Chief Justice Taney, Mr. Justice Nelson, Mr. Justice Catron, and Mr. Justice Clifford differed, indeed, from the majority of the court, on the question as to whether the blockade was, in its inception, lawful, founding their opinion upon the fact that though by the Constitution of the United States the President could, in case of invasion or, insurrection, call out the national forces, Congress alone could declare war, and that, Congress not having declared war till the 13th of July, 1861, the President had no power to declare a blockade, and consequently that the seizure of these vessels was illegal. But there was no difference of opinion on the question of belligerent status so soon as civil war is declared. The practice of nations has been entirely in accordance with these principles. All the maritime nations-the others were not concerned in the matter-concurred in according to the confederate government the status and rights of a belligerent power. Whether wkroal. elsnent pra But though it would seem impossible to contest that, at some time during the continuance of the civil war, the recognition of the belligerent status of the confederate government must have taken place, it is asserted that the recognition by the British government was premature. I will endeavor to take a calm and dispassionate view of the position of the parties, and of this much-agitated question. Looking to the state of things which had thus come into existence, Her Majesty's government could not but see that it would soon become not only right, but also necessary to the protection of British interests, to concede to the insurgent states the character of belligerents. As soon as it was known in Great Britain that the war was to be extended to naval operations, the interests of British commerce and British subjects required that the belligerent status of both parties to the great struggle, which was evidently about to ensue, should be clearly ascertained and defined. It was plain that a state of things was about to present itself, such as Mr. Dana refers to, as justifying the recognition of belligerency. Much reliance is placed in the Case of the United States, page 51, for the purpose of establishing the desire of the British government to recognize the insurgents as belligerents at an unduly early period, that as early as the 1st of May, Earl Russell wrote the letter of that date to the lords of the admiralty. The letter is as follows: The intelligence which reached this country by the last mail from the United States gives reason to suppose that a civil war between the Northern and Southern States of the Confederacy was imminent, if indeed it might not be considered to have already begun. Simultaneously with the arrival of this news, a telegram, purporting to have been conveyed to Halifax from the United States, was received, which announced that the President of the southern confedercy had taken steps for issuing letters of marque against the vessels of the Northern States. If such is really the case. it is obvious that much inconvenience may be occasioned to the numerous British vessels engaged in trade on the coast of the United States and in the Gulf of Mexico, and that timely provision should be made for their protection against undue molestation by reason of the maritime operations of the hostile parties; and Her Majesty has accordingly commanded me to signify to your lordships her pleasure that adequate re-inforcements should forthwith be sent to Her Majesty's squadron on the North American and West Indian station, so that the admiral in command may be able duly to provide for the protection of British shipping in any emergency that may occur. I need scarcely observe to your lordships that it might be right to apprise the admiral that, much as Her Majesty regrets the prospect of civil war breaking out in a country in the happiness and peace of which Her Majesty takes the deepest interest, it is Her Majesty's pleasure that nothing should be done by her naval forces which should indicate any partiality or preference for either party in the contest that may ensue.1 Appendix to British Case, vol. iii, p. 3. When I say that the foregoing letter is relied on, I must correct my. self. It is relied on only in a mutilated form. The third paragraph of the letter, which gives the key to its purpose, and supplies the motive of the writer, is, I regret to say, omitted-its place being supplied by asterisks-while the other paragraphs are given at length. When the letter is before us in its entirety, we see plainly that the purpose Earl Russell had in view was, not to give any advantage to the insurgents, but to secure protection to British shipping in case the invitation of the confederate president should have the effect of letting loose a swarm of privateers in the American waters. There can, however, be no doubt that, prior to the issuing of the Queen's proclamation of neutrality, Her Majesty's ministers, having become acquainted with the relative position of the two parties, and seeing plainly that this was no ordinary revolt, and that insurrection had assumed the form of organized government and of organized warfare, and looking to the dimensions the contest was about to take, had come to the conclusion that it would be impossible to withhold from the insurgent government the character and rights of belligerents. At the time the letter last cited was written, nothing was known beyond the fact that the confederate government were preparing to issue letters of marque; but on the ensuing day, the 2d, came the news that President Lincoln had proclaimed a blockade of all the Southern ports, though the terms of the proclamation were not yet known. Hereupon the government, in anticipation of any emergency that might arise, adopted the constitutional course of consulting the law-officers of the Crown. "Her Majesty's government heard the other day," said Lord John Russell in the House of Commons on the 2d of May That the confederated States have issued letters of marque, and to-day we have heard that it is intended there shall be a blockade of all the ports of the Southern States. As to the general provisions of the law of nations on these questions, some of the points are so new as well as so important that they have been referred to the awofficers of the Crown for their opinion, in order to guide the government in its instructions both to the English minister in America and the commander-in-chief of the naval squadron. Her Majesty's government has felt that it was its duty to use every possible means to avoid taking any part in the lamentable contest now raging in the American States. Nothing but the imperative duty of protecting British interests, in case they should be attacked, justifies the government in at all interfering. We have not been involved in any way in that contest, by any act or giving any advice in the matter, and, for God's sake, let us, if possible, keep out of it. On the 6th of May Lord John Russell stated in the House of Commons that the law-officers and the government had come to the conclusion that, according to principles which seemed to them to be just, the Southern Confederacy must be treated as a belligerent.3 A dispatch to Lord Lyons of the same day, in which Earl Russell develops his views on the subject, is worthy of a wise and considerate statesman: MY LORD: Her Majesty's government are disappointed in not having received from you, by the mail which has just arrived, any report of the state of affairs and of the prospects of the several parties, with reference to the issue of the struggle which appears, unfortunately, to have commenced between them; but the interruption of the communication between Washington and New York sufficiently explains the non-arrival of your dispatches. The accounts, however, which Her Majesty's consuls at different ports were enabled to forward by the packet, coincide in showing that, whatever may be the final result of See Case of the United States, p. 51. 2 Hansard, vol. clxii, p. 1378; United States Documents, vol. iv, p. 482. what cannot now be designated otherwise than as the civil war which has broken out between the several States of the late Union, for the present, at least, those States have separated into distinct confederacies, and, as such, are carrying on war against each other. The question for neutral nations to consider is, what is the character of the war; and whether it should be regarded as a war carried on between parties severally in a position to wage war, and to claim the rights and to perform the obligations attaching to belligerents. Her Majesty's government consider that that question can only be answered in the affirmative. If the government of the northern portion of the late Union possesses the advantages inherent in long-established governments, the government of the southern portion has, nevertheless, duly constituted itself, and carries on, in a regular form, the administration of the civil government of the States of which it is composed. Her Majesty's government, therefore, without assuming to pronounce upon the merits of the question on which the respective parties are at issue, can do no less than accept the facts presented to them. They deeply deplore the disruption of a confederacy with which they have at all times sought to cultivate the most friendly relations; they view with the greatest apprehension and concern the misery and desolation in which that disruption threatens to involve the provinces now arrayed in arms against each other; but they feel that they cannot question the right of the Southern States to claim to be recognized as a belligerent, and, as such, invested with all the rights and prerogatives of a belligerent.1 Whether the determination to acknowledge the Confederate States as belligerents was come to a few days too soon or not, is a matter on which there may possibly be a difference of opinion. But that, on this account, British statesmen, acting under an anxious sense of duty, in furtherance of what they believed to be a just and necessary policy, should be publicly accused of having been influenced by the sinister design of promoting the interests of the one party at the expense of the other, while pretending simply to fulfill the duties incidental to their position toward both parties, is a painful thing. The world must judge between the accusers and the accused. Whether the resolution was come to too soon or not, it was not acted upon till the events which rapidly supervened could leave no doubt on the minds of Her Majesty's ministers as to issuing the proclamation of neutrality. On the 10th of May, a dispatch was received from Lord Lyons, containing a copy of the proclamation of President Davis as to issuing letters of marque, and a copy of that of President Lincoln, declaring that southern privateers should be treated as pirates, and announcing the blockade of the southern ports." The British government contends, and, as it seems to me, most justly, that when, by declaring the southern ports blockaded, the President openly acknowledged the existence of a civil war, and thereby recognized the Confederate States as belligerents in the face of the world, he thereby rendered it not only the right but the duty of the British government to treat them as such. That it became the right of Her Majesty's government so to treat them can admit of no possible doubt; no jurist, I am satisfied, will assert the contrary. The pretension that the Federal Government could treat the contest as a war, so as to declare a blockade, and thereby exclude neutral nations from access to the blockaded ports for the purpose of trade, while neutral governments, on the other hand, were not entitled to treat the war as one going on between two belligerent powers, is a proposition which is, I say it with all respect for Mr. Adams, really preposterous. Applying the principles laid down by the editor of Wheaton, in the note which I have quoted at length, as well as by the other eminent jurists to whom I have referred, can any one doubt that Her Majesty's government were fully justified in recognizing the belligerent character United States Documents, vol. i, p. 37. of the Confederate States? When the war between the two parties to the contest became extended to the ocean, the interests of maritime nations, and more especially of Great Britain, with its extensive commerce with the ports of both Southern and Northern States, became at once seriously involved. Between Great Britain and the southern ports there. was the constant intercourse of an active and extensive commerce. The British ship-owners and merchants had a right to look to the government for protection to ships and cargoes, if interfered with, in time of peace, in any way not warranted by international law. It was the duty of Her Majesty's ships of war stationed on the neighboring naval stations, or detached from them, to afford that protection. So long as the war was not acknowledged by Her Majesty as a legitimate war, any interference by either belligerent with a British ship might have proved the occa sion of some serious collision. With the recognition by Her Majesty of the war, all her subjects would know that the blockade must be treated as a lawful one, and that any trade attempted to be carried on with the blockaded ports would be at the peril of the parties attempting it. Unless the blockaded ports were treated as the ports of a belligerent, there could be no lawful blockade. The blockade of its own ports by a state, to the exclusion of those who have a right to trade with its subjects, is a thing unknown and unheard of. The subjects of Great Britain had, by existing treaties, the right of trading with those of the United States. If the citizens of the Southern States were still to be looked upon as citizens of the United States, British merchant-ships had a right of free access to the southern ports notwithstanding the blockade. Nor could the British government deprive them of this right, or refuse them its protection if forcibly interfered with. The effect of a blockade in the disturbance of contracts previously made makes it of the utmost importance to the commercial world to have the earliest notice of the fact, and of the recognition of it by the gov ernment; the more so as it has been considered that official notice of a blockade to a government is sufficient notice to its subjects. All these important considerations appear to me to show, beyond the possibility of dispute, that it becomes the duty of a neutral government, when it is made aware of the fact of a blockade, to give notice of it to its subjects at the very earliest moment. The alternative of refusing to acknowledge the war as a war between two belligerent powers, was therefore to refuse to acknowledge the blockade. Would the United States have preferred that Great Britain should adopt this alternative? By establishing the blockade, therefore, the Government of the United States made it, as I have said, not only the right but the duty of Her Majesty's government to acknowledge the belligerency of the contederates, and thus to give to the war, so far as British subjects were concerned, the incidents which attach to war, as respects the relative rights and obligations of belligerents and neutrals. The policy of the government was explained and justified by Lord Russell in a letter to Mr. Adams, of the 4th May, 1865: Let me remind you that when the civil war in America broke out so suddenly, so violently, and so extensively, that event, in the preparation of which Great Britain had no share, caused nothing but detriment and injury to Her Majesty's subjects; Great Britain had previously carried on a large commerce with the Southern States of the Union, and had procured there the staple which furnished materials for the industry of millions of her people. Had there been no war, the existing treaties with the United States would have secured the continuance of a commerce mutually advantageous and desirable. But what was the first act of the President of the United States? He proclaimed on the 19th of April, 1861, the blockade of the ports of seven States of the Union. But he could lawfully interrupt the trade of neutrals to the Southern States upon one ground only, namely, that the Southern States were carrying on war against the Government of the United States; in other words, that they were belligerents. Her Majesty's government, on hearing of these events, had only two courses to pursue, namely, that of acknowledging the blockade, and proclaiming the neutrality of Her Majesty, or that of refusing to acknowledge the blockade, and insisting upon the the rights of Her Majesty's subjects to trade with the ports of the South. Her Majesty's government pursued the former course as at once the most just and the most friendly to the United States. It is obvions, indeed, that the course of treating the vessels of the Southern States as piratical vessels, and their crews as pirates, would have been to renounce the character of neutrals, and to take part in the war; nay, it would have been doing more than the United States themselves, who have never treated the prisoners they have made either by land or sea as rebels and pirates, but as prisoners of war, to be detained until regularly exchanged. So much as to the step, which you say your Government can never regard "as otherwise than precipitate,” of acknowledging the Southern States as belligerents. It was, on the contrary, your own Government which, in assuming the belligerent right of blockade, recognized the Southern States as belligerents. Had they not been belligerents, the armed ships of the United States would have had no right to stop a single British ship upon the high seas.1 But it is said that the recognition was premature, because, when it was made, the official announcement of the blockade had not yet been received. What if this had been so? The blockade existed in fact; it was known to the British government; and it was important to Her Majesty's subjects that it should be made known to them at the earliest possible moment. But this assumption, rashly made in the case of the United States, turns out to be incorrect. The facts stood thus: The proclamation of the President with regard to the ports of the seven States was issued on the 19th of April. It was followed by a similar proclamation of the 27th, as to the ports of North Carolina and Virginia. The blockade was effectually established on the 30th. The issuing of the proclamations was communicated to Lord Lyons, the minister of Great Britain at Washington, on the 29th. On the 1st of May, Mr. Seward, the Secretary of State of the United States, writes to him as follows: The so-called Confederate States have waged an insurrectionary war against this Government. They are buying and even seizing vessels in several places for the purpose of furnishing themselves with a naval force, and they are issuing letters of marque to privateers to be employed in preying on the commerce of this country. You are aware that the President has proclaimed a blockade of the ports included within the insurgent States. All these circumstances are known to the world. On the 3d of May the proclamation of the blockade, which had appeared in the Boston newspapers, was published in the London newspapers. It turned out afterward that there were inaccuracies in the version thus given by the Boston newspapers; but the substance of the thing remained the same; there was no doubt that the blockade had been declared. On the 5th of May, the government received a letter of the 23d of April from their consul at New York, transmitting a copy, correct in all essential particulars, of the proclamation of the blockade, as also a complete copy of that of President Davis, inviting applications for letters of marque. On the 10th of May, complete copies of both proclamations were received from the British minister at Washington. 3 In the mean time, a copy of the President's proclamation of the 19th 'United States Documents, vol. i, p. 295. 2 Appendix to British Case, vol. iii, p. 12. |