tration is, in this connection, particularly invited to the fact that these instructions, numbered 136, contain nothing indicating a design on the part of the British Government to put itself in communication with the insurgent authorities, nothing to induce Mr. Seward to think that they were other than what, on their face, they purported to be, a communication from the Government of Great Britain to the Government of the United States, through the ordinary diplomatic channel. have been regarded as a cause of war. It is not improbable that the Arbitrators may be of opinion that the use of the British Legation at Washington for such a pur- The instructions to pose was an act which the United States would have been Lord Lyons might justified in regarding as a cause of war. It was, to say the least, an abuse of diplomatic privilege, and a violation, in the person of Her Majesty's Principal Secretary of State for Foreign Affairs, of the duties of neutrality which Her Majesty's Government was about to impose upon her subjects. Before relating what Lord Lyons did, under these instructions, it is necessary to pause in order that the Tribunal may be informed what Mr. Seward and Mr. Adams had been doing in the same *matter simultaneously with the proceedings which have been detailed. [69] Former Regotia Declaration of In the year 1854 the Government of the United States submitted to the principal maritime nations two propositions, soliciting their assent to them as permanent principles of interna- or the tional law. These propositions were, that free ships should Congress of Paris. make free goods; and that neutral property on board an enemy's vessel should not be subject to confiscation unless contraband of war. Great Britain, being then at war with Russia, did not act upon these propositions; but in the Congress which assembled at Paris when the peace of 1856 was made, Great Britain and the other nations, parties to the Congress, gave their assent to them, and to two other propositionsthe abolition of privateering, and the necessity of efficiency to the legalization of a blockade. It was also agreed that the four propositions should be maintained as a whole and indivisible, and that the Powers who might accede to them should accede to them as such.1 Great Britain then joined in inviting the United States to give its adhesion to the four indivisible points. The Washington Cabinet of that day replied that the United States was willing to assent to all the propositions, except the one relating to privateering, as being, in fact, recognitions of principles which had always been maintained by them; but that they could not consent to abolish privateering without a further agreement to exempt private property from capture on the high seas; and they proposed to amend the declaration of the Congress of Paris in that sense, and offered to give their adhesion to it when so amended. [70] In January, 1857, the proposals of the United States not having been acted upon, their Minister at London was directed to suspend negotiations until the new President, Mr. Buchanan, could examine the subjeet; and the suspension continued until after Mr. Lincoln was inaugurated. On the 24th of April, 1861, less than two months after Mr. Lincoln's accession to power, Mr. Seward resumed the suspended negotiations by instructing Mr. Adams (similar instructions being given to the Ministers of the United States to the other maritime powers) to give an unqualified 124th Protocol, April 16, 1856, Congress of Paris. S. Ex. 31-3 assent to the four propositions, and to bring the negotiation to a speedy and satisfactory conclusion. [71] Owing, probably, to the interruption in the communications between Washington and New York when the dispatch of April 24 was written, Mr. Adams does not appear to have been able to *communicate his instructions to Lord John Russell before the 21st of May. He then informed Lord John that he had received instructions to negotiate, which he would "submit to his consideration if there was any disposition to pursue the matter further." Lord John Russell "expressed the willingness of Great Britain to negotiate, but he seemed to desire to leave the subject in the hands of Lord Lyons, to whom he intimated that he had already transmitted authority to assent to any modification of the only point in issue which the Government of the United States might prefer." He did not inform Mr. Adams that he also proposed to open negotiations with the insurgents, nor had Mr. Adams reason to suspect that fact. Matters were thus suspended in London, to enable Lord Lyons to work out Lord John Russell's instructions at Washington and in Richmond. Lord Lyons received the dispatches of the 18th of May on the 2d of June, and at once conferred with Mr. Mercier. It was agreed that they should try to manage the business so as to prevent "an inconvenient outbreak from the Government "3 of the United States. He then notified Earl Russell of what they proposed to do, and informed him of the instructions to Mr. Adams on this subject. He also intimated that it would be unreasonable to expect that the insurgents should abandon privateering, unless "in return for some great concession." What concession remained to be given except recognition of national independence? Lord Lyons's inter ard. [72] It was not until the 15th of June that Lord Lyons and Mr. Mercier communicated the purport of their instructions to Mr. Sewview with Mr. Sew- ard in a joint interview, of which we have Mr. Seward's account and Lord Lyons's account, both dated the 17th of June. These accounts do not differ materially. The action as to the British Minister was this: Lord Lyons stated that he was instructed to read a dispatch to Mr. Seward and to leave a copy with him if desired. Mr. Seward refused to permit the dispatch to be read officially, unless he could first have an opportunity to acquaint himself with its contents. Lord Lyons handed him Lord John Russell's No. 136 for the purpose of unofficial examination. Mr. Seward saw that it spoke of the insurgents as belligerents, and on that ground refused to permit it to be officially communicated to him. He added that he preferred to treat the ques tion in London, and Lord Lyons left with him, unofficially, a copy of Lord John Russell's 136, in order that he might more intelligently instruct Mr. Adams. The instructions thereupon written to Mr. *Adams are in the [73] same tone. Mr. Seward expresses regret that the British and French governments should have seen fit to take joint action in the matter; he refuses to admit that there are two belligerent parties to the struggle; he expresses regret that Great Britain did not await the arrival of Mr. Adams before instructing Lord Lyons, as Mr. Adams's instructions covered the whole ground; but be nowhere manifests a knowledge of the purpose of Great Britain to enter into communica 1 Vol. 1, page 52. 2 Vol. I, page 55. 3 Vol. I, page 56. tions with the insurgents at Richmond. That was studiously concealed from him. Termination of United States. with The negotiations were then transferred again to London, to the "profound surprise" of Mr. Adams. They were protracted there until the 19th of August, when Lord Russell informed negotiations Mr. Adams that Great Britain could only receive the assent of the United States to the Declaration of Paris upon the condition that Her Majesty should not thereby "undertake any engagement which should have any bearing, direct or indirect," upon the insurrection. The United States declined to be put upon a different footing from that of the forty-two independent Powers enumerated in Lord Russell's No. 136 to Lord Lyons, whose assent had been received without conditions, and the negotiations dropped. [74] *The arbitrators will thus perceive that Her Majesty's Government, having recognized the insurgents as belliger Great Britain de vateering. ents, felt itself bound to receive the assent of the United sired to legalize priStates to the declarations of the Congress of Paris only conditionally, so as to have no bearing upon letters of marque that might be issued by the insurgents. But they will also observe that the two steps of the recognition of belligerency and the invitations to assent to the second and third clauses in the declarations were taken simultaneously, in accordance with a previous arrangement for joint action; and it is not impossible that they may come to the conclusion that Her Majesty's Government, when the insurgents were recognized as belligerents, contemplated that they would proceed to issue letters of marque, and intended to legalize those letters in the eye of British law, and to countenance the bearers of them in the destruction of American com merce. Meanwhile Lord Lyons had not forgotten his instructions to secure the assent of Mr. Jefferson Davis to the second and third rules of the Declaration of Paris. [75] Richmond. On the 5th of July he sent instructions to Mr. Bunch, British Consul at Charleston, to "obtain from the existing government in Negotiations at those [the insurgent] States securities concerning the proper treatment of neutrals." He inclosed a copy of *Lord Russell's 136. He advised Mr. Bunch not to go to Richmond, but to communicate through the governor of the. State of South Carolina; and he accompanied this with "a long private letter on the same subject." The nature of that private letter may be gathered from what Mr. Bunch did. He put himself and his French colleague at once in communication with a gentleman who was well qualified to serve his purpose, but who was not the governor of South Carolina. They showed to this agent Lord John Russell's dispatch to Lord Lyons, and Lord Lyons's official and private letters to Mr. Bunch, and they told him that the step to be taken was one of "very great significance and importance." The agent asked them whether they "were prepared to receive an official act which should be based upon their request, thus giving to the Confederate Government the advantage before the world of such an implied recognition as this would afford." They replied that they "wished a spontaneous declaration;" "that to make this request the declared basis of the act would be to proclaim this negotiation, and the intense jealousy of the United States was such that this would be followed by the revocation of their exequaturs," which they wished to avoid; that could 1 Vol. I, page 71. 2 Vol. I, page 123. 3 Manuscript in Department of State. 3 [76] only look upon this step as the initiative toward a recognition, yet the object of their Government being to reach that recognition gradually, so as not to give good ground for a breach, this indirect way was absolutely necessary." And they added, "All we have a right to ask is that you shall not give publicity to this negotiation; that we nor our Governments should be upon the record.” Their agent, being thus possessed of their views, went to Richmond, with Lord Lyons's letters and Lord Russell's dispatch, and while there he secured the passage, in the insurgent congress, of resolutions partially draughted by Mr. Jefferson Davis, which declared their purpose to observe principles toward neutrals similar to the second and third rules of the Declaration of Paris; that blockades to be binding must be effectual; and that they "maintained the right of privateering." In communicating this result to Lord Lyons, Mr. Bunch said, "The wishes of Her Majesty's Government would seem to have been fully met, for, as no proposal was made that the Confederate Government should abolish privateering, it could not be expected that they should do so of their own accord, particularly as it is the arm upon which they most rely for the injury of the extended commerce of their enemy."3 The United States think that the tribunal of Arbitration will agree with Mr. Bunch, that it was not expected that the insurgents would abolish privateering. [77] The Tribunal of Arbitration cannot fail to observe that the propositions which were made in these negotiations to the Government of the United States were communicated to the insurgents, while pains were taken to conceal from the United States the fact that negotiation's were opened at Richmond; that Earl Russell refused to receive the assent of the United States to the Declaration of Paris, except upon conditions derogatory to their sovereignty; and that Lord Lyons was instructed to secure the assent of the Government of the United States to the four principles laid down by the Declaration of Paris, while he was instructed, as to the insurgents, to secure their assent only to the second, third, and fourth propositions; and had no instructions to take steps to prevent privateering or to induce the insurgents to accept the first rule in the Declaration of Paris, although it had been agreed that the rules should be maintained as a whole and indivisible, and that the Powers who might accede to them should accede to them as such. The practical effect of this diplomacy, had it been successful, would have been the destruction of the commerce of the United States, (or its transfer to the British flag,) and the disarming a principal weapon of the United *States upon the ocean, should a continuation of this course of [78] insincere neutrality unhappily force the United States into a war. Great Britain was thus to gain the benefit to its neutral commerce of the recognition of the second and third articles, the rebel privateer cruisers were to be protected, and their devastation legalized, while the United States were to be deprived of a dangerous weapon of assault upon Great Britain. When the whole story of these negotiations was understood by Mr. Adams, he wrote to his Government as follows:4 "It now appears plainly enough that he wanted, from the first, to get the first article of the Declaration of Paris out of the nego tiation altogether, if he could. But he did not say a word of this to me at the outset, neither was it consistent with the position hereto Mr. Adams's comments. 1 Unpublished manuscript in the Department of State at Washington. fore taken respecting the necessity of accepting the declaration 'pure and simple.' What I recollect him to have said on the 18th of May was, that it had been the disposition of his Government, as communicated to Lord Lyons, to agree upon almost any terms, respecting the first article, that might suit the Government of the United States. When reminded of this afterward, he modified the statement to mean that the [79] article might be omitted altogether. It now *turns out, if we may judge from the instructions, that he did not precisely say either the one thing or the other. Substantially, indeed, he might mean that the general law of nations, if affirmed between the two Govern ments, would, to a certain extent, attain the object of the first article of the Declaration of Paris, without the adoption of it as a new principle. But he must have known, on the day of the date of these instructions, which is the very day of his first conference with me, and four days after the issue of the Queen's Proclamation, that the Government of the United States contemplated, in the pending struggle, neither encouraging privateers nor issuing letters of marque; hence that such a proposition would only complicate the negotiation for no useful purpose whatever. Besides which, it should be borne in mind that the effect, if adopted, would have been, instead of a simple adhesion to the Declaration of Paris, to render it necessary to reopen a series of negotiations for a modification of it between all the numerous parties to that instrument. Moreover, it is admitted by his Lordship that no powers had been given to make any convention at all-the parties could only agree. Yet, without such powers, what was the value of an agreement? For the Declaration of Paris was, by its very terms, binding only be[80] tween parties who acceded to it as a whole. Her Majesty's Government thus placed themselves in the position of a party which proposes what it gives no authority to perform, and which negotiates upou a basis on which it has already deprived itself of the power to conclude. "How are we to reconcile these inconsistencies? By the terms of the Queen's Proclamation his lordship must have been aware that Great Britain had released the United States from further responsibility for the acts of its new-made belligerent that was issuing letters of marque, as well as from the possible offenses of privateers sailing under its flag; and yet. when the Government of the United States comes forward and declares its disposition to accept the terms of the Declaration of Paris, pure and simple, the Government of Her Majesty cannot consent to receive the very thing that they have been all along asking for, because it might possibly compel them to deny to certain privateers the rights which may accrue to them by virtue of their voluntary recognition of them as belonging to a belligerent power. Yet it now appears that, on the 18th of May, the same Government was willing to reaffirm the law of nations, which virtually involved the very same difficulty on the one hand, while on the other it had given no powers to negotiate a new con vention, but contemplated a simple adhesion to the old declaration [81] on the part of the United States. The only way by which I can explain these various involutions of policy with a proper regard to Lord Russell's character for straightforwardness, which I have no disposition to impugn, is this: He may have instructed Lord Lyons prior to the 18th of May, the day of our first conference. I certainly received the impression that he had done so. Or he may have written the paper before one o'clock of that day, and thus have referred to the act as a thing completed, though still within his power, in order to get rid of the proposition to negotiate directly here. Of that I do not pretend to judge. |