Mr. Adams to Mr. Seward, December 25, 1862

Mr. Adams to Mr.
Seward.

Sir: I transmit herewith a copy of Lord
Russell’s note to me of the 19th instant, in reply to my representation,
dated the 20th of November, in the case of the “290.” The material
portion, consisting of the answer to the two demands which I was
instructed to make, is of course withdrawn at once from my province, and
awaits the decision of the President. But upon the collateral topics
introduced by his lordship into the discussion, I am preparing a note
explaining and re-enforcing my view, which cannot be completed in season
to send by the present opportunity. The pressure on the force of the
legation, as well as on my own time during this week, renders it
impossible to get the papers ready.

I have the honor to be, sir, your obedient servant,

Earl Russell to Mr. Adams.

Sir: I have the honor to acknowledge the
receipt of your letter of the 20th ultimo, in which, under
instructions from your government, you submit, 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 intention
with which the vessel formerly known as the “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 7th 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 had openly avowed its
determination to disregard all the principles of international law
which had been acknowledged by civilized states, and that government
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 their 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 naught 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 cruiser, 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 honor to refer you, in illustration of the truth of this,
to the answer which I caused to be returned on the 6th of July to a
memorial from British merchants and ship-owners at Liverpool, and of
which I furnished you 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, the
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 ground for 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 endeavor 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:

First. “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 and
penalties prescribed by the law of nations or particular
treaties.”—(Wheaton’s International Law, 6th edition, 1855, page
571, by Lawrence.)

Secondly. “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 of 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 judical authorities of this country,
(United States.) The right of the neutral to transport, and of the
hostile power to seize, are conflicting rights, and neither party
can charge the other with a criminal act.”—(Kent’s Commentaries,
vol. 1, page 145, 8th edition, 1854.)

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 international
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 honor 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 22d 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 despatched 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.

It is needless, however, that I should pursue this branch of the
question further, since you admit that you are aware that the
Alabama sailed not only without the direct authority or indirect
permission of her Majesty’s government, but in opposition to the
municipal law, and in spite of earnest endeavors made to enforce
it.

That this should have happened is a circumstance not calculated to
excite much surprise in the United States, for two reasons: first,
because the principal municipal law of the United States (passed
almost at the same time as that of this country, and, it is
believed, after a full understanding between the two States) is, in
fact, almost identical with that of Great Britain upon this subject;
and, secondly, because its notorious evasion during the late war,
waged by Great Britain and her allies against Russia, was the
subject of remonstrance on the part of her Majesty’s representative
at Washington to the United States.

Great Britain was then, as on other occasions, assured that every
effort which the law would permit had been made to prevent such
practices; that the United States government could only proceed upon
legal evidence, the law as to which is almost, if not entirely, the
same as in this country, and that without such evidence no
conviction could be procured.

In the case of the Alabama it is not denied that strict orders were
given for her detention as soon as it appeared to the legal advisers
of the crown that the evidence might be sufficient to warrant them
in advising such a course, and that the Alabama contrived to evade
the execution of those orders.

Her Majesty’s government cannot, therefore, admit that they are under
any obligation whatever to make compensation to United States
citizens on account of the proceedings of that vessel.

As regards your demand for a more effective prevention for the future
of the fitting out of such vessels in British ports, I have the
honor to inform you that her Majesty’s government, after
consultation with the law officers of the crown, are of opinion that
certain amendments might be introduced into the foreign enlistment
act, which, if sanctioned by Parliament, would have the effect of
giving greater power to the Executive to prevent the construction in
British ports of ships destined for the use of belligerents. But her
Majesty’s government consider that, before submitting any proposals
of that sort to Parliament, it would be desirable that they should
previously communicate with the government of the United States, and
ascertain whether that government is willing to make similar
alterations in its own foreign enlistment act; and that the
amendments, like the original statute, should, as it were, proceed
pari passu in both countries.

I shall accordingly be ready at any time to confer with you, and to
listen to any suggestions
which you may have to make by which the British foreign enlistment
act, and the corresponding statute of the United States, maybe made
more efficient for their purpose.

I have the honor to be, with the highest consideration, sir, your
most obedient, humble servant,