There is usually a
period of struggle and uncertainty during which it is very uncertain
whether the new order of things will prevail or not. While such a
state of uncertainty exists, it is neither prudent nor wise for neutral
nations to acknowledge the independence of an insurgent government,
since a fact should not be acknowledged in advance of its actual
existence.
Second. The recognition of belligerency or even of independence by
a foreign government may be accorded not simply to acknowledge an
existing fact but as a means to an end. Such an act would be very
unfriendly or even hostile toward the government against which the
insurgent power was opposed. France acknowledged the independence of
the United States as a means to achieve that result, not as an existing
fact.
In view of the foregoing principles and of the circumstances under
which the British neutrality proclamation was issued, it becomes
very evident that it was deliberately designed to aid and encourage
the insurgent cause in the United States, and, at the same time,
to discourage and depress the friends of the Union. The proofs are
manifest from an examination of the case.
1. Only seventy days before her majesty’s neutrality proclamation was
issued, Mr. Lincoln’s administration had assumed the responsibilities
of government at Washington. During the preceding administration all
departments of government there had become greatly demoralized, and
it was necessary to reorganize and purify them before any steps could
be taken to offer active resistance to the insurrection. Time enough
had not elapsed for the new administration to formulate its views
and develop its policy toward the impending difficulties. Although
these things were understood at London and Mr. Adams was hourly
expected there, yet the British government refused to grant the
brief time necessary for him to arrive and present the case of the
new administration, before determining upon its course of action. The
neutrality proclamation was issued with a haste which was “precipitate
and unprecedented,” as Mr. Adams afterward said. The friends of the
Union could not but regard it, in the language of Mr. Justin McCarthy,
“as an act of unseemly and even indecent haste, as evidence of an
overstrained anxiety to assist and encourage the southern rebels.”[3]
2. A state of war did not exist in the United States on May 13, 1861,
hence there was no occasion for a neutrality proclamation. From the
very nature of the case it would not be easy to say precisely when
such a state of war or belligerency did begin to exist, but the United
States itself, and not a foreign nation, was the proper authority
to pronounce judgment concerning this matter. At the time mentioned
above, belligerent rights had not been conceded to the insurgents by
the Federal government. The “Savannah,” a Confederate armed steamer,
was captured June 3, 1861. Her crew, together with the crews of other
such vessels that had been captured, were tried for piracy in a United
States court, and, in at least one case, a conviction was obtained.[4]
If the belligerency of the South had been recognized by the United
States government at that time, such prosecutions and conviction in a
Federal court would have been impossible.
3. The action taken by Great Britain did not conform to the usages of
friendship in such cases. Mr. Seward has said concerning this matter:
“It will be found, we think, that all nations which have desired to
practice justice and friendship towards a state temporarily disturbed
by insurrection have foreborne from conceding belligerent privileges
to the insurgents in anticipation of their concession by the disturbed
state itself. A nation which departs from this duty always practically
commits itself as an ally to the insurgents.”[5] It was not long after
the neutrality proclamation had been issued until the insurrection
assumed the character of a great civil war, and belligerent rights
were then duly extended to the Confederates by all of the Federal
authorities.
In the beginning it was only a personal war, an effort of the Federal
government to suppress rebellion on the part of individuals. United
States courts have repeatedly held that a state of civil war, that
is, a war between governments, one which entitled the Confederates to
belligerent recognition, did not exist until after President Lincoln’s
proclamation to that effect issued August 16, 1861, in pursuance of the
act of congress of July 13, 1861. Belligerent recognition afterward
extended by foreign powers would have been entirely in accordance with
the principles of strict fairness and neutrality.[6]
4. The Confederacy was composed of states which had withdrawn from
the Union in so far as they were able to do so. This had been done by
an unconstitutional act known as secession--one whose validity was
never at any time admitted by the people of the United States. Their
foundation for a government was not solid enough to command any degree
of respect or confidence from foreign powers, and therefore at that
time not worthy even of recognition as belligerents.
The principle of secession without restraint or opposition of any kind
had been established by them when they withdrew from the Federal Union.
Their own organization was not a union but a confederation with each
state acting in its own “sovereign and independent capacity.”[7] With
a government based upon a confederation of states each of which had
the privilege of seceding at pleasure, what assurance could be given
that treaty obligations would be met, or that debts contracted would be
paid, or that any sort of act guaranteed by the common authority would
be executed in good faith? Could it have been motives friendly to the
United States which induced England to extend belligerent recognition
to such a government at that time?
5. It was very well understood in England that the Confederates had no
navy worthy of the name, and that their facilities for building ships
and manufacturing munitions of war in their own country were very
limited. It was doubtless with a view of supplying the Confederates
with these things that the neutrality proclamation was issued so
early. This is evident from a speech made by Lord Chelmsford in the
British parliament in which he said: “If, he might add, the Southern
Confederacy had not been recognized by us as a belligerent power, he
agreed with his noble and learned friend (Brougham) that any Englishman
aiding them by fitting out a privateer against the Federal government
would be guilty of piracy.”[8]
6. The neutrality proclamation created the condition of belligerency on
the part of the Confederates instead of acknowledging an existing fact.
Mr. Adams said concerning this matter: “The British government took
the initiative and decided practically that it was a struggle of two
sides. And furthermore it pronounced the insurgents to be a belligerent
state before they had ever shown their capacity to maintain any kind
of warfare whatever except within their own harbors, and under every
possible advantage. It considered them a marine power before they had
ever exhibited a single privateer upon the ocean. Not a single armed
vessel had yet been issued from any port under the control of these
people. They were not a navigating people. They had made no prizes, so
far as I knew, excepting such as they had caught by surprises. Even now
I could not learn that they had fitted out anything more than a few old
steamboats utterly unable to make any cruise on the ocean, and scarcely
strong enough to bear a cannon of any caliber.”[9]
As has already been stated any organized form of society may be
recognized when it has advanced far enough to defend itself against the
assaults of enemies, and has exhibited sufficient capacity to maintain
binding relations with other powers. But the case is entirely different
when a measure of recognition brings about a result which is due to
such recognition only.
Mr. Hamilton Fish, President Grant’s secretary of state, has well
said of this matter: “The assumed belligerency of the insurgents
was a fiction--a war on paper only, not in the field--like a paper
blockade, the anticipation of supposed belligerency to come, but which
might never have come, if not thus anticipated and encouraged by her
majesty’s government.”[10]
Many attempts have been made to defend the course of the British
government in this matter. A singularly fair-minded writer in his
treatment of other subjects says: “If there was no _bellum_ going on
the commerce of the world could not be expected to recognize President
Lincoln’s blockade of Charleston and Savannah and New Orleans.
International law on the subject is quite clear. A state can not
blockade its own ports. It can indeed order a closure of its own ports.
But a closure of the ports would not have been so effective for the
purposes of the federal government as a blockade. A closure would have
been a matter of municipal law only. An offender against the ordinance
of closure could be only dealt with lawfully in American waters; an
offender against the decree of blockade could be pursued into the open
sea.”[11] Lord Stanley once said: “Her majesty’s government had but two
courses open to them on receiving the intelligence of the president’s
proclamation, namely, either that of acknowledging the blockade and
proclaiming the neutrality of her majesty, or that of refusing to
acknowledge the blockade, and insisting upon the right of her majesty’s
subjects to trade with the ports of the South where the government of
the United States could exercise no fiscal control at that time.”
The ablest, perhaps, of English writers upon international law has said
in defense of the course of his government: “In many of the southern
ports there was a large amount of British property; the cargoes in the
Mississippi alone at the end of May were computed to be worth a million
sterling, and the greater part of these had been shipped for Liverpool.
A blockade had been proclaimed extending over a coast line of some
three thousand miles. Letters of marque had been publicly offered, an
invitation very tempting to the adventurous and reckless men who are
always to be found in every maritime nation. Both the government of
the United States and the _de facto_ government of the confederacy had
assumed and were actually exercising on the high seas the rights of
war; and the neutral who resists the enforcement of those rights does
so under the penalty of capture. Branches of trade perfectly lawful
before might now be treated as unlawful, and punished by seizure and
confiscation. This was the state of facts existing during the first
week of May so far as they were known to the English public; and on
these facts the government was called upon both by the mercantile
community and by some of the warmest partisans of the northern cause to
define its position, to recognize or repudiate the blockade, to accept
or reject the character of a neutral power, and to publish its decision
as widely and as speedily as possible.”[12]
The foregoing arguments may be summed up in two propositions, viz.:
that President Lincoln’s proclamation of blockade constituted a prior
recognition of the existence of civil war in the United States, and
consequent belligerency on the part of the South, and that it was
necessary for the British government to do something to protect its
citizens and their interests against losses in or near the seat of war.
In answer to the latter proposition it may be said that it was not at
all necessary for British subjects to be in any of the places of danger
or to remain there, and if they persisted in doing so, they and their
interests had as much protection as did the citizens of the United
States who were similarly situated, and that they certainly did not
require any more.
Was Confederate belligerency recognized by President Lincoln’s
proclamation declaring a blockade of the southern ports?
At the time of her majesty’s neutrality proclamation, May 13, 1861,
whatever of war that may have existed was not a war of governments,
but only of individuals owing allegiance to the federal government. If
the authority of the United States was for the time being suspended
in some of the states, those states were still component parts of
the union. The disturbance was legally and officially held by all of
the federal authorities civil as well as military, to be strictly
local in character, and as such the government at Washington had an
undoubted right to close the ports within the states in insurrection
by a blockade, and to forbid all intercourse between strangers and
the people of the blockaded cities. The federal authorities also had
the right to use the armed and naval forces of the United States to
enforce a blockade after that course had been determined upon. The
form of closure best adapted to the ends in view was a blockade which
was legally declared and executed as a means for subduing a local
insurrection, and, until such local trouble actually developed into a
state of civil war, the mere fact that certain ports were blockaded
did not confer any belligerent rights whatever upon the insurgents.
If a mere expedient be adopted by the federal government as a remedy
for local insurrection, it does not follow as a consequence that the
insurgents are invested with belligerent rights which foreign nations
must immediately recognize.
The position that a nation can not blockade its own ports, but can
only order a closure of them when they are held by a hostile force,
can not be defended, although Mr. Justin McCarthy holds the contrary
view of the matter. If the right of blockade be denied under such
circumstances, the right of the government to the port is denied; but
if the government have no right, then the port becomes free, and would
remain so unless it be destroyed by the government that originally held
and yet claimed it, because a mere decree of closure without a blockade
superadded could not avail anything against a foreign nation that might
choose to confer belligerent rights upon the insurgents.
As an example of this, an illustrative case may be cited. During
a period of five years succeeding the year 1831, Russia blockaded
her own ports on the eastern shore of the Black sea because they
were in the possession of Circassian rebels. This blockade was
recognized by England without conferring belligerent rights on the
Circassians. English claims for losses occasioned by this blockade were
surrendered.[13]
In this instance, if the United States chose the blockade as the best
form of remedy for the insurrection, and, if the rights and interests
of foreigners were threatened thereby, it became the duty of the
federal authorities to extend to all such aliens the fullest measure of
protection, and to see that their rights were in all cases inviolably
respected.
If these views of the case be correct, there can be no defense whatever
for the action of the British government with regard to the neutrality
proclamation. In the opinion of every unprejudiced mind, it must ever
be classed with the long catalogue of unjust acts and international
wrongs for which England has been noted in her relations with weaker
nations or with stronger countries in distress.
AUTHORITIES AND REFERENCES.
1. American Annual Cyclopedia, 1861.
2. Bemis, George: Pamphlet, “Hasty Recognition.”
3. Blaine, J. G.: Twenty Years of Congress.
4. Bernard, Montague: The Neutrality of Great Britain During the
American Civil War.
5. British and Foreign State Papers, Vol. XXVI.
6. Constitution of the Confederate states.
7. Claims against Great Britain, Vol. IV. Public Document, 1st
Session 41st Congress.
8. Diplomatic correspondence with Great Britain, 1861, 1867 and 1869.
9. De Gasparin, Agénor: L’Amérique devant l’Europe.
10. Hall, W. E.: International Law.
11. Hansard’s Parliamentary Debates.
12. McCarthy, Justin: History of Our Own Times.
13. North American Review, January, 1862.
14. Senate Ex. Doc.: 2d Session 37th Congress, Vol. I.
15. Sumner, Charles: The Works of, Vol. VII.
16. Text of the Queen’s Neutrality Proclamation. See British Blue
Book containing official documents for 1861.
FOOTNOTES:
[1] Mr. Dallas to Mr. Seward, May 2, 1861.
[2] Hansard’s Parliamentary Debates, Vol. CLXII, p. 1566.
[3] The History of Our Own Times, Vol. II, p. 193.
[4] American Annual Cyclopedia for 1861, pp. 150 and 151.
[5] Mr. Seward to Mr. Adams, Jan. 12, 1867.
[6] See decisions of U. S. circuit court, state of Maryland, 6 Am. Law
Reg., N. S., 732; U. S. dist. court eastern dist. of Missouri, 3 Am.
Law Reg., N. S., 735; U. S. supreme court, 10 Wallace, 158.
[7] See Preamble of the Constitution of the Confederate States.
[8] Hansard’s Parliamentary Debates, Vol. CLXII, p. 2084.
[9] Mr. Adams to Mr. Seward, report of statements made to Lord Russell,
May 21, 1861.
[10] Mr. Fish to Mr. Motley, September 25, 1869.
[11] Justin McCarthy, History of Our Own Times, Vol. II, p. 193.
[12] Montague Bernard’s Neutrality of Great Britain During the American
War, pp. 128-130.
[13] See British and Foreign State Papers, Vol. XXVI, p. 2.