20. Nov. 1862. No. 657. a Commission provided for by that Treaty, to award the necessary sums for full Vereinigte Staaten, compensation. I am well aware that the provisions of that Treaty are no longer in force, and that even if they were, they bound only the United States to make good the damage done in the precise contingency then occurring. But I cannot for a moment permit myself to suppose that Her Majesty's Government, by the very act of pressing for the recognition of the principle in a Treaty when it applied for its own benefit, did not mean to be understood as equally ready to sustain it at any and all times when it might be justly applied to the omission to prevent similar action of British subjects within its own jurisdiction towards the people of the United States. But I would beg further to call your Lordship's attention to the circumstance that there is the strongest reason to believe that the claim for compensation in cases of this kind was not pressed by Her Majesty's Government merely in connection with the obtaining a formal recognition of the principle in an express contract. This seems to have been but a later step, and one growing out of a previous advance of a similar demand based only on general principles of equity that should prevail at all times between nations. Here again it appears that the Government of the United States, having admitted a failure down to a certain date in taking efficient steps to prevent the outfit in their ports of cruizers against the vessels of Great Britain, with whom they were at peace, recognized the validity of the claim advanced by Mr. Hammond, Her Majesty's Minister Plenipotentiary at Philadelphia, for captures of British vessels subsequently made by those cruizers even on the high seas. This principle will be found acknowledged in its full length in the reply of Mr. Jefferson, then Secretary of State of the United States, dated 5th of September, 1793, to a letter from Mr. Hammond of the 30th of August preceding, a copy of which is unfortunately not in my possession; but which, from the tenor of the answer, I must presume to have itself distinctly presented the admitted ground of the claim. Armed by the authority of such a precedent, having done all in my power to apprise Her Majesty's Government of the illegal enterprise in ample season for effecting its prevention; and being now enabled to show the injurious consequences to innocent parties relying upon the security of their commerce from any danger through British sources, ensuing from the omission of Her Majesty's Government, however little designed, to apply the proper prevention in due season, I have the honour to inform your Lordship of the directions which I have received from my Government to solicit redress for the national and private injuries already thus sustained, as well as a more effective prevention of any repetition of such lawless and injurious proceedings in Her Majesty's ports hereafter. I pray, &c. To Earl Russell. Charles Francis Adams. GROSSBRITANNIEN. No. 658. Min. d. Ausw. an d. Gesandt. der Vereinigten Staaten in London. Ablehnung der Entschädigungsforderung der Regierung der Vereinigten Staaten. Foreign Office, December 19, 1862. Gross 19. Dec. 1862. Sir, I have the honour to acknowledge the receipt of your letter of No. 658. the 20th ultimo, in which, under instructions from your Government, you submit, britannien, for the consideration of Her Majesty's Government, papers confirming the truth of the allegations which you made to me some time ago as to the intentions with which the vessel formerly known as „No. 290," but now called the „Alabama," was fitted out at Liverpool; and you observe that those allegations are now fully proved by the hostile proceedings of that vessel since she left the United Kingdom. You pass in review the history of the ,,Alabama“ both before and since she sailed from Liverpool; and you state that the facts being admitted, they present to the consideration of all civilized countries a series of novel questions of the gravest character. You say that it is obviously impossible to reconcile the toleration by any one nation of similar undertakings in its own ports to the injury of another nation with which it is at peace, with any known theory of moral or political obligation; and you add, with some further observations in the same sense, that the reciprocation of such practices could only in the end lead to the utter subversion of all security to private property upon the ocean. ¶ You, however, say that it is by no means your desire to imply an intention on the part of Her Majesty's Government to countenance any such idea. You admit that you are aware of the measures adopted at a very early date with reference to the „Alabama," and of the orders subsequently issued to detain that vessel as soon as legal opinions were obtained; orders which it was not possible for the authorities to execute, because at the very moment when they were issued the "Alabama" made her escape from Liverpool. You finally state that you have been instructed to solicit redress for the national and private injuries sustained by the proceedings of this vessel, as well as a more effective prevention of any repetition of them in British ports hereafter. Before I proceed to examine the justice of these demands, it will be convenient that I should advert to the circumstances to which you call my attention as having occurred soon after the breaking out of the French revolutionary war. You observe that on that occasion remonstrances were addressed by the British Government to that of the United States respecting the fitting out of privateers in United States' ports with an intent to prey upon British commerce; and that the demands of the British Government were admitted by the United States, and were formally recognized in the VIIth Article of the Treaty between the two countries of the 19th of November, 1794. ¶ But an examination of the actual occurrences, and of the history of that remarkable period, presents a state of facts materially different from those relating to the „Alabama." Those facts may be shortly stated as follows: The revolutionary Government of France Gross 19. Dec. No. 658. had openly avowed its determination to disregard all the principles of interbritannien, national law which had been acknowledged by civilized States: and that Govern1862. ment proceeded to put in force its determination by claiming to equip as a matter of right, and by actually equipping, privateers in the neutral ports of the United States, by sending those privateers forth from those ports to prey upon British commerce by bringing prizes into the neutral ports, and by then going through some scant forms of adjudication. This was the avowed system upon which the Agents of belligerent France claimed to act, and upon which, owing to the temporary superiority of her naval force, they did for a short period act in the neutral ports and waters of the United States, notwithstanding the remonstrances of the United States' Government. It was these several facts, namely, the open and deliberate equipment of privateers in American ports by the French, the capture by those privateers of British vessels in United States' waters, and the bringing them as prizes into United States' ports, which formed collectively the basis of the demands made by the British Plenipotentiaries. Those demands had reference not to the accidental evasion of a municipal 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. This is apparent from the whole correspondence of the British Government with the Government of the United States, and from the replies of Mr. Jefferson to Mr. Hammond the British Minister. Consequently neither the complaints of the British Government in 1793, nor the Treaty of 1794, have any bearing upon the question now under discussion. With regard to the claim for compensation now put forward by the United States' Government, it is, I regret to say, notorious that the Queen's Proclamation of the 13th of May, 1861, enjoining neutrality in the unfortunate civil contest in North America, has in several instances been practically set at nought by parties in this country. On the one hand, vast supplies of arms and warlike stores have been purchased in this country, and have been shipped from British ports to New York, for the use of the United States' Government. On the other hand, munitions of war have found their way from this country to ports in possession of the Government of the so-styled Confederate States. These evasions of the neutrality prescribed by the Queen's Proclamation have caused Her Majesty's Government much concern, but it is not difficult to account for what has occurred. Such shipments as I have spoken of may be effected without any breach of municipal law, and commercial enterprise in this country, as elsewhere, is always ready to embark in speculations offering a prospect of success, or in which, at all events, the promise of gain is supposed to be greater than the risk of loss. British subjects who have engaged in such enterprises have been left by Her Majesty's Government to abide by the penalty attaching to their disregard of the Queen's Proclamation of Neutrality, that penalty being by international law the condemnation as prize of war of vessel and cargo, if captured by a belligerent cruizer, and duly condemned in a competent Prize Court. Her Majesty's Government have nevertheless availed themselves of every fitting opportunity to discourage these enterprises, and I have the honour to refer you, in illustration of the truth of this, to the Gross 19. Dec. 1862. answer which I caused to be returned on the 6th of July to a memorial from No 658. British merchants and shipowners at Liverpool, and of which I furnished you britannien, confidentially with a copy in my note of the 4th of August. It is right, however, to observe, that the party which has profited by far the most by these unjustifiable practices has been the Government of the United States, because that Government having a superiority of force by sea, and having blockaded most of the Confederate ports, has been able, on the one hand, safely to receive all the warlike supplies which it has induced British manufacturers and merchants to send to United States' ports in violation of the Queen's Proclamation, and, on the other hand, to intercept and capture a great part of the supplies of the same kind which were destined from this country to the Confederate States. If it be sought to make Her Majesty's Government responsible to that of the United States, because arms and munitions of war have left this country on account of the Confederate Government, that Confederate Government, as the other belligerent, may very well maintain that it has a just cause of complaint against the British Government, because the United States' arsenals had been replenished from British sources. ¶ Nor would it be possible to deny that, in defiance of the Queen's Proclamation, many subjects of Her Majesty, owing allegiance to her Crown, have enlisted in the armies of the United States. Of this fact you cannot be ignorant. Her Majesty's Government, therefore, have just grounds of complaint against both of the belligerent parties, but most especially against the Government of the United States, for having systematically, and in disregard of that comity of nations which it was their duty to observe, induced subjects of Her Majesty to violate those orders which, in conformity with her neutral position, she has enjoined all her subjects to obey. ¶ Great Britain cannot be held responsible to either party for these irregular proceedings of British subjects, and an endeavour to make her so would be about as reasonable as if Her Majesty's Government were to demand compensation from the United States for the injuries done to the property of British subjects by the „Alabama," resting their demand on the ground that the United States claim authority and jurisdiction over the Confederate States, by whom that vessel was commissioned. ¶ So far as relates to the export of arms and munitions of war by subjects of Great Britain from British ports, for the use of the Confederates, it is a sufficient answer to say that the municipal law of this country does not empower Her Majesty's Government to prohibit or interfere with such export, except in extraordinary cases, when the Executive is armed with special powers; and, with regard to the Law of Nations, it is clear that the permission to export such articles is not contrary to that law, and that it affords no just ground of complaint to a belligerent. The authorities for this latter position are numerous and unconflicting, but it may suffice to refer to passages on the subject in the works of two American writers of high and admitted authority. The passages are as follows: 99 1. 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 Gross 19. Dec. 1862. 99 No. 658. and penalties prescribed by the Law of Nations or particular Treaties." britannien, (Wheaton's „International Law," sixth edition, 1855, page 571, by Lawrence.) 2. 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 purchaser, or carry, themselves, to the belligerent Powers, contraband articles, subject to the right of seizure in transitu. This right has since been explicitly declared by the judicial authorities of this country (United States). The right of the neutral to transport, and of the conflicting rights, and neither party can charge the (Kent's ,,Commentaries," vol. I., p. 145, eighth hostile Power to seize, are In accordance with these principles, the President's Message of 31st December, 1855, contains the following passage: „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, or 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 national neutrality, nor of themselves implicate the Government." As regards the sailing of the „Alabama" from Liverpool, I cannot do better than refer you to the circumstances respecting that vessel with which I have already had the honour to make you acquainted. In my letter of the 28th of July I informed you that it was requisite to consult the Law Officers of the Crown before any active steps could be taken in regard to that vessel. In my letter of the 22nd of September I explained that from the nature of the case some time was necessarily spent in procuring the requisite evidence; that the Report of the Law Officers was not received until the 29th of July; and that on the same day a telegraphic message reached Her Majesty's Government stating that the vessel had that morning sailed. Instructions were then dispatched to detain her should she put in either at Queenstown or Nassau, to one or other of which ports it was expected that she would go, but the „Alabama" did not call at either of those places. On the 4th of October, I stated to you that much as Her Majesty's Government desired to prevent such occurrences, they were unable to go beyond the law, municipal and international; and on the 16th of that month I replied to your observations with reference to the infringement of the Foreign Enlistment Act, by remarking that it was true that the Foreign Enlistment Act, or any other Act for the same purpose, might be evaded by subtle contrivances, but that Her Majesty's Government could not on that account go beyond the letter of the existing law. ¶ However, it is needless that I should pursue this branch of the question further, since you admit that you are aware that the,,Alabama" sailed not only |