battle of Manassas Junction on the 21st. Can any one suppose that if the Proclamation had not been issued that battle would not have been fought ?

The charge of premature recognition on examination reduces itself to this, that the Proclamation ought not to have been issued until Mr. Adams arrived, or until some event called for it. Against

this is to be set the fact that the Proclamation was considered by some friends of the Northern States as a step taken in their interests, and that it was further pressed upon the Government by Mr. Dallas's communication of Mr. Seward's circular. Moreover, Confederate privateers were at sea, and British vessels being made prizes by the Federal blockading fleet.

Besides the assertion of the premature recognition of belligerent rights, the despatch states that maritime enterprises in the ports of Great Britain, which would otherwise have been piratical, were, "by virtue of the Proclamation," rendered lawful," and thus Great Britain became, and to the end continued to be, the arsenal, the navy-yard, and the treasury of the insurgent Confederacy."

66

an

Mr. Fish, in a preceding passage, admits that national belligerency is existing fact," and he might have added that it exists independently of any official proclamation of neutral Powers, as is shown by the records of the American Prize Courts, which continually recog nize the belligerency of the South American States; although, as Mr. Seward stated in one of his despatches, the United States have never issued a Proclamation of Neutrality except in the case of France and England in 1793. This was proved in the civil war by the reception at Curaçoa of the Confederate vessel" Sumter " as a belligerent cruiser, though the Netherlands had issued no Proclamation of Neutrality. It was this recognition of the "Sumter," after her departure from New Orleans (July 6, 1661), at Curaçoa, and at Cienfuegos, which first practically accorded maritime belligerent rights to the Confederates, a fact which is overlooked when it is alleged that Confederate "belligerency, so far as it was maritime," proceeded "from the ports of Great Britain and her dependencies alone."

Indeed, it is not going too far to say that the Confederates derived no direct benefit from the Proclamation. Their belligerency depended upon the fact (a fact which, when we are told that the civil war left behind it two millions and a half of dead and maimed, is, unfortunately, indisputable) that they were

waging civil war. If there had been no Proclamation, the fact would have remained the same, and belligerency would have had to be recognized either on behalf of the Northern States, by admitting the validity of captures on the high seas for the carriage of contraband or breach of blockade, or on the arrival of the "Sumter," or some similar vessel, in a British port.

In no case can it be really supposed that the recognition of belligerency, which, unless neutral nations abandoned their neutrality and took an active part in the contest, was inevitable, materially influenced the fortunes of such a fearful and protracted civil war.

What

At all events, if it did, the Confederates never acknowledged it; the recognition of belligerency they regarded (as indeed was the case) as a right which could not be denied to them. they sought was not the mere technical title of "belligerents," but a recognition of independence; and when they found that it was hopeless to expect England to accord it, they cut off all intercourse with this country, expelled Her Majesty's Consuls from their towns, and did every thing in their power to show the sense which they entertained of the injury which they believed had been inflicted upon them. The result being that while one side has blamed us for doing too much, the other side has blamed us for doing too little, and thus an assumption of neutrality has been regarded both by North and South as an attitude of hostility.

As to the Queen's Proclamation rendering lawful the despatch of the "Alabama," "Shenandoah," and " Georgia' from British ports, to which it is to be presumed the expression "maritime enterprises" refers, it is to be remarked that it is exactly against such enterprises that the Proclamation reciting the terms of the Foreign Enlistment Act was intended to warn British subjects. Instead of rendering them lawful it rendered them additionally unlawful, by giving notice of their illegality.

There would be no difficulty in showing by precedents from American Prize Courts that no proclamation of neutrality is required to confer belligerent rights on vessels commissioned by a de facto Government.

It is admitted that at the time these "enterprises" were undertaken "hostilities" in America were being prosecuted "on a scale of gigantic magnitude." After, therefore, the "Alabama" escaped, on the 29th of July, 1862, she became, by virtue of her Confederate

commission, undoubtedly a belligerent cruiser, irrespective of any acknowledgment of belligerency by Great Britain, and was received accordingly by the French authorities at Martinique, where she first touched after leaving Liverpool.

A pirate is hostis humani generis, one owing obedience to no authority. If the "Alabama" had been really a pirate depredating on American commerce, it would have been the duty of the French to seize her and execute justice on her commander and crew, a pirate being triable wheresoever found.

Judge Nelson, in the case of the Confederate privateer "Savannah," ruled that though Confederate privateers were pirates quoad American jurisdiction, they were not pirates jure gentium, and, in the case of the "Golden Rocket," in which the owner brought an action in an American Court against an insurance company for the capture of his ship by the "Florida," he being insured against piracy but not against war risk, it was decided that captures by Confederate cruisers were not piracy" within the usual meaning of the word, and that the company was not liable.

"

The American Courts having thus conclusively dealt with the matter it is unnecessary to pursue the subject further. What is probably meant is, that if the Confederates had not possessed a de facto Government, and had not been belligerents in the sense of waging public war, vessels under their Commission would have been mere roving adventurers, pursuing merchantmen for the sake of private plunder-in short, pirates; but by the admission that "hostilities" (the very word to which exception is taken in the Neutrality Proclamation) were being prosecuted on a great scale, the only ground on which such a supposition could rest is cut away.

II. THE DESPATCH OF CONFEDERATE CRUISERS FROM BRITISH PORTS.

Any one who read the despatch without any previous knowledge of the subject might suppose from the language used that fleets of privateers had been despatched from British ports with the connivance, if not the direct support, of Her Majesty's Government :—

"Great Britain. . . . permitted armed cruisers to be fitted out," &c.

"The Queen's Government suffered ship after ship to be constructed in its ports to wage war on the United States."

"Permission or negligence which enabled Confederate cruisers from her ports to prey," &c.

"Great Britain alone had founded on that recognition a systematic maritime war." "A virtual act of war." "Suffering the fitting out of rebel cruisers."

The fact being that only one vessel, of whose probable intended belligerent character the British Government had any evidence, escaped-viz. the "Alabama."

The "Shenandoah" was a merchant ship employed in the India trade under the name of the "Sea King." Her conversion into a Confederate cruiser was not heard of until more than a month after she had left England.

The Georgia," or Japan," was actually reported by the Board of Trade surveyor, who had no idea of her destination, to be built as a merchant ship, and to be rather crank. Nothing was known of her proceedings until she had taken her arms and crew on board in Morlaix Bay, and reached Cherbourg. Her real point of departure, as a cruiser, was France, and not England.

The "Florida" was detained at Nassau on suspicion, but discharged by the local Admiralty Court, there being no evidence of her being any thing but a blockade-runner. She was fitted out as a ship-of-war at Mobile.

On the other hand, the British Government prevented the outfit of the "Rappahannock," prosecuted and detained the "Alexandra," seized the "Liverpool" rams, and stopped the "Pampero," besides investigating carefully every case of suspected outfit brought forward by Mr. Adams, and he complained of nineteen, as well as every case which could be discovered independently. Among other things, taking charge of Captain Osborn's Anglo-Chinese flotilla, which, it was apprehended, might fall into the hands of the Confederates, at a cost to this country of 100,0001.

That any sea-going steamer can be converted into a cruiser by strengthening her bulkheads and arming her, which can be done at sea as well as on shore, is proved by the fact that the most efficient blockading vessels in the Federal navy were converted blockade

runners.

The" Alabama."-Mr. Fish speaks of the neglect of the officers of the British Government to detain Confederate cruisers, and especially the "Alabama."

There was no neglect to detain the "Shenandoah" or "Georgia," for the reason that neither the Government nor

its officers knew they were being intended for the Confederate service. Indeed, it has never been proved that the persons who sold those vessels knew it. Probably they did, but a case might very readily arise in which the vendors might be really ignorant. The Ameri

can Government could not have expected the English revenue officers to prevent every large steamer leaving England in ballast.

With regard to the " Alabama," it is assumed "that the negligence of the officers of the British Government was gross and inexcusable, and such as indisputably to devolve on that Government full responsibility for all the depredations committed by her. Indeed, this conclusion seems in effect to be conceded in Great Britain. At all events, the United States conceive that the proofs of responsible negligence in this matter are so clear that no room remains for debate on that point; and it should be taken for granted in all future negotiations with Great Britain."

By a petitio principii, the whole argument is thus assumed to be in favour of the United States.

There is no doubt that the "Alabama" might, if she had not escaped at the moment when the case against her appeared to be legally established, have been seized and tried under the Foreign Enlistment Act, though the result, looking to what occurred in the case of the "Alexandra," might have been doubtful.

This, however, is a very different thing from admitting that her sale to the Confederates was a violation of British neutrality for which the nation is responsible. This was the first instance which occurred of the sale of a ship under such circumstances, and the British Government had, in fact, no suspicion of what was going to be done in the matter, no information having been received of an intention to take out her arms and crew in a separate vessel.

Judge Story, in the well-known case, "Santissima Trinidad and St. Ander," laid it down as indisputable that "there is nothing in our laws, or in the laws of nations, that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial venture, which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation."

But it must be remembered that when Mr. Fish claims compensation for all her depredations, he should not overlook the fact of the negligence shown by the Federal navy in twice letting

her escape from them:-first, when Mr. Adams urged the captain of the Federal ship, which at his instance had gone to Holyhead to look after her, to pursue her, when the captain refused, and went off to his station at Gibraltar insteada proceeding at which Mr. Adams expressed the greatest indignation (see

Congress Papers, 1862," p. 159); and, secondly, when the United States' ship "San Jacinto" blockaded her in the French port of St. Pierre, Martinique, and then suffered her to slip away at night from under her bows.

III. SUPPLIES FURNISHED TO THE CONFEDERATES BY BRITISH SUBJECTS.

Mr. Fish states that the Confederates had no ships, no mechanical appliances, no open seaports, &c., and implies that the maritime force of the Confederates was entirely derived from England.

The "Sumter," "Nashville," and "Florida," however, all sailed from Confederate ports in which they were armed and fitted out, besides a variety of small coasting privateers, such as the "Talahassee," whose captures form a considerable item in the list of Federal maritime losses lately presented to Congress.

"On the land it was in like manner the munitions of war and the wealth drawn by the insurgents from Great Britain which enabled them to withstand, year after year, the arms of the United States."

If, as Mr. Fish states, the Confederates had no open seaports, how did these munitions and arms reach them?

Either the blockade was inefficient, in which case it was illegal, and neutral nations were not bound to respect it, or it was efficient, as it was recognized by Great Britain to be, and the supply of arms, &c., was hazardous and uncertain.

There is no doctrine more clearly settled than that neutral nations are not responsible for the supplies of contraband sent through a blockade by their subjects. Indeed, the very existence of a blockade implies this, for if it were the duty of neutrals to prevent the shipment of supplies to belligerents, why should there be a blockade at all? Each side would claim compensation for the assistance rendered to the other, and neutrality would become impossible.

If once it be conceded that blockaderunning is an offence against neutrality in a civil war, the precedent would not fail to be invoked in all wars by whichever belligerent considered himself most aggrieved. Instead of establishing a principle in the interests of future peace,

this would lead to endless complications and claims and counter-claims which would make the end of one war the sure beginning of another.

The question of the action of the Dutch in the War of Independence cannot be dealt with without a review of the history of the period, for which this memorandum does not afford space. An account of the proceedings at St. Eustache, and subsequent discussions with the Dutch Government, will be found in De Marten's "Nouvelles Causes Célèbres du Droit des Gens."

As to the supplies sent through the blockade having been organized by Confederate agents in England, the example was set them by the bureau established by Franklin at Paris for the assistance of the American Provinces.

On the other hand, it is notorious that the Federal troops were plentifully provided with arms and munitions from this country.

Her Majesty's Government have yet to learn that it has been held in international discussions that individuals are precluded from supplying belligerents with munitions of war.

IV. INDIRECT INJURY TO AMERICAN COMMERCE.

Indirectly, the effect was to increase the rate of insurance in the United States, to diminish exports and imports, and otherwise obstruct domestic industry and production, and to take away from the United States its immense foreign commerce and to transfer this to the merchant vessels of Great Britain."

Mr. Fish proceeds to quote figures, showing the decrease in American tonnage between 1860 and 1866.

This allegation of national, indirect, or constructive claims was first brought forward officially by Mr. Reverdy Johnson, in his attempt to renew negotiations on the Claims Convention in March last ("North America, No. 1, 1869," p. 46).

Mr. Thornton has shown the difficulty there would be in computing the amount of claim, even if it were acknowledged ("North America, No. 1, 1869," p. 53), in a despatch in which he mentions the continual decrease of American tonnage.

This is partly, no doubt, to be ascribed to the disturbance of commercial relations consequent on a long war, partly to the fact that many vessels were nominally transferred to British owners during the war to escape capture. Sir E. Hornby, in a recent report, states that this was a constant practice in China.

Is not, however, a good deal of it to be attributed to the high American

The despatch, in conclusion, refers "to important changes in the rules of public law," the desirableness of which has been demonstrated, but does not say what are the changes to which he alludes.

This is in the spirit of the proposal made by Her Majesty's Government in December, 1865 ("North America, No. 1, 1866," p. 164) :

sary.

"I, however, asked Mr. Adams whether it would not be both useful and practical to let bygones be bygones, to forget the past, and turn the lessons of experience to account for the future. England and the United States, I said, had each become aware of the defects that existed in international law, and I thought it would greatly redound to the honour of the two principal maritime nations of the world to attempt the improvements in that code which had been proved to be necesIt was possible, I added, that the wounds inflicted by the war were still too recent, and that the ill-will towards England was still too rife, to render such an undertaking practicable at the present moment; but it was one which ought to be borne in mind, and that was earnestly desired by Her Majesty's Government as a means of promoting peace and abating the horrors of war, and a work, therefore, which would be worthy of the civilization of our age, and which would entitle the Governments which achieved it to the gratitude of mankind."

It is not necessary in this memorandum to dwell on the alleged efficiency of the American as compared to the English Foreign Enlistment Act. The failure of the American Act in the Portuguese

cases, in the repeated filibustering expeditions of Walker against Central America, and the acquittal under it of Lopez, the invader of Cuba, are proofs that its action cannot always be relied upon; and this is further corroborated by the difficulties now being experienced in dealing with the "Hornet," at Wilmington. Although, as Mr. Fish says, there have been prosecutions under it, it is believed that from the trial of Gideon Henfield in 1793 to the present day there has never been a criminal conviction. The only result of the proceedings in rem has been to restore prizes, never to punish privateering; and the effect of the bonds which the Act provides may be taken, that the owners of a vessel shall not themselves employ her in a belligerent service, and which has, it is believed, never been practically enforced, is, as Mr. Bemis, of Boston, points out in his volume on American neutrality, to add so much to the price of the vessel.

With regard to the claims for "vast national injuries," it may be as well to observe that Professor Wolsey, the eminent American jurist, has repudiated them as untenable, while the strongest arguments in favour of the recognition of Confederate belligerency are to be found in the notes to Mr. Dana's eighth edition

of "Wheaton;" and Mr. Lawrence (the editor of the second annotated edition of "Wheaton"), in a recent speech at Bristol, stated that as far as respects the complaint founded on the recognition of the belligerent rights of the Confederates, I cannot use too strong language in pronouncing its utter baseless character. No tyro in international law is ignorant that belligerency is a simple question of fact. With the late Sir Cornewall Lewis, we may ask, if the array of a million of men on each side does not constitute belligerency, what is belligerency? But what was the proclamation of the President, followed up by the condemnation of your ships and cargoes for a violation of the blockade which is established, but a recognition of a state of war? At this moment the United States, in claiming the property of the late Confederate Government, place before your tribunals their title on the fact of their being the successors of a de facto Government. I repeat that, however valid our claims may be against you on other grounds, there is not the slightest pretext for any claim against you based on the public admission of a notorious fact, the existence of which has been recognized by every department of the Federal Government."