Right Honorable the Earl of Clarendon to Sir Frederick Bruce, G. C. B, January 19, 1866

Lord Clarendon to Sir F. Bruce

Sir: In my despatch No. 68, of the 26th ultimo, I transmitted to you a copy of a despatch addressed to Mr. Adams by Mr. Seward, and which had been communicated to me by the former, protesting against the course pursued by her Majesty’s government with regard to the Shenandoah.

Her Majesty’s government have had this despatch under their consideration in communication with the proper law advisers of the Crown, and I have now to state to you that it is impossible for her Majesty’s government to avoid expressing their surprise and regret at the tone and style which throughout characterize it. The despatch imputes to her Majesty’s government in plain terms a determination to disregard “applications for justice” made by the United States government, and an intention to shelter from the punishment due to their offence persons known to be guilty of piracy.

Her Majesty’s government think that, by not replying to this extraordinary and unfounded charge, they shall best consult their own dignity and exhibit their desire to maintain friendly relations with the government of the United States.

With respect to the proofs stated to have been furnished to her Majesty’s government of the alleged guilty practices of the Shenandoah, and the statements as to the nationality of her crew, I have to make the following observations:

Mr. Seward, in his despatch, while dwelling only upon the crime of piracy, which he assumes to have been committed by the commander and crew of the Shenandoah, says that the alleged offenders, when under the power of her Majesty’s government, obtained their “discharge and unconditional enlargement upon two grounds: First, that her Majesty’s government had in their possession no evidence to impeach a prevaricating plea of the commander; and, secondly, that none of those persons were subjects of Great Britain; “whereas,” he says, “upon evidence, which seems to this government entirely conclusive, all the offenders were either native subjects of the Queen, or had become, by some sufficient form of refuge or domiciliation, amenable equally with native subjects to the penal laws of the realm”

Mr. Seward cannot be ignorant that her Majesty’s government have never alleged the fact that none of these persons were shown to be subjects of Great Britain, as a reason for not prosecuting them for piracy. Foreigners guilty of piracy are as much amenable to the tribunals of this country as natural-born subjects. It was only with reference to a very different question, namely, whether any charge could be made under the foreign enlistment act, that the nationality of these persons was, or was over alleged to be, material. That question of course depended upon the words of the particular statute under which the enlistment abroad or on the high seas of persons who had become, by any “form of refuge or domiciliation,” or otherwise, amenable to British laws while in this country, would not be an offence, unless they were “natural-born subjects of her Majesty.”

Mr. Seward does not commit himself to the assertion that her Majesty’s government were in possession of evidence to show that any of those persons who formed the crew of the Shenandoah when she arrived at Liverpool were natural-born British subjects; and, as a matter of fact, it is certain that her Majesty’s government were not in possession of such evidence, nor could such a fact be presumed in the absence of evidence, against individuals coming to Liverpool on board a confederate ship of war, and not shown to have enlisted within her Majesty’s dominions.

To return to the first ground, the only material one, as to the charge of piracy, upon which her Majesty’s government is, and so far truly, said to have acted; whether Captain Waddell’s statement was or was not open to the charge of prevarication brought against it by Mr. Seward, it was not in the power of her Majesty’s government to detain any of those men without laying an information against them before a magistrate in the ordinary course of law, and supporting it by at least some prima facie evidence. The simple fact is, that there was no such evidence. But Mr. Seward says, (1) that every part of the unlawful transaction complained of had occurred either in British ports or on the decks of the Shenandoah, herself a British vessel, (2) that all these transactions had been fully made known to her Majesty’s government, and (3) that any parties who could give the necessary testimony for the conviction of the pirates were not only within British jurisdiction, but actually within custody of agents of her Majesty’s government.

Each of these propositions must be separately examined. The first seems to her Majesty’s government to imply that Mr. Seward’s charge of piracy against the Shenandoah is not founded upon the alleged continuance of hostilities by Captain Waddell after he had received notice of the termination of the war, but that he designates as piracy all the captures made by that vessel during the whole course of the war, and endeavors to support that pretension by the allegation that she was throughout “a British vessel.” To this it is enough to say, that such a view is opposed either to universally acknowledged principles of law, or to notorious and indisputable facts: to universally acknowledged principles of law, if Mr. Seward means to contend that the commander and crew of a vessel commissioned as a public ship of war by a revolutionary government which has been recognized as a belligerent power by neutral nations, can be charged in a neutral country with piracy, merely for capturing and destroying the ships of the other belligerent; to notorious and indisputable facts if he means to deny that the Sea King was transferred and delivered by former British owners and commander to agents of the Confederate States, by whom she was purchased, in order that she might be employed and commissioned by and in the service of those States, or that she was actually so employed and commissioned as a public ship of war, under the name of the Shenandoah, from a period antecedent to the first capture made by her down to the close of the war. It cannot be too distinctly understood that no charge of piracy could possibly be preferred or entertained against this vessel under these circumstances by her Majesty’s government, or in the courts of this country, unless it had been satisfactorily shown that this ship wilfully continued to seize and destroy United States vessels after she was apprised of the termination of the war. But there is a further answer to the allegation that the Shenandoah is to be regarded as having been, while making war upon the United States, “a British vessel.” When she arrived at Liverpool, Mr. Adams, on the 7th of November, 1865, requested her Majesty’s government to take possession of her, “with a view to deliver her into the hands of his (the United States) government,” taking notice at the same time of the “belligerent character” which, “in the eyes of her Majesty’s government,” she had possessed, though suggesting that there might be grounds for taking criminal proceedings against the persons on board, either because “her ravages” appeared to have been continued after her claim to a belligerent character had, at all events, ceased, or because several of those persons were “British subjects.” Her Majesty’s government having received from Captain Waddell the possession of this ship, surrendered by him expressly for the reasons alleged in his letter of the 6th of November, 1865, namely, that “as all the property of government had reverted by the fortune of war to the government of the United States of North America, therefore this vessel, inasmuch as it was the property of the Confederate States, should accompany the other property already reverted,” complied with Mr. Adams’s request, and delivered up the ship to the agents of the United States government, at the same time sending Mr. Adams a copy of Captain Waddell’s letter. Mr. Adams, in a letter dated the 14th of November, 1865, stated that the consul of the United States at Liverpool had taken charge of the vessel under his instructions, and added, what has unfortunately not been verified by the event, that he entertained no doubt that the promptness of this proceeding would give great satisfaction to his government.

It is hardly necessary for me to point out to you that Mr. Adams’s request for the delivery of this ship to the United States government could neither have been made or complied with except upon the ground that she was, in the circumstances which had happened, the lawful property of that government. If she had been British owned, as Mr. Seward now desires to represent, the government of the United States could have had no possible claim or title to her, even though she might have been guilty of piracy; nor could the Crown of Great Britain have acquired any title to or disposing power over her, by means of any surrender of Captain Waddell in the port of Liverpool, or by any other means short of a regular forfeiture and condemnation by process of law.

To Mr. Adams, when he made the request, all this was of course perfectly well known, and he also knew, if not otherwise, at all events from the proceedings before Vice Chancellor Wood, in the case of The United States vs. Prioleau, taken by his own direction, that the government and the courts of this country must necessarily recognize his government as entitled to the property in this vessel on the ground stated by Captain Waddell, namely, that she had been acquired and was possessed as public property by the persons who during the war had exercised the powers of government in the Confederate States; a ground which, I may add, was also distinctly recognized by the judge of the United States prize court in the case of the Wren. Her Majesty’s government were at the time entitled to assume, and they did so assume, that this request was made upon this ground, on which alone it could be supported, and after having so obtained the delivery of the vessel, it certainly does not seem to her Majesty’s government to be consistent in the government of the United States to deny that she was a public ship of war belonging to and commissioned by the revolutionary government of the Confederate States.

I have dwelt so much upon this point because it seems to be that upon which Mr. Seward really relies. I now proceed to examine his second statement, namely, that “all the transactions,” supposed to make out a case of piracy against the Shenandoah, had been, “before the crew were released at Liverpool, fully made known to her Majesty’s government.” This confirms her Majesty’s government in their impression that Mr. Seward does not mean to rely upon the allegation that the Shenandoah continued her ravages after she was apprised of the termination of the war. For the fact is, that the only particulars with respect to any capture or captures made by the Shenandoah, at any date or dates subsequent to the termination of the war, which had ever before that time been communicated to her Majesty’s government, either by Mr. Adams or in any other manner, were contained in the documents relating to the capture of the William C. Nye, on the 26th of June, 1865, which were forwarded with Mr. Adams’s letter to Earl Russell of the 21st of October last, and of which I now enclose copies. These documents, however, which included the protest of the master of the William C. Nye, made at San Francisco on the 7th of August last, are absolutely silent as to any notice or knowledge of the termination of the war, either by the captors or by the master and crew of the William C. Nye, or by any of the persons met by them on board the Shenandoah, who had belonged to the crews of vessels previously captured.

This seems to her Majesty’s government to be very strong negative evidence that the termination of the war was not, in fact, known at the time when, and in the seas where, this capture took place. But whether that be so or not, these documents certainly did not put her Majesty’s government in possession of any evidence showing, or tending to show, that the crime of piracy had been committed. There remains only Mr. Seward’s third statement, that “any parties who could give the necessary testimony for the conviction of the pirates, were not only within British jurisdiction, but virtually within the custody of agents of her Majesty’s government.” As Mr. Seward has not explained to what persons he here refers, I can only say, that the existence of persons able to give such testimony was not then known or indicated to her Majesty’s government; and if it was then known to the minister or any other agent of the United States in this country, it was not communicated by them to her Majesty’s government. If Mr. Seward means that some of the persons forming the crew of the Shenandoah could themselves have given available evidence for the purpose, it is hardly necessary to observe that no such evidence was offered, or known to be available; and that it is not consistent with our usual method of administering justice to endeavor to extract from persons suspected, even on probable grounds of crime, admissions capable of being used against themselves.

Her Majesty’s government have no further comments to offer upon this despatch, except to repeat what they have formerly stated, that if the agents of the United States in this country, or any other persons, were in possession of evidence on which a charge of piracy against the officers and crew of the Shenandoah could have been supported before a magistrate, it was competent for them to have themselves preferred such a charge, and to have obtained a conviction thereon in due course of law.

You will read and give a copy of this despatch to Mr. Seward.

I am, &c, &c.,