Chap. VII. enemy in port and drive him from the sea. Did not the Government of the United States claim these rights? Did it not exert them-freely, largely, even rigorously? Were they of no advantage to it? Did it ever propose to forego them? There is a lurking idea, I think, in the minds of some Americans, that two parties are not necessary to a war, and that they ought to have been suffered to act as belligerents while refusing to the European Power the right to be neutral. But the difficulty of giving an air of reasonableness to the idea has prevented it from being plainly expressed. For myself I have never been able to understand how the American Government could seriously insist on a grievance which its own publicists are almost unanimous in disclaiming, and which is indeed the most groundless and unsubstantial that one nation ever alleged against another.1 I am unable to comprehend how it could be premature to provide for a state of circumstances which was actually existing at the time, or precipitate to announce in May a conclusion on which the President himself had begun to act in April; how it can be deliberately maintained by any one that such chimerical hopes as the Confederates may possibly have built, for the moment, on the Queen's Proclamation exercised any material influence on the fortunes of the war; or how, if that were granted, the British Government could be held justly answerable for the chimeras raised in sanguine imaginations by an act which was itself lawful and reasonable. So unsubstantial, indeed, is this complaint, that we see it in the 1 See Lawrence, Commentaire sur les Eléments du Droit International, &c., vol, i, p. 185.—“ Les déclarations de neutralité faites par la France et la Grande Bretagne en Mai et en Juin 1861, et qui furent suivies par celles d'autres puissances, ne sont donc que les corollaires des actes du Gouvernement Américain. Celui-ci a été en effet le premier à établir les droits de guerre dans les Etats séparés." See also Woolsey, On the Alabama Claims, 1869, and an article in the American Law Review, October 1869, p. 36. American despatches continually shifting its position, Chap. VII. changing its shape, and eluding the grasp of argument by studied subtleties of expression. Sometimes the assumption of neutrality in this contest is a " wrongful and injurious" act; sometimes it is only "unfriendly in its operation," or " suggests the suspicion of an unfriendly motive," or is "a sign of a purpose of unfriendliness;" again it re-appears as a wrong, and as the foundation of a specific claim for damages, and finally becomes nothing less than "a virtual act of war." We are sometimes told that the issue is not whether at the date of the Proclamation there was a war between the Union and the revolted States or no: we ask, What then is the issue ?-and are presented with an argument to prove that the contest was not a war, but a mere insurrection; that though the President himself treated it as a war, and assumed to exercise belligerent rights, he did not do this "expressly or in form," and might, had he thought fit, have abstained from exercising them.1 1 "The Supreme Court of the United States and that of the District of Columbia, in their opinions did not pretend, admit, or imply, that the President's aforesaid Proclamation, expressly and in form declared or recognized a state of civil war. : The Courts reached their conclusion that a state of civil war was existing at the time of the mari- "With due respect I must demur to this statement. The disturbance being, at the time referred to, officially and legally held by the Government of the United States to be a local insurrection, this Government had a right to close the the ports in the States within the scene of the insurrection, by municipal law, and to forbid strangers from all intercourse therewith, and to use the armed and naval forces for that purpose. A blockade was legitimately declared to that end; and, until the state of civil war should actually have developed, the existence of a blockade Chap. VII. The President need not have instituted a blockade: foreign nations, therefore, were bound to act as if he had not instituted one. It is impossible to speak respectfully, or even seriously, of an argument conducted in this fashion. It is unworthy of a manly and honest reasoner; it is strangely unsuited to the Government of a great people. would have conferred no belligerent rights upon the insurgents. In choosing the blockade as a form of remedy less oppressive than the closing of the ports by statute, the United States might perhaps have come under an obligation to respect any just rights and interests of aliens which might have been infringed. There was, however, no just ground of apprehension on that subject, for the history of the time shows that those rights were in all cases inviolately respected."-Mr. Seward to Lord Stanley, 14th January, 1867. CHAPTER VIII. Negotiations respecting International Maritime Law, and the Declaration of Paris, 1856.-Conventions Proposed by the Government of the United States to Great Britain and France.-Failure of the Negotiations. Informal Communications with the Confederate States on the same Subject. THE negotiation which forms the subject of this chapter proved abortive, and has not an important place in the history of the war. It has, however, a place in that history, and cannot, therefore, be left unnoticed. The circumstances which led to it may be briefly stated. The Declaration on Maritime Law, signed at the close of the Conferences of Paris in 1856, had received the assent of by far the larger number of civilized nations. Of the propositions embraced in it,' the fourth was already a settled maxim of public law, and the third had nearly reached the same stage; but the rule that enemy's goods are protected by the neutral flag had been a subject of long controversy, whilst the employment of privateers had always been regarded as optional, though open to many objections. The United States had 1 "1. Privateering is and remains abolished. "2. The neutral flag covers enemy's goods, with the exception of contraband of war. "3. Neutral merchandize, except contraband of war, is not liable to seizure under the flag of an enemy. "4. Blockades to be binding must be effective, that is to say, maintained by a force sufficient really to prohibit (interdire réellement) access to the coast of the enemy." Chap. VIII, refused to become a party to it, judging that it was not for their interest to relinquish the liberty of using privateers, unless upon condition that all private property at sea, not contraband, should be declared exempt from capture. This condition had been embodied in a counter-proposal, which, from having been brought forward by Mr. Marcy, when Secretary of State, had become known as Mr. Marcy's Amendment. The counter-proposal, however, had been withdrawn, in April 1857, by Mr. Buchanan's Administration, which was understood to be unwilling to give up, even on these terms, the right of resorting to the issue of letters of marque. The British and French Governments, at the beginning of the war, were desirous of ascertaining whether the principles of the Declaration would, if not formally accepted, be at any rate respected in practice by the two belligerents. It was with this view that Lord Lyons and M. Mercier, on the 15th June, waited on Mr. Seward and proposed to read to him despatches which they had received from their respective Governments. Mr. Seward, as we have already seen,1 refused to receive any communication which assumed that the revolted States were to be regarded as belligerents by foreign Powers, but said that, as to what the two Governments practically asked, "he was ready to agree to all, and more than all that was desired. The United States had always held, and held still, that the flag covered the cargo, and that the property of a friend was not liable to seizure under an enemy's flag. The Government admitted fully that it would be responsible for the acts of any privateer to whom it should issue letters of marque. He regarded these principles to be quite as applicable to measures of coercion adopted against rebels as to the operations of a regular war. 1 Page 159. 2 Lord Lyons to Lord J. Russell, 17th June, 1861. |