had concluded a contract of sale with the Danish government, then at war with the German Confederation, but the conditions of the contract not having been observed, the Danish officer, to whom the Sphinx was to have been handed over at Bordeaux, refused to receive her. Arman, however took advantage of this contract to get the vessel out of French waters under the name of the Stoerkodder, and sent her to Copenhagen under the pretence of again submitting her to inspection there. The Danish government having persisted in their refusal to purchase the vessel, he obtained permission to bring her back, rechristened as the Olinde, under Danish colors to Bordeaux. On arriving in French waters, off the island of Houat, on the coast of Brittany, she stopped to receive from another steamer, by a preconcerted arrangement, a crew, with an armament of artillery and munitions of war, hoisted the confederate flag, and, changing her name for the third time to that of the Stonewall, left the French waters for Ferrol, in Spain, where she obtained permission to remain and make some necessary repairs. These proceedings were the subject of energetic remonstances at Paris and Madrid, and would, in all probability, have given rise to much more, had not the close of the civil war deprived the question of any practical interest it might otherwise have had, the Stonewall having been unable to commit any acts of warfare. The American Government wisely preferred to drop its grievances, as Mr. Seward explains in a letter to Mr. Bigelow, United States minister at Paris, dated 13th March, 1865: Le gouvernement a déjà, contre les puissances maritimes impliquées dans cette affaire, des causes de plainte assez nombreuses et assez graves. Il préfère néanmoins entretenir la paix, l'harmonie et l'amitié avec ces puissances, plutôt que de rechercher de nouvelles occasions de querelle, et il s'estimera très-heureux si les appréhensions que l'affaire actuelle a soulevées ne sont pas justifiées. Les circonstances semblent d'ailleurs favoriser les vœux du gouvernement à cet endroit. Nos derniers avis télégraphiques nous affirment que le Stonewall est absolument hors d'état de tenir la mer, et que, pour cette raison et pour d'autres, les criminels qui le possèdent cherchent à s'en débar rasser. From this narrative it will be seen how very different was the view taken of these circumstances by the Government of the United States, at the time when they occurred, from the color now sought to be put upon them by the American argument. The running of the blockade, as it is termed, by British vessels, and the use of the Bahamas and Bermuda and other islands, as Complaints of places by means of which the blockade-running might be blockade-running. facilitated, were, throughout the war, the cause of unceasing and loud complaint on the part of the United States Government. No doubt it was a very great annoyance to the United States; but it in reality afforded no legitimate cause of grievance. That, when the arms and munitions of war necessary to the confederates had been purchased in Europe, means should be sought to convey them to the purchasers was in the nature of things. That the high rates of freight which, owing to the vital importance of obtaining these supplies, the confederate government were willing to pay, should have induced ship-owners to run the risk of capture and confiscation, and that the high premiums for insurance which the owners of ships and cargoes engaged in this traffic were willing to pay, should have tempted insurers to undertake the risk of insuring them, cannot, knowing as we do the boldness of mercantile speculation and enterprise, at all surprise us. Accordingly, from a very early period of the war, vessels were employed to run the blockade with cargoes of articles of warlike use. Before long a systematic traffic of this description became regularly established. As the nature of the southern coast and the local peculi arities of its ports made it extremely difficult for ocean-going vessels to avoid pursuit and capture in endeavoring to enter them, advantage was taken of the proximity of the Bahama Islands and Bermuda to the southern ports to transship the cargoes sent from England, at these places, into fast steamers of light draught, which, taking advantage of shallow waters into which they could not easily be pursued, could thus find means of eluding the hostile cruisers. By these means, though ships and cargoes to the value, it is said, of £3,000,000 sterling fell into the hands of the Federals, a very large quantity of arms and articles, contraband of war, found their way to the confederate government. The first question which presents itself is, was the traffic unlawful? So far unlawful undoubtedly, by the law of nations, as between the rader and the blockading belligerent, that if the belligerent could catch the vessel in the act of breaking the blockade, vessel and cargo would become lawful prize; but by the law of nations involving no ulterior liability. By the municipal law not prohibited, and therefore not unlawful-not even sufficiently so, as has been lately held by Lord Westbury in the case of ex parte Chavasse in re Grazebrook, and by Dr. Lushington in that of the Helen, to avoid a contract made in contemplation of such a transaction. How as between the blockading belligerent and the country of the blockade-running trader? Clearly and indisputably without consequence of any sort. It has never been contended by any one that a neutral state incurred any responsibility by the general law of nations by reason of any violation of neutrality by its subjects, in carrying on trade with a blockaded port. It is therefore clear that a neutral government is not bound to prohibit such trade by its municipal law. With the single exception of Denmark, if my memory does not deceive me, no European state has prohibited it. The United States have no law which does so. Such being the state of the international law of the civilized world and the municipal law of Great Britain on the breaking out of the war, not only was it not incumbent on Great Britain as a duty to alter its law, with a view to prohibiting its subjects from trading with the blockaded ports, but to have done so would have been, as it seems to me, in direct contravention of a fundamental principal of neutrality—namely, that a neutral power shall not, with a view to a pending war, except so far as may be necessary for the fulfillment of its own obligations as a neutral, alter its law, or make new regulations, having the object or effect of favoring one belligerent at the expense of the other. But that such would have been the effect of an alteration of the law, as desired by the United States, by passing an act to make blockade-running penal, is manifest. The United States, as between them and their adversaries, were masters of the seas, and had their ports open, and could, therefore, freely receive the cargoes of arms and munitions of war which were being daily supplied to them. To the confederate government the blockade-runner afforded the only means of obtaining the arms with which he was to fight for independence. An alteration of the law would have been to place him helpless in the power of his enemy. Would it have been consistent with neutrality to alter the law at such a time, and with the certainty of such a result? The right of a belligerent to exclude the commerce of a neutral from a blockaded port is too well established to be shaken; but it is the most odious and arbitrary form in which the freedom of the neutral can be interfered with, and I can see, therefore, 111 Juris. N. S., p. 400. 1 Law Rep., Adm. and Eccl., 1. no reason why a government should interfere to make the exercise of the power more productive of detriment to the commerce of its subjects than it necessarily carries with it at present. But if any alteration of the law is to take place, it should be in time of peace, not when the change would prove fatal to one of the combatants, and insure victory to the other. Earl Russell put the matter on the right footing when, in answer to a remonstrance of Mr. Adams, on the 17th of May, 1862, he replied: If the British government, by virtue of the prerogative of the Crown, or by authority of Parliament, had prohibited and could have prevented the conveyance in British merchant-ships of arms and ammunition to the Confederate States, and had allowed the transport of such contraband of war to New York and to other Federal ports, Her Majesty's government would have departed from the neutral position they have assumed and maintained. If, on the other hand, Her Majesty's government had prohibited and could have prevented the transport of arms and ammunition to both the contending parties, they would have deprived the United States of a great part of the means by which they have carried on the war. The arms and ammunition received from Great Britain, as well as from other neutral countries, have enabled the United States to fit out the formidable armies now engaged in carrying on the war against the Southern States, while, by means of the blockade established by the Federal Government, the Southern States have been deprived of similar advantages. The impartial observance of neutral obligations by Her Majesty's government has thus been exceedingly advantageous to the cause of the more powerful of the two contending parties.1 The same reason applies to the frequent use of the ports of the Ba hamas and Bermuda as entrepôts for the blockade-running cargoes, and the transshipment of the latter into lighter craft. There was nothing in all this in any way contrary to law. Vessels with cargoes of arms intended for the Southern ports had a perfect right to enter, remain, and quit, when and as they thought proper. If this traffic, suddenly springing up, soon assumed such large dimensions, the cause was to be found in the forced interruption of the trade with the Southern ports through the blockade. Here again a neutral government could not be called upon to make new laws to prevent the neutral trader from availing himself of such means, not inconsistent with law, as circumstances placed at his disposal in seeking to compensate himself for the restraints imposed on his commercial freedom. When the ordinary course of things is disturbed by intervening force, the tendency is always, in some shape or other, to a restoration of the equilibrium. Unfortunate. ly, instead of seeing in all this only the natural effect of commercial speculation and enterprise, the United States Government, in the excitement of the time, saw in it nothing but hostility to the cause of the Union. Impressed with this idea, Mr. Seward writes to Mr. Adams, on the 11th of March, 1862 : Information derived from our consul at Liverpool confirms reports which have reached us that insurance companies in England are insuring vessels engaged in running our blockade, and even vessels carrying contraband of war. This is, in effect, a combination of British capitalists, under legal authority, to levy war against the United States. It is entirely inconsistent with the relations of friendship which we, on our part, maintain toward Great Britain; and we cannot believe that Her Britannic Majesty's government will regard it as compatible with the attitude of neutrality proclaimed by that government. Its effect is to prolong this struggle, destroy legitimate commerce of British subjects, and excite in this country feelings of deep alienation. Pray bring this subject to the notice of Earl Russell, and ask for intervention in some form which will be efficient. Our consuls in London and Liverpool can furnish you with all the information you will require. United States Documents, vol. i, pp. 536, 537. 2 United States Documents, vol. i, p. 720. Mr. Adams, in a letter to Lord Russell of the 30th of December, 1862, complains in earnest language: It is a fact that few persons in England will now be bold enough to deny, first, that vessels have been built in British ports, as well as manned by Her Majesty's subjects, with the design and intent to carry on war against the United States; secondly, that other vessels owned by British subjects have been and are yet in the constant practice of departing from British ports, laden with contraband of war and many other commodities, with the intent to break the blockade and to procrastinate the war; thirdly, that such vessels have been and are insured by British merchants in the commercial towns of this kingdom, with the understanding that they are dispatched for that ille gal purpose. It is believed to be beyond denial that British subjects have been, and continue to be, enlisted in this kingdom in the service of the insurgents, with the intent to make war on the United States, or to break the blockade legitimately established, and to a proportionate extent to annul its purpose. It is believed that persons high in social position and in fortune contribute their aid, directly and indirectly, in building and equipping ships of war as well as other vessels, and furnishing money as well as goods with the hope of sustaining the insurgents in their resistance to the Government. To that end the port of Nassau, a colonial dependency of Great Britain, has been made, and still continues to be, the great entrepôt for the storing of supplies which are conveyed from thence with the greater facility in evading the blockade. In short, so far as the acts of these numerous and influential parties can involve them, the British people may be considered as actually carrying on war against the United States. Already British property valued at eight millions of pounds sterling is reported to have been captured by the vessels of the United States for attempts to violate the blockade, and property of far greater value has either been successfully introduced or is now stored at Nassau awaiting favorable opportunities. But that these were commercial speculations, and had no reference to any political sympathies, is plain, from the following letter from Mr. Morse, the United States consul-general, to Mr. Adams, of the 24th of the same month. After mentioning the different steamers engaged in the blockade-running, he says: The ownership of these steamers, the cargoes they carry out, and the manner of conducting the trade, is a question of much interest to Americans. During the early stages of the war the trade was carried on principally by agents sent over from the Confederate States, aided by a few mercantile houses and active sympathizers in this country. These agents, with their friends here, purchased the supplies, and procured steamers, mostly by charter, and forwarded the goods. But by far the largest portion of the trade, with perhaps the exception of that in small-arms, is now, and for a long time has been, under the management and control of British merchants. It is carried on principally by British capital, in British ships, and crosses the Atlantic under the protection of the British flag. Parties come from Richmond with contracts made with the rebel government by which they are to receive a very large percentage above the cost in confederate ports of the articles specified. British merchants become interested in these contracts, and participate in their profits or loss. I have seen the particulars of one such contract drawn out in detail, and have heard of others. There are good reasons for believing that a large portion of the supplies more recently sent to the aid of the insurgents has been sent by merchants on their own account. Several will join together to charter a steamer, and make up a cargo independent of all contractors, each investing as much in the enterprise as he may deem expedient, according to his zeal in the rebel cause, or his hope of realizing profit from the speculation. Again: some one will put up a steamer to carry cargo to a rebel port at an enormous rate of freight, or to ports on the Atlantic or Gulf coast, such as Bermuda, Nassau, Havana, Matamoras, &c., at a less freight, to be from there reshipped to such Southern ports as appears to afford the best opportunities for gaining an entrance. Ships bound on these voyages are, of course, not advertised, or their destination made known to the public. Their cargoes are made up of individual shipments, on account and risk of the shippers, or go into a joint-stock concern, on account and risk of the company, each member thereof realizing profit or suffering loss in proportion to the amount he invested in the adventure. Both steamers and cargoes are often, if not generally, insured in England "to go to America with liberty to run the blockade.” The views of Her Majesty's Government were set forth in a letter from Earl Russell to Mr. Adams: With regard to the "systematic plan” which you say has been pursued by Her MajUnited States Documents, vol. i, p. 729. - Ibid., p. 731. esty's subjects "to violate the blockade by steady efforts," there are some reflections which I am surprised have not occurred to you. The United States Government, on the allegation of a rebellion pervading from nine to eleven States of the Union, have now, for more than twelve months, endeavored to maintain a blockade of three thousand miles of coast. This blockade, kept up irregularly, but when enforced, enforced severely, has seriously injured the trade and manufactures of the United Kingdom. Thousands of persons are now obliged to resort to the poor-rate for subsistence, owing to this blockade. Yet, Her Majesty's government have never sought to take advantage of the obvious imperfections of this blockade, in order to declare it ineffective. They have, to the loss and detriment of the British nation, scrupulously observed the duties of Great Britain toward a friendly State. But when Her Majesty's government are asked to go beyond this, and to overstep the existing powers given to them by municipal and international law for the purpose of imposing arbitrary restrictions on the trade of Her Majesty's subjects, it is impossible to listen to such suggestions. The ingenuity of persons engaged in commerce will always, in some degree, defeat attempts to starve or debar from commercial intercourse an extensive coast inhabited by a large and industrious population. If, therefore, the Government of the United States consider it for their interest to inflict this great injury on other nations, the utmost they can expect is that European powers shall respect those acts of the United States which are within the limits of the law. The United States Government cannot expect that Great Britain should frame new statutes to aid the Federal blockade, and to carry into effect the restrictions on commerce which the United States, for their own purposes, have thought fit to institute, and the application of which it is their duty to confine within the legitimate limits of international law.' It is hardly worth while to dwell on the attempts made to show partiality and unfair conduct on the part of the authorities at Nassau. A Mr. Heyliger appears to have been sent there as the agent of the confederates, and a letter from, him to the confederate government of December 27, 1861, is quoted in the case of the United States,2 in which it is said, "We have succeeded in obtaining a very important modification of the existing laws, viz, the privilege of breaking bulk and transshipment." It is said in the case of the United States That modification was all that the insurgents wanted. That privilege converted the port of Nassau into an insurgent port, which could not be blockaded by the naval forces of the United States. Further stay of the United States vessels of war was therefore useless. The United States ask the tribunal to find that this act, being a permission from the British authorities at Nassau, enabling a vessel chartered by the insurgents, and freighted with articles contraband of war, to diverge from its voyage and to transship its cargo in a British port when not made necessary by distress, was a violation of the duties of a neutral. I pass by the admission contained in this passage that Nassau was being used by the United States vessels of war as a post of observation for the detection and pursuit of vessels carrying contraband of war to the South; in other words, as a base of naval operations. The explanation of the passage in Mr. Heyliger's letter, which I find in the British counter case and appendix, is simple enough. The customs regulations of the colony forbade the transshipment of goods in its ports or waters, unless they were landed for examination by the customs officers. There was nothing, however, to prevent their being at once reshipped in other vessels after being so landed and examined, and the receiver-general of the colony had power to grant permission for dispensing with the landing of the goods if he thought fit. It would seem that this permission had been customarily granted, as a matter of course, in the case of goods in transit. In conformity with this practice Messrs. Adderly & Co., of Nassau, applied to the receiver-general, shortly before the date of Mr. Heyliger's letter, for permission to transship the cargo of the Eliza Bonsell, stated to consist of assorted merchandise, to another vessel, the Ella Warley, bound ostensibly for St. John's, New Brunswick. 1 United States Documents, vol. i, p. 723. |