CHAPTER V.

ENGLISH NEGOTIATIONS WITH THE INSURGENTS.

In April, 1856, ambassadors from all of the principal European

countries met at Paris and adopted as articles of maritime law the

following propositions:

“1. Privateering is and remains abolished.

“2. The neutral flag covers enemy’s goods with the exception of

contraband of war.

“3. Neutral goods, with the exception of contraband of war, are not

liable to capture under the enemy’s flag.

“4. Blockades in order to be binding must be effective, that is to say,

maintained by a force sufficient really to prevent access to the coast

of the enemy.”

By its own terms the declaration of Paris, as these principles were

afterward known, was not to bind any country which did not accede to

its terms. The fourth point was already a well-settled principle of

international law. The third was looked upon as having almost the force

of a maxim of law. The proposition that a neutral flag protects goods

of an enemy save contraband of war was one over which there had been

much controversy. The employment of privateers had always been regarded

as a right which every nation possessed. The United States had never

become a party to this declaration, judging it not to be expedient to

relinquish the right of using privateers. To do this would have placed

the United States at a great disadvantage in a contest with a nation

like England which possessed a greatly superior navy. Privateers are a

most effective weapon against the commerce of a powerful enemy.

A large navy might easily hold the small navy of an enemy in check,

destroy his commerce, and blockade his ports, all at the same time. A

small navy aided by many privateers to prey on the commerce of an enemy

can easily engage the attention of a very large navy.

The United States had offered to accept the declaration of Paris on

condition that it be so amended as to exempt all private property

from capture at sea by the public armed ships of an enemy, as well as

by privateers. This proposition was refused. If it had been accepted

future naval operations would have been limited strictly to the public

armed ships of belligerents.[1]

Sir Henry Sumner Maine, a noted English authority on international

law, after considering the amount of injury that might be done to his

country in case her food supply should be cut off in time of war by

the numerous and active privateers of an enemy, says: “It seems, then,

that the proposal of the American government to give up privateers, on

condition of exempting all private property from capture, might well

be made by some very strong friend of Great Britain. If universally

adopted, it would save our food, and it would save the commodities

which are the price of our food, from their most formidable enemies,

and would disarm the most formidable class of those enemies.”[2]

Only five days after the neutrality proclamation was issued, Lord

Russell addressed a communication to Lord Lyons at Washington asking

the latter to take such steps as he might deem necessary in order to

secure the assent of the Confederate government to the last three

articles of the declaration of Paris.

On July 5, 1861, Lord Lyons addressed a communication to Robert

Bunch, the British consul at Charleston, in which he said: “The

course of events having invested the states assuming the title of the

Confederate States of America with the character of belligerents, it

has become necessary for her majesty’s government to obtain from the

existing government in those states securities concerning the proper

treatment of neutrals. I am authorized by Lord John Russell to confide

the negotiation of this matter to you and I have great satisfaction

in doing so. In order to make you acquainted with the views of her

majesty’s government, I transmit to you a duplicate of a dispatch to

me in which they are fully stated. It is essential, under present

circumstances, that you should act with great caution, in order to

avoid raising the question of the recognition of the new confederacy by

Great Britain. On this account I think it inadvisable that you should

go to Richmond or place yourself in direct communication with the

central authority which is established there.

“The most convenient course will probably be for you to take advantage

of the intercourse which you naturally hold with Mr. Pickens, the

governor of the state of South Carolina. I can not doubt that if you

explain verbally to Mr. Pickens the views of her majesty’s government,

he will have no difficulty in inducing the government at Richmond to

recognize, by an official act, the rights secured to neutrals by the

second and third articles of the declaration of Paris, and to admit its

own responsibility for the acts of privateers sailing under its letters

of marque.”

Consul Bunch was unable to see Governor Pickens, who was at that time

in the interior of the state looking after his plantation. Mr. Bunch,

however, immediately secured the services of an agent in the person

of a Mr. Trescot who was very well known to Lord Lyons. Mr. Trescot

went at once to Richmond and laid the matter before Jefferson Davis,

president of the Confederate States. Mr. Davis expressed regret that

the application had not been made in a more formal manner, but he at

once called a cabinet meeting for consideration of the matter, after

which it was immediately submitted to the Confederate congress. Without

delay that body passed the following resolutions:

“_Resolved_, By the congress of the Confederate States of America:

“1st. That we maintain the right of privateering as it has been long

established by the practice, and recognized by the law of nations.

“2d. That the neutral flag covers enemy’s goods with the exception of

contraband of war.

“3d. That neutral goods, with the exception of contraband of war, are

not liable to capture under the enemy’s flag.

“4th. Blockades in order to be binding must be effective, that is to

say, maintained by a force sufficient really to prevent access to the

coast of the enemy.”

These resolutions were approved August 13, 1861, and returned at

once by Mr. Trescot to Consul Bunch who forwarded a copy of them to

Lord Lyons at Washington. His lordship was greatly pleased at Mr.

Bunch’s success in this undertaking, and so expressed himself in a

communication enclosing a copy of the resolutions and dispatch of the

consul to Lord John Russell.

When this matter was brought to the attention of Mr. Seward, he at once

demanded the removal of Mr. Bunch. This was peremptorily refused by

Lord Russell who replied that “Mr. Bunch was instructed” to conduct the

negotiation with the Confederate States, and that “Mr. Bunch therefore,

in what he has done in this matter, has acted in obedience to the

instructions of his government, who accept the responsibility of his

proceedings so far as they are known to the foreign department, and who

can not remove him from his office for having obeyed instructions.”

Mr. Bunch’s _exequatur_ was then formally revoked by President Lincoln.

Mr. Bunch’s act was a violation of a federal statute which made it an

offense for any person not appointed or authorized by the president,

to advise or assist in any political correspondence with a foreign

government for the purpose of influencing its measures in relation to

the United States.[3]

It has been affirmed by an able British writer that this was an

“unofficial application made to the Confederate States” since the

“channel of communication was a private person.”[4] This position

is not tenable, because every communication was strictly official

in character, and the mere means of conveying them could not change

the character of the communications themselves. The fact that the

British government assumed the responsibility for the act is of itself

sufficient to establish its official character. The whole proceeding

was an official invitation to the Confederacy to exercise those powers

which belong only to a sovereign state, to do that which only an

independent government can do, namely, to accept and become a party to

an international agreement that differed in no sense from a treaty.

While this negotiation was being conducted with the Confederate

government, another of similar purport was in progress with the United

States government, which was not only willing but anxious to accept

the declaration of Paris as a whole. At this point in the proceedings

the British government refused to permit the United States to accept

the Paris declaration pure and simple, except with the distinct

understanding that England was not to interfere in any way whatever

with privateering on the part of the Confederate States. What was

equivalent to a treaty had been concluded between England and the

Confederates, by which the latter were to be allowed the use of

privateers.

In explanation of this matter Mr. Blaine says: “The right of

privateering was not left untouched except with deep design. By

securing the assent of the Confederacy to the other three articles of

the Paris convention, safety was assured to British and French cargoes

under the American flag, while every American cargo was at risk

unless protected by a foreign flag--generally the flag of England. It

would have been impossible to invent a process more gainful to British

commerce, and more harmful to American commerce.”[5]

AUTHORITIES AND REFERENCES.

1. Bernard, Montague: The Neutrality of Great Britain During the

American Civil War.

2. Blaine, James G.: Twenty Years of Congress.

3. Diplomatic correspondence with Great Britain, 1861.

4. Maine, Sir Henry Sumner: International Law.

5. Senate Ex. Documents: 2d Session 37th Congress, Vol. I, and 3d

Session 37th Congress, Vol. I.

FOOTNOTES:

[1] See discussion by Hon. W. L. Marcy, U. S. secretary of state, Ex.

Doc., 3d Session 24th Cong., Vol. I, part I, pp. 33-34.

[2] Maine’s International Law, pp. 121-122.

[3] See Mr. Seward’s letter to Mr. Adams, October 25, 1861.

[4] Bernard’s Neutrality of Great Britain, p. 191.

[5] Twenty Years of Congress, Vol. I, p. 579.

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