The systematic op erations of the inof the duties of a surgents a violation neutral. It may not always be easy to determine what is and what is not lawful commerce in arms and munitions of war; but the United States conceive that there can be no doubt on which side of the line to place the insurgent operations on British territory. If Huse had been removed from Liverpool, Heyliger from Nassau, and Walker from Bermuda; or if Fraser, Trenholm & Co. had ceased to sell insurgent cotton and to convert it into money for the use of Huse, Heyliger, and Walker, the armies of the insurgents must have succumbed. The systematic operations of these persons, carried on openly and under the avowed protection of the British Goveenment, made of British territory the "arsenal" of which Mr. Fish complained in his note of September 25, 1869.1 Such conduct was, to say the least, wanting in the essentials of good neighborhood and should be frowned upon by all who desire to so establish the principles of International Law, as to secure the peace of the world, while protecting the independence of nations. It is in vain to say that both parties could have done the same [312] thing. The United States were under no such necessity. If they could not manufacture at home all the supplies they needed, they were enabled to make their purchases abroad openly, and to transport them in the ordinary course of commerce. It was the insurgents who, unable to manufacture at home, were driven to England for their entire military supplies, and who, finding it impossible to transport those supplies in the ordinary course of commerce, originated a commerce for the purpose, and covered it under the British flag to Bermuda and Nassau. Under the pressure of the naval power of the United States, their necessities compelled them to transport to England a part of the execu tive of their Government, and to carry on its operation in Great Britain. They were protected in doing this by Her Majesty's Government, although its attention was called to the injustice thereof.2 This conduct deprived the United States of the benefit of their superiority at sea, and to that extent British neutrality was partial and insincere. The United States confidently submit to the Tribunal of Arbitration that it is an abuse of a sound principle to extend to such combined transactions as those of Huse, Heyliger, Walker, and Fraser, Trenholm & Co., the well-settled right of a neutral to manufacture and *sell [313] to either belligerent, during a war, arms, munitions, and military supplies. To sanction such an extension will be to lay the foundation for international misunderstanding and probable war, whenever a weaker party hereafter may draw upon the resources of a strong neutral, in its efforts to make its strength equal to that of its antagonist. From the Queen's Proclamation of neutrality to the close of the struggle, Great Britain framed its rules, construed its laws ity for the insur- and its instructions, and governed its conduct in the interest of the insurgents. What could tend more to inspirit them than the news that on the eve of Mr. Adams's arrival in London, as if to show in the most public manner a purpose to overlook him, and to disregard the views which he might have been instructed by his Government to present, it had been determined to recognize their right to display on the ocean a flag which had not then a ship to carry it? How they must have welcomed the parliamentary news, on the heels of this proclamation, that the effect of this recognition would be to employ British subjects in warring upon the commerce of the United Continuing partial gents. ་ 3 States, with a protection against piracy promised in advance! How great must have been their joy, when they found British laws construed so as to confer upon them the right to use the workshops [314] *anddock-yards of Liverpool, for building ships which, without violating the municipal law of England, might leave British ports in such warlike state that they could be fitted for battle in twentyfour hours! How they must have been cheered by the official legalization of the operations of those who had been sent to Liverpool in anticipation of the proclamation; to be in readiness to act! And if these welcome sights inspirited and cheered the insurgents, as was doubtless the case, how relatively depressing must have been their effect upon the loyal people and upon the Government of the United States! The correspondence of Mr. Seward and of Mr. Adams, running through the whole of the volumes of evidence accompanying this case, bears testimony to the depth of this feeling. When Great Britain carried into practice its theory of neutrality, it was equally insincere and partial. Recapitulation of hostile acts tolerated in British posses Its municipal laws for enforcing its obligations as a neu- hostile acts tral, under the law of nations, were confessedly inadequate, sions. and, during the struggle, were stripped of all their force by executive and judicial construction. Yet Great Britain refused to take any steps for their amendment, although requested so to do.1 [315] The Queen's Proclamation inhibited blockade-*running; yet the authorities encouraged it by enacting new laws or making new regulations which permitted the transshipment of goods contraband of war within the colonial ports; by officially informing the colonial officers that "British authorities ought not to take any steps adverse to merchant-vessels of the Confederate States, or to interfere with their free resort to British ports;" by giving official notice to the United States that it would not do to examine too closely, on the high seas, British vessels with contraband of war;3 and by regulations which operated to deter the United States vessels of war from entering the British ports from which the illicit trade was carried on. The Foreign Enlistment Act of 1819 forbade the employment of a British vessel as a transport; and yet vessels known to be owned by the insurgent authorities, and engaged in carrying munitions of war for them, were allowed to carry the British flag and were welcomed in British ports. Still further, the same vessel would appear one day as a blockade-runner, and another day as a man-of-war, receiving an equal welcome in each capacity. The instructions of January 31, 1862, forbade both belligerents alike to enter the port of Nassau except by permission of the governor, [316] or in stress *of weather. That permission was lavishly given to every insurgent cruiser, but was granted churlishly, if at all, to the vessels of the United States. 1 The same instructions forbade the granting to a steam man-of-war of either belligerent in British ports a supply of coal in excess of what would be necessary to take the vessel to the nearest port of its own country or some nearer destination. This rule was enforced upon the vessels of the United States, but was utterly disregarded as to the vessels of the insurgents. Those instructions also forbade the granting of any supply of coal to such a vessel if it had been coaled in a British port within three months. These facts throw acts of British offi gent cruisers. Yet in three notable instances this salutary rule was violated, that of the Nashville, at Bermuda, in February, 1862; the Florida, at Barbadoes, in February, 1863; and the Alabama, at Capetown, in March, 1864. These admitted facts were repeatedly, and in detail, brought to the notice of the British Government, and as repeatedly the suspicion upon the answer was given that there was no cause for interference. cials toward insur At length they were, as a system, brought to Lord Russell's attention, by Mr. Adams, with the threads of evidence, which furnished him with the proof of their truth. Yet he declined to act, saying that "this correspondence does not appear *to Her Majesty's Government to contain any sufficient evidence [317] of a system of action in direct hostility to the United States;" that it furnished no proof as to the building of iron-clads that "could form matter for a criminal prosecution ;" and that the other acts complained of were "not contrary to law." "not contrary to law." In other words, he declared that the only international offense of which Her Majesty's Government would take notice was the building of iron-clads; and that no steps would be taken, even against persons guilty of that violation of neutrality, until the officials of the United States would act the part of detectives, and secure the proof which a British court could hold competent to convict the offender of a violation of a local law. It is important, in considering the evidence which is about to be referred to, to bear in mind these constant demonstrations of partiality for the insurgents. They show a persistent absence of real neutrality, which, to say the least, should throw suspicion upon the acts of the British officials as to those vessels, and should incline the Tribunal to closely scrutinize their conduct. The United States, however, go further than this. They insist that Her Majesty's Government abandoned, in advance, abnegation of all dili- the exercise of that due diligence which the Treaty [318] acts complained of. of Washington declares that a neutral is bound to observe. They say that the position of Her Majesty's Government just cited, taken in connection with the construction put upon the Foreign Enlistment Act by the British courts in the Alexandra case, was a practical abandonment of all obligation to observe diligence in preventing the use of British territory by the insurgents, for purposes hostile to the United States. They aver that it was a notice to them that no complaints in this respect would be listened to, which were not accompanied by proof sufficient to convict the offender as a criminal under the Foreign Enlistment Act. To furnish such proof was simply impossible. The Tribunal will remember that it was judicially said in the case of the Alexandra, that what had been done in the Great Britain the matter of the Alabama was no violation of British law, and show that the acts therefore constituted no offense to be punished. Well not have been pre- might Earl Russell say that the Oreto and the Alabama were a scandal to English laws. They show an gence to prevent the They throw upon burden of proof to complained of could vented. * The United States with great confidence assert that the facts which have been established justify them in asking the Tribunal of Arbitration, in the investigations now about to be made, to assume that in the violations of neutrality which will be shown to have taken place, the burden of proof *will be upon Great Britain to establish that [319] they could not have been prevented. Her Majesty's Government declined to investigate charges and to examine evidence submitted by Mr. Adams, as to repeated violations of British territory, which subsequent events show were true in every respect. It placed its refusal "Earl Russell to Mr. Adams, Vol. I, page 578. upon principles which must inevitably lead to like disregard in futureprinciples which rendered nugatory thereafter any measure of diligence to discover violations of neutrality within Her Majesty's dominions. Thereby Great Britain assumed and justified all similar acts which had been or might be committed, and relieved the United States from the necessity of showing that due diligence was not exercised to prevent them. Of what use was it to exercise diligence to show the purpose for which the Florida, the Alabama, or the Georgia was constructed, or the Shenandoah was purchased, if the constructing, fitting out, or equipping, or the purchase for such objects was lawful, and could not be interfered with? What diligence could have prevented the excessive supplies of coal and other hospitalities to the insurgent cruisers, or the protection of transports, all of which made these ports bases of operations, if such acts were no violation of the duties of a neutral, of which the United States might justly complain? [320] *The cruisers for whose acts tlie United States ask this Tribunal to hold Great Britain responsible are (stating them List of the insur in the order in which their cruises began) the Sumter; the gent cruisers. Nashville; the Florida and her tenders, the Clarence, the Tacony, and the Archer; the Alabama and her tender, the Tuscaloosa; the Retribution; the Georgia; the Tallahassee; the Chickamauga; and the Shenandoal. The attention of the Tribunal of Arbitration is now invited to an account of each of these vessels. THE SUMTER. 1 The Sumter. The Sumter escaped from the passes of the Mississippi on the 30th of June, 1861, and on the 30th of the following July arrived at the British port of Trinidad. She remained there six days, taking in a supply of coal. Complaint being made of this act as a "violation of Her Majesty's Proclamation of Neutrality," Lord Russell replied, that "the conduct of the Governor was in conformity to Her Majesty's Proclamation;" that "Captain Hillyar, of Her Majesty's Ship Cadmus, having sent a boat to ascertain her nationality, the com manding officer showed a commission signed by Mr. Jefferson [321] Davis, calling himself the President of the so-styled Confederate States." Her Majesty's Government thus held this vessel to be a man-of-war as early as the 30th of July, 1861. Having got a full supply of coal and other necessary outfit, the Sumter sailed on the 5th of August, 1861, and, after a cruise in which she destroyed six vessels carrying the flag of the United States, she arrived in Gibraltar on the 18th of the following January. Before she could again be supplied with coal and leave that port, she was shut in by the arrival of the Tuscarora, a vessel of war of the United States, which "anchored off Algeciras." The Tuscarora was soon followed by the Kearsarge, both under the instructions of the Government of the United States. Finding it impossible to escape, an attempt was made to sell the Sumter, with her armament, for £4,000.5 The consul of the United 3 States at Gibraltar, by direction of Mr. Adams, protested against this sale.1 The sale was finally made "by public auction" on the 19th of December, 1862.2 Mr. Adams notified Earl Russell that the sale would not be recognized by the United States, and called upon Great Britain not to regard it, as it had been made in violation of principles of law that had been *adopted by British courts and publicists. He [322] maintained that "Her Majesty's Government, in furnishing shelter for so long a period to the Sumter in the harbor of Gibraltar, as a ship of war of a belligerent, had determined the character of the vessel;" and that "the purchase of ships of war belonging to enemies is held in the British courts to be invalid.” 7 .774 After reflecting upon this simple proposition for more than five weeks, Earl Russell denied it. He said, "The British Government, when neutral, is not bound to refuse to a British subject the right to acquire by purchase a vessel which a belligerent owner may desire to part with, but it would not deny the right of the adverse belligerent to ascertain, if such vessel were captured by its cruisers, whether the vessel had rightfully, according to the law of nations, come into the possession of the neutral." Mr. Adams also maintained that the sale was fictitious, to which Earl Russell replied that he "could not assume that the Sumter had not been legally and bona fide sold to a British owner for commercial and peaceful purposes." Mr. Adams insisted.(and the result proved that he was correct) that the sale of the Sumter was [323] fictitious, and that the purchaser was an agent of Fraser, Trenholm & Co., the treasury agents and depositaries, &c., for the insurgent authorities at Richmond. His representations were disregarded, and the vessel was taken to Liverpool and thoroughly repaired. She then took on board a cargo of arms and munitions of war, and, under the the name of the Gibraltar, fortified with a British register, became an insurgent transport.10 * In all these proceedings on the part of British officials the United States find a partiality toward the insurgents, which is inconsistent with the duties of a neutral: 1. The Sumter was permitted to receive at Trinidad a full supply of coal. The United States, however, were forbidden by Great Britain even to deposit coal in the British West Indies for their own use, under such regulations as might be prescribed by Her Majesty's Government. What took place at Nassau in December, 1861, has already been told. In Bermuda, on the 19th of February, 1862, their consul was officially informed that "the Government of Her Britannic Majesty *had determined not to allow the formation in any British colony [324] of a coal-depot for the use of their vessels of war, either by the Government of the United States or of the so-styled Confederate States." Sprague to Codrington, Vol. II, page 509. 2 Sprague to Adams, Vol. II, page 515. 9The nominal purchasers were M. G. Klingerder & Co., (Vol. II, page 529.) This house was connected with Fraser, Trenholm & Co., and paid regularly a portion of th wages of the men on the Alabama to their families in Liverpool. (See Dudley to Adams, Vol. III, page 210.) 10 Vol. II, pages 521-538. 11 Ord to Allen, Vol. II, page 590. See also the reports of the officers of the Keystone and the Quaker City, who, in December, 1861, were refused supplies of coal at this port. Vol. VI, pages 52 and 53. See also the case of the Florida, post, where this subject is more fully discussed. |