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trality did not create, nor purport to create, any new prohibitions. In England the sovereign cannot, by proclamation, either enact laws or abrogate them; all that he can do is to make public the provisions of existing laws, and enforce them in such a manner as may be necessary. The effect of this proclamation was solely to warn British subjects that they would incur, by doing certain things, penalties imposed by the law of nations, against which their goverument would not protect them, and, by doing certain other things, penalties imposed by the municipal law of Great Britain, which the government would enforce against them. But Her Majesty neither did nor constitutionally could undertake, by issuing it, any international obligations toward either bellige rent beyond such as are common to all neutral powers. It has been the practice in the United States to issue proclamations, different, perhaps, in phraseology, but in substance the same. In these, obedience to the law of nations is "enjoined ;" the carriage of contraband and breaches. of blockade are denounced as "misconduct," and warning is given that persons "so misconducting themselves" will do it at their peril. But the American government does not appear to have understood that by these warnings it bound itself to prohibit or even to discountenance the acts thus denounced, or to interpret with any peculiar strictness its own neutral duties under the law of nations.1

KNOWLEDGE OF FACTS IMPUTED TO THE BRITISH GOVERNMENT.

ish government.

It is not material to pursue the question how far either the transactions of the confederate government and its agents, or those Knowledge of facts of the Government of the United States and its agents, in imputed to the Britrelation to the purchase and transportation of arms and munitions of war, could have been known, by inquiry, to the government of Great Britain. Had they been known to it, no obligation to prevent them would have arisen; no obligation, therefore, arose to prosecute inquiries respecting them. It is said that the appointment of the confederate agents, their acts, and the powers intrusted to them, were open and notorious, and that, "if there was any pretense of concealment at the outset, it was soon abandoned." But it appears from the very documents relied on, that these agents took the greatest pains to keep all the details of their proceedings secret.3 "The United States ministers to England, France, and Belgium," wrote one of them in July, 1861, "have been very active in their endeavor to discover what the agents of the confederacy are effecting. They have agents employed for no other purpose, and it is of the highest importance that these should be kept in ignorance of all the acts of any agent of the confederacy. Any person that has ever become acquainted with Europe from personal experience knows how difficult it is for a stranger to keep his actions secret when spies are on his path." And, in March, 1862, the same agent writes, "I beg to suggest to the department the importance of everything relating to these shipments being kept in secret," adding, as before, that his "steps are narrowly watched by the agents of the United States." Her Majesty's government did not resort, and

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See President Washington's proclamation in 1793, (Appendix to British case, vol. v, p. 237,) and Mr. Jefferson's subsequent letter, referred to above, p. 49, and President Grant's proclamation, issued at the commencement of the late war between France and Germany. (Appendix to case of United States, vol. vii, p. 43.)

Case of the United States, p. 221.

ว Appendix to case of the United States, vol vi, p. 34. Ibid., p. 70.

[61] it certainly was not bound to resort, to the *means which are here stated (whether truly or not) to have been employed by ministers of the United States; such knowledge as could be derived from secret information or intercepted letters it did not possess; and, in the unauthenticated statements which Mr. Adams, withholding the names of his informants, furnished from time to time to Earl Russell, it had no adequate ground for inquiry or action.

It may, however, be convenient, since the Government of the United States has charged Earl Russell with having neglected to make inquiry,. and contented himself with announcing a "condition of affairs at Nassau" which was "imaginary," to state what was actually done by Earl Russell upon the receipt of Mr. Adams's representation, what has been previously done, and what were the facts existing at the time.

The first dispatches received by the government from the colony relating to vessels under the confederate flag, or engaged in trade with the Confederate States, were dated the 21st of June and the 8th of August, 1861, and forwarded representations which the administrator of the Bahamas had received from the United States consulate at Nassau, respecting the arrival at that port of merchant-vessels under the confederate flag, and the refusal of the masters to deposit their papers at the consulate. To these the administrator had replied that the facts alleged did not justify any interference with the vessels. A dispatch was also received from the governor of Barbados, reporting the pretensions which had been advanced on the same subject by the United States consul there, and the course of conduct which the governormeant to pursue. These dispatches were referred to the law-officers of the Crown, who reported that the governor had, in their opinion, taken a correct view of his position and duty, and might be instructed that no foreign consul had any jurisdiction or power to seize any vessel (underwhatever flag) within British territorial waters. With respect to supplies, even of articles clearly contraband of war (such as arms or ammunition) to the vessels of either party, the colonial authorities, in the opinion of the law-officers, could not interfere, unless anything should be done in violation of the foreign-enlistment act; and, as regards the supply of articles ancipitis usus, (such, for instance, as coal,) there was no ground for any interference whatever. Instructions were sent in this sense to the governors of the British West Indian colonies on the 15th of November, 1861.2

On the 1st October, 1861, Mr. Adams addressed a note to Lord John Russell, forwarding a copy of an intercepted letter from a Mr. P. Baldwin, living at Richmond, Virginia,3 "in the service of the insurgents," addressed to Mr. Adderly, of Nassau, from which he said that it appeared that Nassau had been made to some extent an entrepôt for the transmission of articles contraband of war from Great Britain to the ports held by the insurgents. It would be a great source of satisfaction to the Government of the United States, Mr. Adams said, to learn that Her Majesty's government felt itself clothed with the necessary power to prevent the exportation of such contraband for the colonies for the use of the insurgents, and that it would furnish the necessary instructions to the local authorities to attain that end. Mr. Baldwin's letter stated that the secretary to the navy of the Confederate States had ordered from England, to be shipped to Nassau, a quantity of arms and powder. Mr. Baldwin had recommended that they should be consigned

Case of the United States, pp. 232, 234.
2 See Appendix to British case, vol. ii, p. 89

3 Appendix to case of the United States, vol. i, p. 520.

to Mr. Adderly, asked him to take good care of them, said he would be with him soon, and would expect his aid in transshipping them. A copy of this communication was sent to the colonial office on the 8th of October, with a request that inquiry might be made, and Mr. Adams was so informed.

The reply of the administrator of the Bahamas, dated the 20th November, 1861, was received at the colonial office on the 31st December, 1861. The administrator forwarded a letter from Mr. Adderly, expressing his surprise that the United States Government should have countenanced the intercepting of his letter, and stating that no warlike stores had been consigned to him from Great Britain for transport to the Confederate States or to any other place. With this was inclosed a report from the receiver-general at Nassau, to the effect that no warlike stores had been received at that port, either from the United Kingdom or elsewhere, neither had any munitions of war been shipped from Nassau to the Confederate States. The substance of this information was conveyed to Mr. Adams in a note from Lord John Russell of the 8th of January, 1862.1 It was not, as stated in the case of the United States, "the announcement of an imaginary condition of affairs;" it was the simple truth at the time when the dispatch was written. The first arrival in the port of Nassau of a vessel suspected of being loaded with arms and munitions of war for the Confederate States was on the 9th of December, 1861. The vessel in question was the Gladiator.2 [62] * It was well known, undoubtedly, to the colonial authorities and to Her Majesty's government that, during a considerable part of the time for which the war lasted, much traffic was carried on between England and the islands of New Providence and Bermuda, and from thence to ports of the Confederate States; and the colonial newspapers during that period contained a multitude of advertisements offering for public sale the cargoes of vessels arrived or expected to arrive from various English ports, from Havre, New York, and other places. Foreign goods of all kinds being shut out from the Confederate States by the blockade of an immense sea-board, it was inevitable that such a commerce should spring up, and should be busily carried on by speculators and adventurers.

It was known also that some part of this trade consisted of arms and munitions of war. But these facts did not call for inquiry. It was not the duty of the British government to inquire who were interested in particular cargoes, or by whom particular vessels were owned or chartered. A vessel owned, or chartered, or controlled, wholly or in part, by a belligerent government, and employed in conveying merchandise from and to foreign ports, is liable to capture by the other belligerent as enemy's property, or as employed in the enemy's service, but she is not a transport in the ordinary or proper sense of the word, even though part of the cargo may consist of articles contraband of war. To repress the trade, so far as it was not a bona-fide trade between neutral ports, carried on in neutral ships, was the business, not of Great Britain, but of the United States; and they did repress it accordingly, by a strict and rigorous exercise of the belligerent rights of blockade, visit, search, and capture.

In truth, however, although it is several times implied, and once asserted, that the British government had been repeatedly informed, and repeatedly furnished with evidence, that some of these vessels were the

Appendix to case of the United States, vol. vi, p. 57; Appendix to British case, vol. v, p. 26.

Case of the United States, p. 226.

property of the confederate government, and ought to be regarded as "transports," no representation was ever made on this point till the month of January, 1864, when some copies of letters taken from a prize were sent by Mr. Seward to Mr. Adams. Nor was this information furnished as a ground for legal proceedings. Mr. Seward only intimated that, with the knowledge thus acquired by his Government, "the policy pursued by the United States in regard to assaults of the blockade, would be modified." It supplied, indeed, no evidence at all, except against two vessels which had been already captured. In fact, it was not known then, and it appears to be but imperfectly known even now, when the confidential papers and documents of the confederate government have fallen into the hands of the Government of the United States, what vessels the confederate authorities had control over or interest in at different times, whether as owners, charterers, or freighters, and how far their control or interest was shared by private speculators.

The case of the United States abounds throughout with assertions to the effect that Her Majesty's government must or ought to have been aware of all, and more than all, that became known during the later period of the war, or is known now. What might possibly have been discovered by an incessant and indiscriminate use of every means by which secret information may be obtained, Her Majesty's government cannot say; but a slight experience of administration, a very slender acquaintance with judicial records, is sufficient to convince any one that, in matters of this nature, secrecy or disguise, where there is any motive for securing it, is not difficult of attainment; and that a lurking and undisclosed interest in a ship, a cargo, a contract, a trading speculation, is a thing easy to conceal, and hard to detect. Such experience can hardly be quite unknown to the Government of the United States.

During the whole period of the civil war the sea was open to the United States, and they had access, in common with other nations at peace with Great Britain, to the workshops, markets, and sea-ports of this country. What military supplies they purchased here, how they paid for them, in what vessels and in what manner they transported them to America, were matters into which Her Majesty's government never deemed itself bound to make inquisition. The complaint they make against Great Britain is really this, that the liberty allowed to them was allowed equally to the Confederate States.2

1 Appendix to case of the United States, vol. i, pp. 741, 745.

2 The subjoined extract from the New York Times of September 21, 1870, shows the course pursued during the recent war between France and Germany:

"The steamer Lafayette, belonging to the Compagnie Transatlantique, sailed from this port for Havre yesterday afternoon, having on board a very large amount of ordnance and ordnance stores, together with upward of 250 French and Irish recruits, fully equipped and prepared to volunteer in the French provisional army against Prussia. Previous to the departure of the vessel, Mr. Johannes Rocsing, consul for the North German States in this city, visited the United States district attorney's office in Chambers street, and demanded the seizure of the Lafayette, on the ground that she was to be used to carry a military expedition against a country at peace with this government. It was found that there did not exist sufficient legal cause for the detention of the steamer, and the German consul then made a complaint against 133 of her passengers. He charged the latter, on information and belief, with being an armed and organized company, intended for warlike purposes against the Prussian states, in violation of the neutrality laws. His affidavit was prepared by Hon. A. H. Purdy, assistant district attorney, and was sworn to before Commissioner Betts. The complainant was unable to furnish the names of the émigrés, including the leaders, and the warrants for their arrest were accordingly filled out with fictitious names.

"After the German detectives announced their failure to recognize any of the expedi tionary party, Mr. McKenzie took a passenger-list, and used it in expelling from the

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* 1. RESTRICTIONS ON COALING AT NASSAU.

2. Order of 31ST JANUARY, 1862, IN RELATION TO NASSAU.

Her Majesty's government will not advert in detail to some minor complaints and inaccuracies which occur in this part of the case of the United States.

Restrictions on coaling at Nassau.

Two complaints, however, remain in connection with the matters referred to in the foregoing pages, which are treated as serious by the United States, though in the view of Her Majesty's government they have nothing to do with the questions referred to the tribunal.

One of these is founded on the regulation enforced by the colonial authorities at Nassau, that a belligerent government should not be suffered to store coal at that port for the use of its armed ships of war; the other, on the orders subsequently issued by Her Majesty's government, whereby the ships of war and privateers of both belligerents were prohibited from entering the ports or waters of the Bahama Islands, unless by special leave of the governor, or under stress of weather.

The circumstances under which the first of these two complaints arose are succinctly stated in Earl Russell's note to Mr. Adams of the 25th March, 1862.1 It will be observed that two vessels arrived at Nassau laden with coal which had been shipped at Philadelphia by order of the United States Navy Department; that the United States consul desired to store this coal for the use of ships of war under the flag of his gov

vessel all those whose names were not on it. Precisely eighty-three Frenchmen lost their passage in this manner. These were all bound for the French army. Their passage-tickets were to have been given to them by the French committee of this city, but had not been purchased at the time of their expulsion. They were quite indignant on account of the agent's maneuver, and were loath to leave the pier, trusting that they might get on board at the last moment. Among the passengers who were purchasers of tickets, and who remained on the Lafayette, were the leaders of the volunteers, and over 250 émigrés are destined for their native land. No attempt was made by the deputy marshals to interfere with arms and ammunition on the steamer, consisting of 120,000 rounds and several thousand Remington rifles. Mr. McKenzie was extremely dissatisfied with the action of the North German consul, and intimated his intention of bringing the matter before the proper authorities. The last seen of the Lafayette was off the Battery, at which time she was fast steaming out to sea. It was confidently reported that she was joined in the lower bay by the French corvette Latouche Tooville, Captain Bassett, with four guns on board and a crew of eighty men. "The Lafayette was to have sailed on Saturday last-her regular day-but was then detained by an order from the French minister of war at Paris, who desired that she should carry out certain munitions of war and supplies, intended, it is alleged, for the French army. Her mails were kept back until yesterday, and then left with the vessel. The supplies, &c., consisted of Remington breech-loaders, to the number of 6,000 cases-some persons say more-several million rounds of ammunition, a large number of revolvers and other small-arms, and a considerable quantity of provisions. She commenced taking in this portion of her cargo on Friday, and was engaged day and night to the hour of her departure, and even after she sailed a lighter arrived with cases of arms which came too late to be shipped.

"It is stated by some persons on the wharf, with one of whom our reporter conversed, that the cases have the marks of the ordnance officer at Governor's Island. It is not improbable that these arms were purchased of the United States Government, as Mr. McKenzie, the agent of the line, informed our reporter, on Monday, that this Government were fully aware of the purchase and proposed shipment of these arms, and offered no objection."

The New York and Havre line of steamers, of which the Lafayette was one, held at the time a contract with the French government for the carriage of the mails. In October, 1870, a telegram was received at New York from M. Cremieux, a member of the French provisional government, ordering that the steamers of this line should be held exclusively for freight to be forwarded on account of the government. Under this order the packets continued to carry arms and munitions of war in large quantities from the United States to France. It appears, further, from the recent trial at 1Appendix to case of United States, vol. i, p. 346.

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