Charles Francis Adams to Right Hon. Earl Russell, April 25, 1863

Mr. Adams to Lord Russell.

My Lord: I have the honor to acknowledge the reception of your note of the 20th instant, in answer to several notes of mine, making certain representations in regard to the enlistment of British subjects in warlike operations on the ocean, against the commerce of the people of the United States, with whom her Majesty is at peace.

In further evidence of the truth of former allegations I now have the honor to submit to your consideration a copy of a minute or agreement, duly signed by certain parties, well known at Liverpool, which was given to one of the men who sailed in the vessel called first the Japan, and then the Virginia—a vessel the objects and intent of which have been already exposed by the evidence accompanying my note to your lordship of the 13th instant.

Upon examining the statute of the realm, by the terms of which, in the second section, any proceeding of the sort indicated, if established by proof, is pronounced a misdemeanor, and the party guilty of it punishable by fine and imprisonment at the discretion of the court competent to try the same, I do not perceive that the enforcement of this provision is made dependent upon the exterior action of parties who have occasion to complain of the commission of these offences; nor do I understand their privilege of furnishing information of such facts (as may have become known to them) to her Majesty’s government to be connected with any condition excepting those implied obligations of courtesy which regulate the intercourse of all civilized nations.

It is, therefore, not without the greatest surprise that I gather from the terms of your lordship’s note an impression that my government, for the future, is to be debarred from presenting evidence of the violations of neutrality committed within this kingdom by the enlistment of her Majesty’s subjects in a war on the people of the United States until I can furnish proofs that all British subjects who may have found their own way to the United States at any time within the present century, and have voluntarily enlisted in the federal army or navy, have been discharged, and that orders have been given not to enlist or engage any such persons to serve in arms contrary to the tenor of her Majesty’s proclamation.

I need not point out to your lordship the fact that this is asking what it is altogether beyond the powers of the government of the United States to do by virtue of any existing law. Your lordship has heretofore, on many occasions, called my attention to the fact that her Majesty’s government cannot go beyond the law in applying a remedy to any abuse, however flagrant. It certainly would not counsel another government to do that which it refuses to do itself. It is quite certain that a very large number of persons, reckoned still as subjects by the law of the realm, have yet emigrated to the United States, have renounced their allegiance to her Majesty, and have become citizens of the United States. As such they are recognized as having obtained certain new rights, and become subject to correlative obligations. One of these last is that incumbent equally on all citizens of serving their country, if called upon, in time of war. From this it is not possible for the government to relieve them. Hence, if her Majesty’s government is to be understood as requiring that a condition of discharging the large number of persons embraced in this category from the military and naval service of the United States, is to be fulfilled prior to the exercise by the United States of a right to make representations respecting the violations of the laws enforcing neutrality committed within this kingdom by the enlistment of her Majesty’s subjects in a war against a friendly nation, I very much fear lest this act may be construed as indicative of a disposition to cut off the opportunities of remonstrance by demanding the performance of an obvious impossibility. Of course I cannot permit myself to suppose that such an intention has been entertained for a moment. Yet, on the other hand, it is not to be denied that, according to the terms of your lordship’s note, the effect indicated must practically follow.

The government of the United States acknowledges, and will, whenever called upon, perform, the obligation to enforce the laws prohibiting its citizens from entering into the military or naval service of friendly nations engaged in war with one another. But they cannot engage to refuse the service of volunteers who may be disposed to come to the United States and offer their aid in the great struggle in which they are engaged, no matter from what country they may come. The memory of such names as LaFayette, Kosciusko, and DeKalb, not to mention others, remains too much in honor among them to justify any such step. Her Majesty’s government, in appearing to require it, asks more than has ever been suggested under any theory of international law, and directly the opposite of what it has been heretofore in the habit of practicing itself.

The archives of this legation, for many years back, and running far beyond the period of the late war with Russia, abound in instances of applications to her Majesty’s government for the discharge of citizens of the United States who have voluntarily enlisted in her Majesty’s service. In some cases they have been granted as a matter of favor, but never as an acknowledgment of right. And of late years they have been uniformly refused unless coupled with the condition commonly attached to the discharge of subjects, the repayment of the advance—the temptation which drew them to enlist. I have now before me a note received from an individual alleging himself to be a citizen of the United States, but as a gunner in the British navy, driven by his poverty to enlist, praying me to interpose in his behalf and to transfer him to a post where he could serve his own country in this her time of greatest need. I have been obliged to answer his application by saying that her Majesty’s government declines to act in similar cases, excepting as matters of favor, and then, in such a position as his, only on the requisition of the payment of thirty pounds. A condition like this is generally equivalent to a denial. It is not a part of my purpose to complain of this course. But such being the practice of her Majesty’s government, it can scarcely be expected that the government of the United States could be called upon to adopt any other.

Neither is this the only or the strongest instance of the declaration of her Majesty’s government of a right to accept the services of the people of all nations in time of war. Lord Stowell, than whom no more eminent authority is ever cited as authority in British jurisprudence, has explicitly declared, in the broadest terms, that “in time of war every country admits foreigners into its general service.” This is a measure “to which every country has resort in every war, whether prosperous or adverse.”

Her Majesty’s government proceeded to act upon this principle in the very last war in which Great Britain was engaged. And her secretary of state for foreign affairs at the time, Lord Clarendon, appears to have enunciated it, in the very widest terms, in addressing the government of the United States. In defending the action of persons who actually went far beyond the line marked out, his lordship affirmed that unless there was an express law forbidding the subjects of a country to leave the territory, it was perfectly legitimate for another country to invite them to leave it, for the purpose of entering into its service. I quote the language of his despatch to Mr. Crampton of the 16th November, 1855 :

“It is of course competent to any nation to enact a municipal law, such as actually exists in many countries, forbidding its subjects to leave its territory; but in such cases ‘civitas career est;’ and it may be the duty of other countries to abstain from actively assisting the captives to escape from the national prison in order to serve another master. But the government of the United States has enacted no such law. It justly boasts of its complete freedom in this respect— ‘civitas non career est.’ All residents therein, whether foreigners or citizens, are perfectly free to leave its territory, without the permission of the government, at their own absolute discretion, and to enter the service of any other state when once within its frontier. To invite them or persuade them to do what is thus lawful, can constitute no violation of the territorial rights which the sovereign power has never claimed or exercised.”

Neither is this all, nor even the most decisive testimony to the policy heretofore pursued by Great Britain in regard to this matter. I have reason to believe that there is a statute of the realm, of ancient date, which expressly authorizes and directs the enlistment of foreigners, of any and every nation, into the army or navy, in time of war, and which tenders to them as an inducement the boon of naturalization as British subjects. That act, though passed to meet an immediate emergency appears to give powers which revive its vigor on the breaking out of any future war. I have no reason to suppose that it is not yet in force to this day. I have the honor to transmit a copy of that statute. I cannot help believing that it places beyond the possibility of a doubt the question of principle which lies at the bottom of this discussion, so far as the uniform action of this kingdom contributes to establish it among nations.

Under these circumstances, I cannot but hope that her Majesty’s government will so far reconsider the interdiction they appear to have laid upon the United States, in the present case, as not to demand, as a prior condition, the performance of a common act of remonstrance, not simply a series of measures never required before, but one at war with the whole previous policy of Great Britain in its own case, contrary to the general practice of nations, as well as obviously impossible to perform.

I pray your lordship to accept the assurances of the highest consideration with which I have the honor to be, my lord, your most obedient servant,