Hasty recognition of rebel belligerency : and our right to complain of it

Front matter

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HASTY EECOGJ^ITION

REBEL BELLIGEIIENCY,

Preface

The following pamphlet, I am free to acknowledge, is both controversial and American : — controversial, so far as it seeks to meet and answer the new position set up by Earl Russell, the British Secretary of State for Foreign Affairs, on behalf of his Ministry, and by Earl Russell's juridical champion, " Historicus," of the London Times, that the recognition of the American rebels as a belligerent Power was a necessity and not a choice ; and American, so far as it looks at this new plea in avoidance from an American point of view. Yet the writer cherishes a hope that his readers will find in the following pages something besides controversy and Americanism. He trusts that his labors will help throw light for the purposes of permanent history upon one of the great questions of public law of the ninetenth century, namely, whether the action of the two great Western Powers of Europe in so speedily raising the Confederate secessionists to the rank of a belligerent power, — thereby, perhaps, warming into life and helping to walk alone the most gigantic and immoral sedition in history, and inaugurating the bloodiest and most cruel civil war since the Christian era, — was either a friendly or a justifiable measure; friendly, considering that it was apparently set in motion by one of the great heads of the English liberal party, a party whose antecedents were all in favor of popular rights, and committed without a reserve to uncompromising hostility against negro slavery, and seconded on the Southern side of the British channel by that France which had stood god- Cm)

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father to American liberties, and without whose aid Americans may freely admit that they would never have been independent unless after a long lapse of intermediate years, — ov justijiahle, because as an international precedent, when can civil rebellion ever be justly counteracted and crushed out, if not in such a case as that of this American contest?

— An assault, as the second greatest leader in the rebellion himself characterized it, upon " the best and freest government, that the sun of heaven ever shone upon."

In my attempted elucidation of this great historic question, I am well aware to how easy a refutation I expose myself (if I am wrong), when I venture to call in question Earl Russell's statement, that the law-advisers of the Crown in recommending the issue of the Queen's proclamation of neutrality, and so the recognition of Confederate belligerency, grounded themselves upon the American proclamation of blockade as an overruling necessity which left no choice for British action. If the Crown lawyers really gave such advice and the Foreign Secretary is not mistaken in his recollection, nothing will be easier than to produce their written opinion, — if, in the judgment of the British Cabinet, its own reputation for candor seems sufficiently involved to require it. Even then, however, I feel confident that my positions will hold good in three particulars :

(1.) That the Crown lawyers, in any advice given prior to May 6th 1861, gave an opinion upon an unofficial and probably imperfect copy of President Lincoln's proclamation ; •

(2.) That if they made the American blockade an important element in their opinion, it was only in the sense that it entitled not required Her Majesty's Government to proclaim neutrality and belligerency ; and,

(3.) That they never advised that a manifesto of a future blockade,

— not then enforced or known to be enforced, and which while directed against insurgent subjects, was so far municipal and ww-international that it professed to treat as pirates those rebellious subjects and all others found guilty of any adoption of Jefferson Davis's letters of marque and reprisal, — required the neutral power of Great Britain to

PREFACE. V

regard such manifesto as tantamount to the existence of a war and thereupon to recognize two belligerent parties, equally entitled to neutral consideration.

If on this latter point the record shall make against me, I shall appeal with full confidence from the judgment of English lawyers to the enlightened opinion of European and American publicists.

But, on the other hand, I venture, with all the confidence in the world, to enforce my other position with regard to the blockade proclamation, that provided the Crown lawyers gave the advice attributed to them by Earl Russell, and in that connection, yet the British Government, represented by the Foreign Secretary, never made any account of that advice ; and, that the true reason for British action in acknowledging Rebel belligerency and Rebel equality was that set forth in Earl Russel's despatch to Lord Lyons of May 6th, 1861, in which the Foreign Secretary declares in effect, that the American Union has gone to pieces, that the Southern Government has duly organized itself, and that Her Majesty's Government does not wish any secret to be made of its recognition and acceptance of these facts in its future dealings with the " late Union."

I ask the reader's special attention to this despatch, which I am confident that no advice of the Crown lawyers and no apology of juridical journalists can explain away or render unimportant. Unlike, too, some of the other diplomatic documents which I am obliged to quote in their ^ excerpted state, as prepared for publication, this State-paper is not a mere " extract." The whole of its text is given, pure and simple, under the official imprimatur of a Blue Book ; and I presume to say, that that text will stand in history as a truer key to British intervention at the first stage of the American struggle, in the shape of what was called British Neutrality, than any new gloss first devised or first made much account of, as late as March, 1865.

I deem it highly probable that the Foreign Secretary's friends will say for him, or he for himself, in extenuation of this State-paper, that it was a hasty document, penned under the influence of what seemed at that moment, a dark juncture in American affairs; and that it was

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only subsequent events which rendered the opinions therein put forth inopportune and unfounded. Perhaps Earl Russell's friends will even urge in his behalf that he knew more, at that crisis of the rebellion, of the dangers which threatened the American Union, than the American Government itself. If so, I would ask, Did Earl Russell get that knowledge from Rebel conspirators and from traitors against their own government ? Not that I would necessarily imply that as a diplomatist he had not a right to listen to any plots that American conspirators might see fit to break to his ear ; but if he had had that superior knowledge^ would it not have been an act of national friendliness, which would have redounded to the advantage of the British nation to all posterity, if he had imparted it to the government of the United States and put them on their guard against unforeseen perils from a gigantic plot of treason ?

But, supposing the Foreign Secretary to have had no such illegitimate source of information opened to him, or not to have availed himself of it, if opened, as that suggested ; yet, if in any w^ay he had a better information as to the magnitude of the dangers which were about to assail the United States, than the United States Government itself, — had he a right, I ask, to act upon those threatened dangers till they had actually come to pass and wrought out their evil results ? Had he a right to declare a state of belligerency as actually existing, when he only saw it as a future contingency, however inevitable ? Had he a right to say to the United States, — You are gone to pieces ; you are hopelessly separated into fragments ; your rebels are as duly an organized a government as yourself; — when the American people had hardly begun, as yet, to dream of the possibility of Separation, much less of the dire necessity of Civil War ?

The Foreign Secretary avows in this dispatch of the 6th of May, 1861, that he knew what a tremendous struggle might be in store for the American Republic and the momentous consequences which a declaration of European neutrality would draw after it; — why so hasty, then, in taking such a fearful step ? Would it have done any harm to have waited twenty-four hours, or even eight days, to get speech

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with the new American Minister ? But, instead of waiting for Mr. Adams's explanatory statements and authentic intelligence, Earl Russell, as appears by this dispatch of the 6th of May, did not even wait for his own envoy's. "While in one breath he is complaining that the delay of the steamers or the interruption of railroad and telegraph communication between Washington and New York has cut him off from the latest (and one would say most indispensable) intelligence from the seat of war, he is announcing before the close of the document, that he is prepared to act and take all the consequences of the step of " investing " the Rebels " with all the rights and prerogatives belonging to belligerents."

There may, possibly, have been no unfriendliness, — no positive ill-wishing, — in all this ; but I appeal to the world, whether it was not unduly precipitate, and whether it can be excused by any plea of unavoidable necessity ?

Boston, May 30, 1865.

Note. It seems proper to add, for the information of a certain portion of my readers, that a considerable part of the following paper appeared as a communication in the columns of the Boston Daily Advertiser, of May 3d, by the favor of whose editors I was thus enabled to come before the public with so much of my matter, at an earlier day of publication, and before a larger circle of readers than I should otherwise have had an opportunity of addressing.

To those who took an interest in that communication I would say that I have added about a third part of new matter ; giving (inter alia) the remarkable despatch, in full, of Earl Russell, of May 6th, above commented on. I also subjoin, in another connection, some further strictures upon one of the closing paragraphs of that despatch, the significance of which escaped my attention 5t that time. I have also added another piece of evidence telling against the Foreign Secretary's regard for the American proclamation of block-

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ade, which I derive from his Blairgowrie speech of September, 1863, in reply to Mr. Sumner, at the Cooper Institute in New York, the same month. For the reference to this piece of confirmatory proof I am indebted to a clerical friend who shows his appreciation of " things to come " by keeping himself well informed in public events " that now are."

I have also added to my main discussion, a more detailed reply to Historlcus's communication to the Times, in defence of British Neutrality ; thinking that, as I subjoin that communication to this article by way of Appendix, I may justly avail myself of this occasion to add some further criticisms which would have too much swollen my former communication for the columns of a daily newspaper. To those who are interested in seeing justice done to the speculations and statements of Historicus, I would suggest as the logical mode of estimating the fairness of my strictures upon them to commence the perusal of the pamphlet with the Appendix. In that way at least, by reading the eminent English publicist's paper entire and in one connection, they will get a specimen of his racy style and bold rhetoric.

Perhaps it is due to the fairness of literary and legal discussion to add that I have also availed myself of the present occasion to correct several errors of quotation from the language of others, and some inaccuracies of expression of my own, which were overlooked in the haste of preparing the newspaper communication. I believe, however, that they are all of a comparatively unimportant character

I

THE NEW POSITION OF THE BRITISH MINISTRY — THAT THE AMERICAN PROC- LAMATION OF BLOCKADE OF THE CONFEDERATE PORTS NECESSITATED THE QUEEN'S PROCLAMATION OF NEUTRALITY — AN AFTERTHOUGHT, . . . 1

II

THE AMERICAN PROCLAMATION OF BLOCKADE NOT THE OCCASION OF THE RECOG- NITION OF CONFEDERATE BELLIGERENCY, BECAUSE, SUPPOSING THE FORMER TO HAVE BEEN OFFICIALLY COMMUNICATED, IT WAS NOT KNOWN TO HAVE BEEN ENFORCED AT THE DATE OF THE LATTER ; AND FURTHERMORE, IF ENFORCED, WAS NOT SUCH AN ACT AS OUGHT TO HAVE BEEN INTERNATIONALLY TREATED AS AN ACT OF WAR, ... 22

III

CORRECTION OF VARIOUS MISSTATEMENTS OF HISTORICUS IN HIS ARTICLE OF MARCH 22d, AND INCIDENTAL NOTICE OF EARL RUSSELL'S DESPATCH TO LORD LYONS OF MARCH 6th, 1861, . , . = 30

IV

THE RECOGNITION OF CONFEDERATE BELLIGERENCY NOT A BY-GONE, BUT A CONTINUING REALITY, 44

Appendix

COMMUNICATION OF HISTORICUS TO TH£ LONDON TIMES OF MARCH 22d, 1865, 4<

HASTY RECOGNITION

OP

REBEL BELLIGERENCY,

AND

OUR RIGHT TO COMPLAIN OF IT.

I.

THE NEW POSITION OF THE BRITISH MINISTRY — THAT THE AMERICAN PROC- LAMATION OP :BL0CKADE op the CONFEDERATE PORTS NECESSITATED THE QUEEN'S PROCLAMATION OF NEUTRALITY — AN AFTERTHOUGHT.

It seems to be a settled thing that a serious demand is about being made by the United States upon England and France for the withdrawal or cancellation of their recognition of Confederate belligerency. I do not propose now to discuss how that demand is likely to be received by the two great Western powers of Europe, nor what should be our attitude in case of a refusal. But in anticipation of any decision, which may be come to on the other side of the water, upon the first head, I desire to call attention to a noticeable change of position which Earl Russell and " Historicus," the well-known international-law correspondent of the London Times, have just assumed, at our latest intelHgence from England, in regard to the basis on which that belligerent recognition originally rested on the part of England ; a change of position which implies that Englishmen are unwilling to stand by the justification then put forth, or that they are preparing themselves with a new plea to meet the anticipated demands to be made by us upon their government.

Mr. Bright, in a recent masterly speech in the House of Commons on the question of the Canadian defences [Times, March 14th],

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had undertaken to tell the British representatives with bold frankness, that the reason why Englishmen feared a feeling of hostility towards them on the part of the Americans was because they had a guilty conscience themselves, that they deserved the ill-will of the United States for having treated them so badly throughout their struggle for national existence. Mr. Bright was vehemently " no, no"-d for this by some of the members of the House ; but his speech manifestly made a profound sensation both inside and outside the parliamentary walls. The London Times forthwith launched a bitter diatribe against him in the shape of a communication of two columns and a half from Historicus, which I propose presently to notice, and which will be found at length in the Appendix, and in two or three editorials, following up his speech, has attempted to reply to its positions. Earl Russell felt compelled to notice it in the House of Lords ; and though he could not answer it formally, through that parliamentary rule which forbids allusion in one branch to words spoken in the other, he took occasion to protest emphatically against " speeches declaring that this country [England] has behaved wrongfully to the United States," as showing England's enemies " that there is a party [here at home] ready to take up the view that the United States are in the right," and then proceeded to make a detailed rejoinder to Mr. Bright's several heads of accusation. In the course of this speech, made March 23d (London Times, March 24th), Earl Russell puts forth the following noticeable explanation of the original reasons for recognizing the Confederates as belligerents, which I undertake to assert is an entire change of base from that promulgated at the time to this country and to the world at large, and which was never heard of till months — certainly, till many weeks — after the war began, when the course of events and the judicial decisions this side of the water rendered it convenient for England to adopt a new justification for her hasty action in recognizing, and (so) befriending, the rebels. Says Earl Russell —

" Every one who knows anything of the law of nations, knows perfectly well, that although a country may put down insurgents who rise against its authority, yet that a country has no right or power to interfere with neutral commerce unless it assumes the position of a belligerent. But that is what

HASTY RECOGNITION OF BELLIGERENCY. O

the United States did. The President of the United States by his proclamation declared that the coasts of particular States were in a state of blockade, and that armed vessels belonging to those States were to be treated as pirates At that time Lord Campbell held the high office of Lord Chancellor, and of course we consulted him and the law officers of the Crown as to what should be done. Lord Campbell declared, as we all supposed he would do, that there was no course but one to pursue, — namely, to regard the blockade on the part of the United States as the exercise of a belligerent right. And as belligerent rights cannot be confined to one party, but are usually exercised against somebody else, our advisers told us that we were entitled to recognize the existence of belligerent rights on the part of both the combatants and to declare Her Majesty's neutrality between the two parties. [Cheers.] "

The Italics near the close of the extract are mine ; ^ and they naturally suggest an important difference between doing what one is only " entitled" to do, and yielding to an urgency so pressing as that just before suggested in Lord Campbell's opinion, where " there is no course but one to pursue." I apprehend that Earl Russell only meant to assert that President Lincoln's proclamation of blockade entitled the British Government, not required it, to treat the two parties on a footing of equality. Historicus, in his sweeping dogmatism, had asserted two days before, in his communication to the Times, that, —

" It was a matter not of choice, but of necessity, that the Queen of England should issue a proclamation of neutrality to her subjects, and that that proclamation should be issued without one single instant's delay."

He further denounces his contempt for Mr. Bright's knowledge of statesmanship by asserting that, —

" Nothing has ever so much astonished him as to find that on either side of the Atlantic any man of ordinary intelligence and education should be capable of advancing or entertaining for an instant such a complaint [as that] of the premature concession of belligerent rights to the South by Great Britain."

Now, I propose to show my readers, —

First. That this proposition of Earl Russell's and Historicus' s,

1 I desire to state that in subsequent extracts hereafter, I shall Italicize in the same manner, where I seek to give prominence to particular passages.

that the President's proclamation of blockade lay at the bottom of the recognition of the Confederates as belhgerents, if not a new discovery, was never heard of at the time that that recognition was resolved upon ; certainly that it was never put forth as its justifying motive, either in contemporaneous explanation made to the United States or to the rest of the world :

Second. That any such attempted justification will fail, for the reason that no blockade, ordered by the President, was known in England to have actually been enforced at the date of the Cabinet determination to issue the proclamation of neutrality ; and, had it been known at that date, was just the act which called for explanation from international good will and courtesy, rather than an act to be visited with the harsh and summary treatment of raising a band of insurrectionists to the level of equality with their rightful government :

Third. That Historicus is guilty of the grossest inaccuracies, not to say misstatements, in his attempt to convict Mr. Bright of trumping up a case for the Americans on the score of unjust complaints about premature recognition of Confederate belligerency.

First. That Earl Russell and Historicus are getting up a new issue for the justification of English haste in recognizing the Confederates as belligerents ; — the old one being that there was a state of flagrant war between two duly organized governments.

The first element is the date on which the Cabinet determination to issue the Queen's proclamation of neutrality was arrived at. This is important, because Historicus cites with a loud flourish of trumpets a despatch of Lord Lyons to Earl Russell, dated April 22, 1861 and received in London May tenth^ 1861, — a despatch communicating the President's proclamation of blockade of April 19, and Jefferson Davis's proclamation threatening to issue letters of marque and reprisal, dated April 17, — and asks, in a tone of confident assurance, " what was the immediate duty of a government charged with the interest of British subjects all over the world, on the receipt of such a despatch ? "

Now, unfortunately for the British Government's " duty^^ the Ministerial determination to raise the Confederates to the standing

HASTY RECOGNITION OP BELLIGERENCY. 0

of belligerents had been announced four days before this despatch got to 3n(jland !

I find, in Hansard's " Parliamentary Debates " (v. 162, p. 1566), that Lord John Russell, the British Secretary of State for Foreign Affairs, on the sixth day of May, in answer to questions put by Mr. Gregory, announced, in his place in Parliament, that the Cabinet having " consulted the law-officers of the Crown, — the Attorney- General, the Sohcitor-General, and the Queen's Advocate, — the Government have come to the opinion that the Southern Confederacy of America, according to those principles which seem to them to be just principles, must be treated as a belligerent."

Of course the London Times and other Confederate organs dilated the next morning upon the importance of this Ministerial step. So that we have it fixed as an historical fact, to all posterity, that the authorized spokesman of the British Cabinet officially announced to the House of Commons, on the 6th day of May, 1861, that the British Government had resolved to recognize the Confederates as a belligerent power. The Home Secretary, Sir George Cornwall Lewis, announced to the same body, on the 9th of the same May, that a proclamation of neutrality was about to be issued ; and the proclamation itself actually bears date the 13th. But of course the blow at the integrity of the American Government — or, at American good will, shall I say ? — was levelled at the date of the 6th.

So that if Historicus (following the Blue Book) correctly states the date of the reception at the Foreign Office of the official copy of the President's proclamation of blockade, on which official communication of the document only, as he seems properly to consider, were the British Government authorized to treat it as a valid State-paper, it follows — that the Queen^s proclamation of neutrality could have had no connection with the American proclamation of blockade^ inasmuch as the former preceded all official knowledge of the latter by at least three entire days.

How then could Lord Campbell or the law-advisers of the Crown have given any such advice as Earl Russell is now sure that they gave, or, as Historicus is ready dogmatically to prove, a priori, that they could not help but have given ?

But supposing that the telegraph or the newspapers had brought to the Foreign Office, at an earlier date than the 6th of May, the upshot and effect of the blockade proclamation, or even what purported to be a summary of its contents (of which I am free to confess that I make no question ; indeed, I purpose presently to quote a despatch of Earl Russell's to Lord Cowley of that date, distinctly assuming a knowledge of its existence), and supposing further, that the law-advisers of the Crown were willing to give their opinion upon the scope and bearing of the proclamation without having the official text before them (which I must confess I can hardly for a moment believe would either have been asked or expected of them),^ let us see if Earl Russell's new theory is borne out by the other attending facts and probabilities belonging to the case.

In the first place, I beg my readers to look at the contemporaneous explanation of motives accompanying the announcement of the determination of Her Majesty's Government to extend to the rebels the status of belligerents, put forth by Earl Russell himself.

I have already quoted from Hansard a part of the Foreign Secretary's declaration on the 6th of May. I now go back and give a few sentences earlier, —

" With respect to belligerent rights in the case of certain portions of a State being in insurrection, there was a precedent which seems applicable to this purpose, in the year 1825. The British Government at that time allowed the belligerent rights of the Provisional Government of Greece, and in consequence of that allowance the Turkish Government made a remonstrance. I may state the nature of that remonstrance and the reply of Mr. Canning. The Turkish Government complained that the British Government allowed to the Greeks a belligerent character, and observed that it appeared to forget that to subjects in rebellion no national character could properly belong. But the British Government informed Mr. Stratford Canning that the character of belligerency was not so much a principle as a fact ; that a certain degree of force and consistency acquired by any mass of population engaged in war entitled that population to be treated as a belligerent, and, even if

1 I believe that it will turn out on investigation that the Foreign Office at the date of the 6th of May, 1861, and until the receipt of Lord Lyons' despatch referred to, on the lOth, had not even a correct or complete newspaper-copy of the blockade proclamation before it, upon which to act or to solicit an opinion from the Crown lawyers. From what investigation I am able to give the subject, looking to two leading London their title were questionable, rendered It the interest well understood of all civilized nations so to treat them ; for what was the alternative V A power or a community (call it which you will), which was at war with another and which covered the sea with its cruisers, must either be acknowledged as a belligerent or dealt with as a pirate ; which latter character as applied to the Greeks was loudly disclaimed."

So that, according to this, while Earl Russell was likening the rebels to the struggling Greeks and the Federal Government to their Turkish oppressors, — undesignedly, perhaps, though it was bitterly complained of at the time by the upholders of the Union cause, — he was approving and acting upon Mr. Canning's dictum^ that " belligerency is not so much a principle as a fact, and that a certain degree of force and consistency, acquired by any mass of population engaged in war, entitles that population to be treated as a belligerent."

What is there here which reads like the President's proclamation not merely " entitling " but requiring the British Government to treat the declaration of blockade as tantamount to a declaration of war against the South ? On the contrary, is not the inference unavoidable, that " the principles which seemed (to the law-advisers) to be the just principles " for recognizing a state of belligerency on the part of the South were those sanctioned by the high authority of Canning, and acted upon under his lead in the case of the Greeks versus the Turks ?

journals and various American newspapers, I am led to believe that up to the 6th of May no other abstract or summary of the proclamation was known, on the other side of the Atlantic, than that contained in the telegraphic summary from Washington to the New York daily newspapers of April 20th, — communication being interrupted on that day between Washington and New York, and continuing so interrupted till the 27th, — which summary, instead of giving the text of the proclamation, recites as an item of news, " The President has issued a proclamation that an insurrection against the Government of the United States," &c., giving all the body of the proclamation, except the last important sentence, which denounces the penalties of piracy against all who molest United States' vessels [under Jefferson Davis's commissions of marqiae and reprisal], but containing such interpolations as "the President says," &c. {See^ for instance, the London Daily News of May 3d, which copies this summary without the preamble or any signature of the President or Secretar}^ of State.] The National Intelligencer of April 20th, alone of American newspapers, I suspect; gave on that day what purported to be, and what actually was, the text of the proclamation. But this newspaper, I am quite confident, did not find its way to England till it was carried out by the packet which bore Lord Lyons' ofiicial copy of the President's proclamation, communicated to him from the State Department.