Lee at Appomattox, and other papers

Front matter

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Contents

Chap. Page

I. LEE AT APPOMATTOX 1

II. THE TREATY OF WASHINGTON: BEFORE AND

II

Fortunately for maritime law, fortunately for itself, the British government paused at this point. The " Laird rams," as they were now known, presented a test case. London '' society " and the irresponsible press of Great Britain might, like the audience in the Court of Exchequer, applaud the charge of the Lord Chief Baron, and gladly accept the law he laid down that it was legal for a belligerent to create a navy in a neutral port ; but, none the less, in the words of one of the dissenting Barons, by the rulings of the Court "the spirit of international law [had been] violated, and the spirit and letter of the statute evaded." ^ There

1 Morning Post, March 14, August 10, 1863.

^ " A very learned judge has said that we might drive, not a coach-and-six, but a whole fleet of ships through that [Foreign Enlistment] Act of Parliament. If that be a correct description of our law, then I say we ought to have the law made more clear and intelligible." Earl Russell in the House of Lords, February 16, 1864. Geneva Arbitration : Correspondence, etc., vol. v. p. 528.

was no longer any danger, scarcely any inconvenience, in a belligerent fitting out a vessel of war in a British port, and sailing directly thence to begin a hostile cruise.^ This, indeed, was at that very time actually in preparation. Theretofore the cases had been those of individual commerce-destroyers only. Now, an armament was in course of construction in a British port, intended for a naval operation of magnitude against a foreign belligerent with which Great Britain was at peace. The vessels composing it were, moreover, equipped with weapons of offensive warfare — their beaks. Their purpose and destination could not be proven in any legal proceedings ; but, known of all men, they were hardly concealed by fraudulent bills of sale. The law as laid down by the Lord Chief Baron in the case of the Alexandra might, therefore, as " crowner's quest law," be of the very first class ; but for Her Majesty's Government, such a construc-

^ The construction of such cruisers was, moreover, for the shipwright, an uncommonly safe, as well as profitable, business ; and under the practical working of the law as it then stood, the more the interference, the greater the profit. This was curiously illustrated in the case of the Laird iron-clads. The original contract price for the two vessels was £187,500. (Bulloch, vol. i. p. 386.) Owing to fear of a seizure by the Government, the contract was transferred to a French banker named Bravay, who professed to represent the Pacha of Egypt. A gratuity of £5000 was paid to the Messrs. Laird as a consideration for their consent to this transfer. (76., p. 404.) It then became apparent that the transfer was a mere cover for fraud, and the vessels were seized. In the existing state of public opinion, the Government was unwilling to go to a jury, — in fact, after the ruling of the Chief Baron in the Alexandra trial, it could not have done so with any chance of a condemnation, — and accordingly it proceeded to negotiate for the purchase of the vessels on its own account. The Messrs. Laird now asked for them £300,000, and in the end actually got £220,000. (Lord Selborne : Memorials, Part J., 1766- 1865, vol. ii. p. 450.) Thus, contrary to the usual experience, the more their business was interfered with, the richer they became.

tion of the law — an act in the statute-book of Great Britain — obviously involved serious consequences. Were they prepared to go to the journey's end on the road thus pointed out ? To what might it lead ? To what might it not lead ?

Into the causes of the change of policy which now took place it is not necessary here to enter. The law was expounded in the Alexandra case on the 24th of June, 1863 ; the battle of Gettysburg was fought, and Vicksburg surrendered, on the 3d and 4th of the following July ; three months later, on the 9th of October, the detention of the Laird iron-clads was ordered. After the rulings of the court in the Alexandra case, there can be no question that in this instance the law was " strained." In due time the proceeding was made the ground of attack on the government in both Houses of Parliament, on the ground that the detention was in violation of law, and without sufficient proofs. In these debates the spokesmen of the government at last took the proper ground. They admitted that Great Britain was under an obligation to give to the United States its rights under the law of nations, whether acts of Parliament furnished the means of so doing or not. The jDOsition thus at last assumed was approved by a comparatively small majority. A surprise to the American Minister then representing the country in London, the detention of the iron-clads thus marked a radical change in the policy pursued by the Palmerston-Russell Ministry. Earl Russell apparently now first realized the fact he afterwards announced in Parliament, " that in this conflict the Confederate States have no ports, except those of the Mersey and the Clyde, from which to fit i

out ships to cruise against the Federals ; " ^ and it seems to have dawned ujion him that, in the case of future hostilities, other nations besides Great Britain had ports, and, in certain not impossible contingencies, those ports might become bases — perhaps inconvenient bases — of maritime v^^arfare, as were now those of the Mersey and the Clyde. It was a thing much to be deplored that rules did work both ways, and that curses, Hke chickens, would come home to roost ; but, this being so, it behooved prudent statesmen to give a certain degree of consideration to the precedents they were creating.

Whether Earl Russell reasoned in this wise or not, certain it is that after September, 1863, Great Britain ceased to be available as a base of Confederate naval operations. The moment it felt so disposed. Her Majesty's Government found means to cause the neutrality of Great Britain to be respected. My own belief, derived from a tolerably thorough study of the period, is that numerous causes contributed to that change. Among the more potent of these I should enumerate the stirring of the British conscience which followed the Emancipation Proclamation of September, 1862 ; the conviction, already referred to, that any decisive action on the part of Great Britain was unnecessary as well as impolitic, the ultimate success of the Confederacy being a foregone conclusion ; the troubled state of affairs on the Continent as respects both Poland and Denmark ; and, above all, the honest anger of Earl Russell at the consequences which had ensued from the evasion of the Alabama. The precedent he

1 House of Lords, April 26, 1864. Geneva Arbitration: Correspondence^ etc., vol. V. p. 535.

had himself helped to create startled him, — he recoiled in presence of its logical consequences ; and, in view of the complications then existing on the Continent, or there in obvious process of development, the great financial and commercial interests of Great Britain showed signs of awakening. Awkward questions were shortly in order ; and, on the evening of the 13th of May, 1864, the head of the great commercial house of Barings fairly startled the country by rising in the House of Commons, and suggesting certain queries to the Government, — queries, now, thirty-seven years later, of much significance in connection with events in South Africa. " I am," Mr. Baring said, " desirous of inviting the attention of the House to the situation in which this country will be if the precedents now established are acted upon in the event of our being involved in war, while other States are neutral. Under the present construction of our municipal law there is no necessity that a belligerent should have a port or even a seashore. Provided she has money, or that money is supplied to her by a neutral, she may fit out vessels, and those vessels need not go to the country to which they are said to belong, but may go about the seas dealing destruction to British shipping and property. Take the case, which I hope we shall avoid, of our being at war with Germany. There would, as things now stand, be nothing to prevent the Diet of Frankfort from having a fleet. A number of the small States of Germany might unite together, and become a great naval power. Money is all that is required for the purpose, and Saxony, without a seashore, might have a First Lord of the Admiralty, without any docks, who might have a large fleet at his disposal.

The only answer we could make under those circumstances to France and the United States, who as neutrals might fit out vessels against us on the pretence that they were German cruisers, was that we would go to war with them ; so that by the course of policy which we are pursuing we render ourselves liable to the alternative of having our property completely destroyed, or entering into a contest with every neutral Power in the world. We ought, under these circumstances, to ask ourselves what we have at stake. I will not trouble the House with statistics on the point, but we all know that our commerce is to be found extending itself to every sea, that our vessels float in the waters of every clime, that even with our cruisers afloat it would not be easy to pick up an Alabama^ and that the destruction of our property might go on despite all our powers and resources. What would be the result ? That we must submit to the destruction of our property, or that our shipping interests must withdraw their ships from the ocean. That is a danger, the apprehension of which is not confined to myself, but is shared by many who are far better able to form a judgment than I am. Recollect that your shipping is nearly twice as large as that of the United States. If you follow the principle you are now adopting as regards the United States, you must be prepared to stand the consequences ; so strongly was this felt by ship-owners that memorials have already been addressed to the Government upon the subject. . . . Last night the honorable Member for Liverpool presented a petition, signed by almost all the great ship-owners of that place, enforcing the same view and expressing the same anxiety. I am a little surprised at this manifestation, because what is happening around us is a source of great profit to our ship-owners ; but it is a proof that they are sensible that the future danger will far preponderate over the present benefit and advantages." ^

When too late, it thus dawned even on the shipbuilders of the Mersey that, for a great commercial people, confederacy with corsairs might be a dangerous, even if not, in their own eyes, a discreditable vocation. Firms openly dealing in burglars' tools are not regarded as reputable.

But one way of escape from their own precedents might yet remain. It was always the contention of Mr. Charles Sumner that a neutral-built ship-of-war could not be commissioned by a belligerent on the high seas. It was and remained a pirate, — the common enemy of mankind, — until its arrival at a port of the belligerent to which it belonged, where alone, after " depositing its taint," it could be fitted out and commissioned as a ship-of-war.^ As any port will do in a storm, and drowning men proverbially clutch at straws, it is possible to imagine a British ship-owner, as he foresaw in vision the Transvaal and the Orange Free State involved in a war with Great Britain, ap23ropriating this contention, and trying to incorporate it into the International Code. He would then have proceeded to argue somewhat as follows : — " Mr. Baring was a banker, not a publicist. As a publicist he was wrong. A non-maritime nation cannot be a maritime belligerent," etc., etc. But, during the course of our Civil War, the British authorities, legal and political,

1 Geneva Arbitration : Correspondence, etc., vol. v. p. 579.

2 Works, vol. vii. pp. 358, 452-460 ; vol. xiii. p. 68. Pierce : Sumner ^ vol. iv. p. 394.

t seemed to take pleasure in shutting against themselves every possible outlet of future escape. So, in this case, referring to the contention of Mr. Sumner, the Attorney-General, speaking after Mr. Baring, expressed himself as follows : — " To say that a country whose ports are blockaded is not at liberty to avail herself of all the resources which may be at her command in other parts of the world, that she may not buy ships in neutral territory and commission them as ships of war without bringing them to her own country first, is a doctrine which is quite preposterous, and all the arguments founded upon such a doctrine only tend to throw dust into men's eyes, and to mislead them." 1

The morning following this significant debate the tone of Lord Palmerston's London organ underwent a notable change. Grant and Lee were that day confronting each other in the Wilderness, resting for a brief space after the fearful wrestle of Spottsylvania; in London, the conference over the Schleswig-Holstein struggle was in session, and the feelings of Great Britain were deeply enlisted on behalf of Denmark, borne down by the united weight of Prussia and Austria. So, in view of immediate possible hostilities, the Post now exclaimed, — " We are essentially a maritime power, and are bound by every motive of self-interest to watch with jealousy the observance of neutral maritime obligations. We may be at war ourselves ; we have a future [South Africa !] to which to look forward, and we must keep in mind the precept which inculcates the necessity of doing to others as we would be done by. . . . War is no longer con- 1 Geneva Arbitration : Correspondence, etc., vol. v. p. 583.

sklered by the commercial classes an impossibility; and the ship-owners of Liverpool are considering what is to become of their property should we unhappily become involved in war, and innumerable Alahamas issue from neutral [American] ports to prey upon British commerce throughout the world. Suppose that circimistances obliged us to espouse the cause of Denmark against her ruthless enemies, would not the German States hasten to follow the bad example set them by the Confederates, and at which the inefficiency of our law obliges us to connive ? " And the London organ of " society " and the " influential classes " then added this sentence, which, under certain conditions actually existing thirty-five years later, would have been of very pregnant significance : — " Some petty principality which boasts of a standing army of five hundred men, but not of a single foot of sea-coast [e. g. the Transvaal, the Orange Free State], might fit out cruisers in neutral [e. g. American] ports to burn, sink, and destroy the commerce of Great Britain ; and the enormous amount of damage which may be done in a very short time, even by a single vessel, we know from the history of the Alabama.''^ ^

Thus when the War of the Rebellion closed, the trans-Atlantic outlook was, for Great Britain, ominous in the extreme. Just that had come about which English public men and British newspapers had wearied themselves with asseverating could not possibly happen. The Times and Morning Post especially had loaded the record with predictions, every one of which the event falsified; and, in doing so, they had gone out of their way to generate bitter ill-

1 The Post, May 14 and 18, 18G4.

feeling by the arrogant expression of a contemptuous dislike peculiarly British and offensive. For example, the Ti7Jies, " well aware that its articles weigh in America more heavily than despatches," first referred to us as " this insensate and degenerate i people," and then proceeded to denounce " this hateful and atrocious war, . . . this horrible war," which it declared was of such a character that its defenders could not find in all Europe a single society where they could make themselves heard.^ In the same common temper, the Standard, reviewing the results of the conflict on the very day that Vicksburg, unknown to it, had sur-

1 The " deg-eneracy " of the American was, at this time, the subject of m.uch lachrymose contemplation on the part of British journalistic scribes. A writer in that highly respectable quarterly, the North British Review, thus delivered himself, for instance, in its February number for 1862 (p. 248) : — "In nearly every element of political and moral, as distinguished from material, civilization, the deterioration of America since the days of Washing-ton had been appallingly rapid and decisive. It had ceased to be the land of progress, and had become in a peculiar manner the land of retrogression and degeneracy."

^ July 9, 12, 1862, The course and language of the Times at this period were peculiarly ill-advised. American opinion on that point might be considered prejudiced ; but Mr. Leslie Stephen, then a man of thirty-three, has since established a world-wide reputation as a critic on questions of taste. Mr. Stephen, in 1865, thus expressed himself in a pamphlet (pp. 105, 106) entitled The " Times " on the American War : A Historical Study ; a production not included in his recognized writings, and long since forgotten : — " But my complaint against the Times is that its total ignorance of the quarrel, and the presumption with which it pronounced upon its merits, led to its pouring out a ceaseless flood of scurrilous abuse, couched, indeed, in decent language, but as essentially insulting as the brutal vulgarities of the New York Herald. No American — I will not say with the feelings of a gentleman, for of course there are no gentlemen in America — but no American with enough of the common feelings of humanity to resent the insult when you spit in his face could fail to be wounded, and, so far as he took the voice of the Times for the voice of England, to be irritated against England."

rendered, declared, — " We have learned to dislike, and almost to despise the North ; to sympathize with, and cordially to admire, the South. We have learned that the South is, on the whole, in the right ; that the North is altogether, wilfully and wickedly in the wrong." But these expressions of heartfelt contempt were not confined to the London press. Liverpool, for instance, was conspicuous as a hot-bed of Confederate sympathy; and, as early as August, 1861, the leading journal of that city expressed itseK as follows : — " We have no doubt whatever that the vast majority of the people of this country, certainly of the people of Liverpool, are in favor of the cause espoused by the Secessionists. The defeat of the Federalists gives unmixed pleasure ; the success of the Confederates is ardently hoped, nay, confidently predicted." A year later, the London Post referred in the same tone to those whom it saw fit, in the rarefied and luminous atmosphere of its own exalted wisdom, to describe as " the infatuated people across the Atlantic." " The whole history of the war is a history of mistakes on the Federal side. Blinded by self-conceit, influenced by passion, reckless of the lessons of history, and deaf to warnings which every one else could hear and tremble at, the people of the North plunged into hostilities with their fellow-citizens without so much as a definite idea what they were fighting for, or on what condition they would cease fighting. They went to war without a cause, they have fought without a plan, and they are prosecuting it still without a principle." It would then pleasantly allude to the "suicidal frenzy" of a contest in which two sections were striving "with a ferocity unknown since the times when Indian scalped Indian on the same continent ; " and sorrowfully add, — '^ American pride contemptuously disdains to consider what may be thought of its proceedings by the intelligent in this country ; inflated self-sufficiency scorns alike the friendly advice of the disinterested and the indignant censures of a disapproving world." And then, finally, when its every prevision had proved wrong, and all its predictions were falsified, as it contemplated the total collapse of the Confederacy, this organ of " society " and the '^ influential classes " innocently observed : — " The antipathy entertained by the United States toward England has, owing to circumstances entirely beyond our control, and into which it is unnecessary now to enter, been fanned into a fiercer flame during the progress of the war ; " ^ and it now spoke of Great Britain as " the mother country ! "

Recorded utterances of this character could be multiplied indefinitely ; ^ I take these few, selected at

2 Those of the Post, read a g-eneration after the event, and in the light of passing South African events, are simply inconceivable.

!^ They reflect a degree of ignorance, and a malignity of disposition, difficult to account for. Take, for instance, the following : — " Yet what wild tribe, from the Red River or the South Sea Islands, dancing- round its fires, and goading- each other to fury by its cries, could exceed in deliberate cruelty and implacability the citizens of Washington on the occasion to which we refer ? " (August 19, 1862.) The " occasion " was a " war-meeting " at that time held, " under the au-

I spices of President Lincoln." " But as the contest went on, it was soon seen how little slavery had to do with it ; and even Europe, to a man, has lost every spark of interest in the Federal cause. Sympathy goes continuously southward." (August 29, 1862.) "We doubt if there could be found in the entire universe a more degrading spectacle than that of a regiment of negro soldiers fighting in support of the Federal government." (September 22, 1862.) " A proclamation would almost suffice to dislodge Abraham Lincoln. . . . We believe that if random, merely to illustrate the extreme difficulty of the position into which the precedents and declare^ tiohs she herself had established, and put freely on record, brought Great Britain at the close of our Civil War. It is useless to say that, as between nations, irresponsible utterances through the press and from the platform are entitled to no consideration, and should not be recalled. They, none the less, are a fact ; and they are not forgotten. On the contrary, they rankle. They did so in 1865.

Happily, however, for the peace of the world, a few great facts then stood forth, established and of record ; and it is these prominent facts which influence popular feeling. English built ships — English manned and Enghsh armed — had swept the American merchant marine from the seas ; but, most fortunately, an American man-of-war of not unequal size had, within sight of Enghsh shores, sent to the bottom of the British Channel the single one of those commerce-destroyers which had ventured to trust itself within the range of

President Davis were to assume the functions of President of the United States, the population of the North would gladly accept this ready mode of preserving- the integrity of the country, and at once acknowledge his authority." (September 24, 1862.) " It is easy to conceive, though it may be difficult to ex]}ress, the language in which future historians will speak of this deplorable contest. Foolish it has been, without a parallel in the annals of human folly. Aimless it has been, when the utter hopelessness of the object with which it was prosecuted is borne in mind. In no previous wars has the sacrifice of human life been proportionally greater ; in none has the expenditure been so wantonly, so profligately, extravagant. There remains, however, one term which must still be applied. It has been profitless. Life, money, and national credit have all been frittered away to procure — nothing!" (October 2, 1862.) It is difficult now to recall these, and endless similar lucubrations, without mirth ; then they hurt. And they were meant to hurt. Perhaps the crudest possible revenge for such utterances is, subsequently, and in the cold light of actualities, to confront the utterer with them.

our guns. In this there was much babn. Again, America was weary of strife, and longed for rest ; and it could well afford to bide its time in view of the changed tone and apprehensive glances which now came across the Atlantic from those whose forecast had deceived them into a position so obviously false. In common parlance. Great Britain had made her bed ; she might now safely be left to a prolonged nightmare as she lay in it. The United States — no longer an '' insensate and degenerate people " — could wait in confidence. Its time was sure to come.

Great Britain, also, was most uncomfortably of this same opinion. The more her public men reflected on the positions taken by the Palmerston-Russell Ministry, and the precedents therein created, the worse they seemed, and the less propitious the outlook. The reckoning was long ; and it was chalked plainly on the wall. It was never lost to sight nor out of mind. The tendency of events was obvious. They all pointed to retaliation in kind ; for, in the summer of 1866, the House of Representatives at Washington passed, without one dissenting vote, a bill to repeal the inhibitions contained in the American neutrality laws against the fitting out of ships for belligerents. The threat was overt ; Great Britain deprecatingly met it by the passage, in 1870, of a new and stringent Foreign Enlistment Act.

Just six years elapsed between the close of the War of the Rebellion (May, 1865) and the signing of the Treaty of Washington (^ay, 1871). For Great Britain those were years of rapid education toward a new code of international law. Considering the interval traversed, the time of traversing it cannot be said to have been long. When, in the midst of the Civil War, tidings of the depredations of the British built Confederate commerce-destroyers reached America, instructions were sent to the Minister of the United States in London to demand reparation. To this demand Earl Russell, then Foreign Secretary, in due time responded. Not only did he deny any liability, legal or moral, but he concluded his reply with this highly significant, not to say petulant remark : — "I have only, in conclusion, to express my hope that you may not be instructed again to put forward claims which Her Majesty's Government cannot admit to be founded on any grounds of law or justice." ^

The discussion seemed closed ; Great Britain had apparently taken her stand. In the words of the Foreign Secretary, — " Her Majesty's Government entirely disclaim all responsibility for any acts of the Alabama:' ^ This was in March, 1863. On the 19th of June, 1864, the depredations of the Alabama were brought to a summary close. When the Confederate Secretary of War at Richmond heard of the loss thus sustained, he wrote immediately (July 18) to the Liverpool bureau of his department : " You must supply her place if possible, a measure [now] of paramount importance." ^ This despatch reached its destination on the 30th of August, and on the 20th of October the head of the bureau had " the great satisfaction of reporting the safe departure on the 8th inst." of the Shenandoah from London, and its

1 Dip. Cor., 1863, p. 380. Russell to Adams, September 14, 1863. Geneva Arbitration : Correspondence, etc, vol. iii. p. 164.

^ Russell to Adams, March 9, 1863. Geneva Arbitration : Carre' spondence, etc., vol. iii. p. 122.

3 Bulloch, vol. ii. p. 112.

consort, the Laurel^ from Liverpool, " within a few hours of each other ; " and this in spite of " embarrassing and annoying inquiries from the Customs and Board of Trade officials." ^ The Shenandoah now took up the work of destruction which the Alabama was no longer in position to continue. It thus devolved on the American Minister to present further demands on the Foreign Secretary. But, in the mean time, the situation had materially changed. The correspondence over the depredations of the Alabama was abruptly closed by Earl Russell seven weeks before the unfortunate battle of Chancellorsville ; Lee surrendered at Appomattox just two days after Mr. Adams brought to the notice of the Foreign Secretary the depredations of the Shenandoah.

A long correspondence ensued, which was closed on the 2d of the following December by Lord Clarendon, Earl Russell's successor as Foreign Secretary. His despatch was brief ; but in it he observed, " that no armed vessel departed during the war from a British port to cruise against the commerce of the United States ; " and he further maintained that throughout the war " the British government have steadily and honestly discharged all the duties incumbent on them as a neutral power, and have never deviated from the obligations imposed on them by international law." ^ And yet in this correspondence the first step in the direction of a settlement was taken, — a step curiously characteristic of Earl RusseU. As indicative also of the amount of progi-ess as yet made on the long road to be traversed, it was the reverse oi encouraging. Earl