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.