By the President: J. P. Benjamin to [For Mr. Benjamin’s letter to Mr. Fullarton, of October 8, 1863, see enclosure 2 in No. 8.], October 8, 1863

Mr. Benjamin to Mr. Slidell.

Sir: The conduct of the British consular agents in the confederacy has compelled the president to take the decisive step of expelling them from our country; and it is deemed proper to put you in possession of the causes which have produced this result, that you may have it in your power to correct any misrepresentations on the subject. To this end it is necessary to review the whole course of the British government and that of the confederacy in relation to these officials.

When the confederacy was first formed, there were in our ports a number of British consuls and consular agents, who had been recognized as such, not only by the government of the United States, which was then the authorized agent of the several States for that purpose, but by the State authorities themselves. Under the law of nations, those officials are not entitled to exercise political or diplomatic functions, nor are they ever accredited to the sovereigns within whose dominions they reside. Their only warrant of authority is the commission of their own government; but usage requires that those who have the full grade of consul should not exercise their functions within the territory of any sovereign before receiving his permission in the form of an exequatur; while consular agents of inferior grade simply notify the local authorities of their intention to act in that capacity. It has not been customary, upon any change of government, to interfere with these commercial officials already established in the discharge of their duties, and it is their recognized obligation to treat all governments which may be established de facto over the ports where they reside as governments de jure. The British consular officials gave no cause of complaint on this score, and the president interposed no objection to the continued exercise of their functions. On other grounds, however, various causes of complaint subsequently arose, and in the case of Consul Moore it was found necessary to revoke his exequatur for his disregard of the legitimate request of this department that he should abstain from further action as consul until he had submitted his commission for inspection, and because of his offensive remarks touching the confederate authorities in relation to two enlisted soldiers, as fully explained in a published despatch of this government. Attention was also called in that despatch (which was communicated to the British cabinet) to the objectionable conduct of British functionaries in the enemy’s country, who assumed authority within the limits of the confederacy, thereby implying that these States were still members of the Union to which those functionaries were accredited, and ignoring the existence of this government within the territory over which it was exercising unquestioned sway. Notwithstanding the grave character of this complaint, the president confined himself to reprehending this conduct, and to informing the British government that he had forbidden, for the future, any direct communication between British consuls here and British officials in the United States. And here it may not be improper to observe, that although this despatch was published at the time of its date, and was communicated to the foreign office in London, her Majesty’s ministers made the strange mistake of asserting in the House of Commons that Mr. Moore’s dismissal was connected in some way with alleged cruelties committed on one Belshaw, of whose existence the department was ignorant till the publication of the debate, and concerning whom no representation exists oh its files.

Soon after that despatch was forwarded, the president was apprised by the Governor of Alabama that her Majesty’s government had visited with severe displeasure and had removed from office the British consular agent at Mobile, because he had received and forwarded from Mobile, on an English man-of-war, money due by the State of Alabama to British subjects for interest on the public debt of the State; and that the British minister at Washington, after failing in active efforts to prevent the remittance of this money, had assumed the power of appointing a consular agent within the confederacy to replace the officer at Mobile who had incurred censure and punishment for the discharge of a plain duty to British subjects which happened to be distasteful to the United States. A copy of the despatch on this subject communicated to the British governments enclosed, and you will perceive that the action of the president was marked by extreme forbearance, and that he confined himself to refusing permission that Mr. Cridland should act under Lord Lyons’s instructions, and to expressing the confident hope that her Majesty’s government would in the future choose some other mode of transmitting its orders and exercising its authority over its agents within the confederacy, than by delegating to functionaries who reside among our enemies the power to give orders or instructions to those who reside among us.

In his answer to this despatch (of which a copy is also enclosed) Earl Russell, while acknowledging the justice of our remonstrance against the assumption of authority by Lord Lyons, defends the action of the British government in the matter of the Mobile consulate by maintaining that the transmission of the specie by Consul Magee, under the circumstances above explained, “had the character, in the eyes of her Majesty’s government, of aiding one of the belligerents against the other.” This statement clearly assumes that the transmission of specie from one of these States to Great Britain in payment of a public debt to British subjects is an act of hostility against the United States, which British officials cannot promote with due regard to neutral obligations, because it “aids one of the belligerents against the other.” No reason is given for this conclusion, which appears to us to be at variance with all received notions of international law. The States of the confederacy have, under the most adverse circumstances, made great efforts and sacrifices to effect punctual payment of their debts to neutrals, and these efforts do not seem to us to be properly characterized as being belligerent acts against our enemies. We can but regret that her Majesty’s government have determined so to regard them, and to discourage the discharge of a duty in which British subjects are so deeply interested.

Within the last few days the president has been informed by communications addressed to the State and confederate authorities by two out of the three British consular agents remaining here that they had received instructions from their government to pursue a course of conduct in regard to persons of British origin now resident within the confederacy which it has been impossible to tolerate. It seems scarcely probable that the instructions of Earl Russell have been properly understood by his agents, but we have no means of communicating with the British government for the correction of misunderstandings. You are aware that Great Britain has no diplomatic agent accredited to us, and that Earl Russell having declined a personal interview with Mr. Mason, the latter, after some time spent in an unsatisfactory interchange of written communications, has been relieved of a mission which had been rendered painful to himself, and was productive of no benefit to his country. The president was, therefore, compelled to take the remedy into his own hands.

A brief statement will suffice for your full comprehension of the matter. In April, 1862, Congress passed a law directing a draft for the army of “all white men who are residents of the Confederate States, between the ages of eighteen and forty-five years, and not legally exempted from military service.” The draft was made, as stated in the law, in view of the absolute necessity “of placing in the field a large additional force to meet the advancing columns of the enemy now invading our soil;” in other words, all residents capable of bearing arms were called on to protect their own homes from invasion, their own property from plunder, their own families from cruel outrage. You will observe that the call was not made until after a year of war, during which it had been entirely within the power of all foreigners to depart from a country threatened with invasion, if they preferred not to share the common lot of its inhabitants.

Upon the promulgation of this law objection was made by several foreign consuls to its application to the subjects of their sovereigns, and the president directed that its provisions should not be so construed as to impose forced military service on mere sojourners or temporary residents, but only on such as had become citizens of the confederacy de jure, or had rendered themselves liable, under the law of nations, to be considered as citizens de facto, by having established themselves as permanent residents within the confederacy, without the intention of returning to their native country.

To this very liberal interpretation of the law in favor of foreign residents, it was not supposed that objection could be taken; but on the 12th November, 1862, Consul Bunch, at Charleston, wrote to the department as follows:

“I have now received the instructions of Earl Russell to signify to you the views of her Majesty’s government on this subject.

“I am desired to lose no time in remonstrating strongly against the forcible enlistment of British subjects, and to say that such subjects, domiciled only by residence in the so-called Confederate States, cannot be forcibly enlisted in the military service of those States by virtue of an ex post facto law, when no municipal law existed at the time of their domicile rendering them liable to such service.

“It may be competent for a State in which a domiciled foreigner may reside to pass such an ex post facto law, if at the same time an option is offered to foreigners affected by it to quit, after a reasonable period, the territory, if they object to serve in the armies of the State; but without this option such a law would violate the principles of international law, and even with such an option the comity heretofore observed between independent States would not be very scrupulously observed.

“The plainest notions of reason and justice forbid that a foreigner admitted to reside for peaceful and commercial purposes in a State forming a part of the federal Union should be suddenly and without warning compelled by the State to take an active part in hostilities against other States which, when he became domiciled, were members of one and the same confederacy; which States, moreover, have threatened to treat as rebels, and not as prisoners of war, all who may fall into their hands.

“To these considerations must be added the fact that the persons who have been the victims of this forced enlistment are forbidden, under severe penalties, by the Queen’s proclamation, to take part in the civil war now raging in America, and that thus they are made not only to enter a military service contrary to their own wishes and in violation of the tacit compact under which they took up their original domicile, but also to disobey the order of their legitimate sovereign.

“I am directed by Earl Russell to urge these several considerations upon you, and to add that her Majesty’s government confidently hope and expect that no further occasion for remonstrance will arise on this point.”

No reply was deemed necessary to this despatch, (nor to a similar one from Consul Moore, dated on the 14th November,) notwithstanding the very questionable assumptions, both of law and fact, contained in it, because there seemed to be no substantial point at issue between the two governments, and discussion could therefore serve no useful purpose. Earl Russell was not understood to insist on anything more than that British subjects resident within the confederacy should be allowed a reasonable time to exercise the option of departing from the country if unwilling to be enrolled in its service; and, in point of fact, this option had never been refused them, and many had availed themselves of it. Nor was it believed that her Majesty’s government expected a very favorable response to their appeal to this government for the exercise of the comity between “independent” States supposed to be involved in this subject, whilst Great Britain was persistently refusing to recognize the independence which alone could justify the appeal.

Since the date of these two letters numerous requests have been made by British consular officials for the interposition of this government in behalf of persons alleged to be British subjects wrongfully subjected to draft. Relief has always been afforded when warranted by the facts, but it soon became known that these gentlemen regarded their own certificates as conclusive evidence that the persons named in them were exempt from military service, and that these certificates were freely issued on the simple affidavit of the interested parties. Thus Consul Moore was deceived into claiming exemption for two men who were proven to be citizens of the confederacy, and to have been land-owners and voters for a series of years prior to the war.

Much inconvenience was occasioned before these abuses could be corrected, but they afterwards assumed a shape which forbade further tolerance. The correspondence of the acting British consuls at Savannah and Charleston, already referred to, asserts the existence of instructions from their government, under which, instead of advising British subjects to resort to the courts of justice, always open for the redress of grievances, or to apply to this government for protection against any harsh or unjust treatment by its subordinates, they deem it a duty to counsel our enlisted soldiers to judge for themselves of their right to exemption, to refuse obedience to confederate laws and authority, and even exhort them to open mutiny in face of the enemy.

This unwarrantable assumption by foreign officials of jurisdiction within our territory, this offensive encroachment on the sovereignty of the Confederate States, has been repressed by the president’s order for the immediate departure of all British consular agents from our country, as you will perceive by a perusal of the enclosed copy of the notice addressed to one of them, Acting Consul Fullarton.

But a few months have elapsed since the utmost indignation was expressed by the British government against the United States minister at London for issuing a safe-conduct to be used on the high seas by a merchant vessel; and the ground of this denunciation was his exercise of direct authority over subject-matter within the exclusive territorial jurisdiction of the Queen. It is difficult, therefore, to conceive on what basis her Majesty’s government have deemed themselves justified in the much graver encroachment on the sovereignty of these States, which has been attempted under instructions alleged to have emanated from them.

It is not my purpose here to discuss the nature and extent of the claims of the confederacy on the allegiance of persons of foreign origin residing permanently within its limits, (easy as would be the task of demonstrating the obligation of such residents, under the law of nations, to aid in the defence of their own homes and property against invasion,) because, as already observed, the liberal construction of the law in their favor which has been sanctioned by the president, and the indulgence of the government in permitting them for many months to exercise the option of avoiding service by departing from the country, deprive the discussion of any practical interest. I have been induced to place the whole subject fully in your possession, by reason of a statement made by Consul Fullarton to the governor of Georgia, that in the event of the failure of his remonstrances to produce the exemption of all British subjects from service, he is instructed to state that “the governments in Europe interested in this question will unite in making such representations as will secure to aliens this desired exemption.”

The menace here implied would require no answer if it were not made professedly under instructions. It is scarcely necessary to say to you that the action of the president in repelling with decision any attempt by foreign officials to arrogate sovereign rights within our limits, or to interfere of their own authority with the execution of our laws, would not be affected in the slightest degree by representations from any source, however exalted. This is the only point on which the president has had occasion to act, and on this point there is no room for discussion.

The exercise of the droit de renvoi is too harsh, however, to be resorted to without justifiable cause, and it is proper that you should have it in your power to explain the grounds on which the president has been compelled to enforce it. Lest also the government of his Imperial Majesty should be misled into the error of supposing that the rights of French citizens are in any manner involved in the action of the president, which has been rendered necessary by the reprehensible conduct of the British consular agents, you are requested to take an early occasion for giving such explanation to M. Drouyn de l’Huys as will obviate all risk of misapprehension.

I am, &c.,