Right Hon. Earl Russell to The Lord Lyons, May 18, 1861

[Untitled]

My Lord: Her Majesty’s government deeply lament the outbreak of hostilities in North America, and they would gladly lend their aid to the restoration of peace.

You are instructed, therefore, in case you should be asked to employ your good offices either singly or in conjunction with the representatives of other powers, to give your assistance in promoting the work of reconciliation. But as it is most probable, especially after a recent letter of Mr. Seward, that foreign advice is not likely to be accepted, you will refrain from offering it unasked. Such being the case, and supposing the contest not to be at once ended by signal success on one side or by the return of friendly feeling between the two contending parties, her Majesty’s government have to consider what will be the position of Great Britain as a neutral between the two belligerents.

So far as the position of Great Britain in this respect toward the European powers is concerned, that position has been greatly modified by the declaration of Paris of April 16, 1856. That declaration was signed by the ministers of Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey.

The motives for making that declaration, and for agreeing to the articles of maratime law which it proposes to introduce with a view to the establishment of a “uniform doctrine” and “fixed principles,” are thus shortly enumerated in the declaration:

“Considering that maritime law in time of war has long been the subject of deplorable disputes;

“That the uncertainty of the law and of the duties in such a matter gives rise to differences of opinion between neutrals and belligerents which may occasion serious difficulties and even conflicts;

“That it is consequently advantageous to establish a uniform doctrine on so important a point;

“That the plenipotentiaries assembled in congress at Paris cannot better respond to the intentions by which their governments are animated than by seeking to introduce into international relations fixed principles in this respect—

“The above-mentioned plenipotentiaries, being duly authorized, resolved to concert among themselves as to the means of attaining this object, and having come to an agreement have adopted the following solemn declaration:”

• 1st. Privateering is and remains abolished.
• 2d. The neutral flag covers enemy’s goods, with the exception of contraband of war.
• 3d. Neutral’s goods, with the exception of contraband of war, are not liable to capture under enemy’s flag.
• 4th. Blockades, in order to be binding, must be effective—that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.

The powers signing the declaration engaged to bring it to the knowledge of the states which had not taken part in the congress of Paris, and to invite those states to accede to it. They finally agreed that “the present declaration is not and shall not be binding, except between those powers who have acceded or shall accede to it.”

The powers which acceded to the declaration are Baden, Bavaria, Belgium, Bremen, Brazil, Duchy of Brunswick, Chili, the Argentine Confederation, the Germanic Confederation, Denmark, the Two Sicilies, the Republic of the Equator, the Roman States, Greece, Guatemala, Hayti, Hamburg, Hanover, the Two Hesses, Lubeck, Mecklenburg Strelifcz, Mecklenburg Schwerin, Nassau, Oldenburg, Parma, Holland, Peru, Portugal, Saxony, Saxe Attenburg, Saxe Coburg Gotha, Saxe Meiningen, Saxe Weimer, Sweden, Switzerland, Tuscany, Wurtemburg, Anhalt Dessau, Modena, New Grenada, and Maguay.

Mr. Secretary Marcy, in acknowledging, on the 28th of July, 1856, the communication of the declaration of Paris made to the government of the United States by the Count de Sartiges, proposed to add to the first article thereof the following words: “and that the private property of the subjects or citizens of a belligerent on the high seas shall be exempted from seizure by public armed vessels of the other belligerents, except it be contraband;” and Mr. Marcy expressed the willingness of the government of the United States to adopt the clause so amended, together with the other three principles contained in the declaration.

Mr. Marcy also stated that he was directed to communicate the approval of the President of the second, third, and fourth propositions, independently of the first, should the proposed amendment of the first article be unacceptable.

The United States minister in London, on the 24th of February, 1857, renewed the proposal in regard to the first article, and submitted a draft of convention, in which the article so amended would be embodied with the other three articles. But, before any decision was taken on this proposal, a change took place in the American government by the election of a new President of the United States, and Mr. Dallas announced, on the 25th of April, 1857, that he was directed to suspend negotiations on the subject; up to the present time those negotiations have not been renewed.

The consequence is, that the United States remaining outside the provisions of the declaration of Paris, the uncertainty of the law and of international duties with regard to such matters may give rise to differences of opinion between neutrals and belligerents which may occasion serious difficulties and even conflicts.

It is with a view to remove beforehand such “difficulties,” and to prevent such “conflicts,” that I now address you.

For this purpose I proceed to remark on the four articles, beginning, not with the first, but with the last.

In a letter to the Earl of Clarenden of the 24th of February, 1857, Mr. Dallas, the minister of the United States, while submitting the draft of a new convention, explains the views of the government of the United States on the four articles.

In reference to the last article, he says: “The fourth of those principles, respecting blockades, had, it is believed, long since become a fixed rule of the law of war.”

There can be no difference of opinion, therefore, with regard to the fourth article.

With respect to the third article, the principle laid down in it has long been recognized as law, both in Great Britain and in the United States. Indeed this part of the law is stated by Chancellor Kent to be uniform in the two countries.

With respect to the second article, Mr. Dallas says, in the letter before quoted: “About two years prior to the meeting of congress at Paris, negotiations had been originated and were in train with the maritime nations for the adoption of the second and third propositions substantially as enumerated in the declaration.”

The United States have therefore no objection in principle to the second proposition.

Indeed her Majesty’s government have to remark that this principle is adopted in the treaties between the United States and Russia of the 22d of July, 1854, and was sanctioned by the United States in the earliest period of the history of their independence by their accession to the armed neutrality.

With Great Britain the case has been different. She formerly contended for the opposite principles as the established rule of the law of nations.

But having, in 1856, upon full consideration, determined to depart from that rule, she means to adhere to the principle she then adopted. The United States, who have always desired this change, can, it may be presumed, have no difficulty in assenting to the principle set forth in the second article of the declaration of Paris.

There remains only to be considered the first article, namely, that relating to privateering, from which the government of the United States withhold their assent. Under these circumstances it is expedient to consider what is required on this subject by the general law of nations. Now, it must be borne in mind that privateers bearing the flag of one or other of the belligerents may be manned by lawless and abandoned men, who may commit, for the sake of plunder, the most destructive and sanguinary outrages.

There can be no question but that the commander and crew of the ship bearing a letter of marque must, by law of nations, carry on their hostilities according to the established laws of war. Her Majesty’s government must, therefore, hold any government issuing such letters of marque responsible for, and liable to make good, any losses sustained by her Majesty’s subjects in consequence of wrongful proceeding of vessels sailing under such letters of marque.

In this way the object of the declaration of Paris may, to a certain extent, be attained without the adoption of any new principle.

You will urge these views upon Mr. Seward.

The proposals of her Majesty’s government are made with a view to limit and restrain that destruction of property and that interruption of trade which must, in a greater or less degree, be the inevitable consequence of the present hostilities. Her Majesty’s government expect that these proposals will be received by the United States government in a friendly spirit. If such shall be the case, you will endeavor (in concert with M. Mercier) to come to an agreement on the subject binding France, Great Britain, and the United States.

If these proposals should, however, be rejected, her Majesty’s government will consider what other steps should be taken with a view to protect from wrong and injury the trade and the property and persons of British subjects.

I am, &c., &c., &c.,