his indulgent respect of our blockade at a time when its "binding effectiveness" might have been questioned; his steadfast refusal to join the French Emperor in full recognition of confederate independence; and his uniformly kind and friendly treatment of our representative at the British court throughout the dark days of our national discredit with Englishmen generally. Nor will Americans soon forget his lordship's magnanimous and candid confession at the Garrison banquet of the wrong he had done President Lincoln in questioning the sincerity of his motives in issuing the emancipation proclamation. Such a confession almost marks a new era in the practice of professed diplomatists. In bringing to a close this extended communication, I must deprecate the conclusion that it embraces all that can be said on the merits of "Hasty recognition of rebel belligerency and our right to complain of it." No one can regret more than I do that I have been obliged to occupy so much space in the development of a single point. But that is a point on which I have followed, where Historicus and (I believe I may say) Lord Russell have led the way in challenging discussion. They have tried to conclude "our right to complain" with this plea in bar, that Great Britain took no step in the American struggle till the United States proclamation of blockade had set her in motion and compelled her to declare us belligerents and herself a neutral. I trust that that plea has now been taken out of the way of a fair hearing on the merits of our grievances. Of those merits I cannot forbear to add that I hope in some other connection to show that the British pretense of being compelled to declare neutrality in our civil struggle in order to protect British commerce and to secure the rights of neutrals is mere trumpery; that, so far from President Lincoln's proclamation being a war measure, it was eminently a peace measure, intended not merely to be municipal, but also to be only temporary in its duration-to last, in its own phrase, "until Congress shall have assembled and deliberated on the said unlawful proceedings;" that no government could have been more surprised than were the United States at its proclamation of blockade being afterward (for it was not at the time) perverted into a pretense of a public war by England and France; that such a blockade as was that of the United States of their insurrectionary districts is no ground for foreign intervention under the law of nations; that if afterward there grew up within our borders a great civil war on land, there never were the elements of rebel belligerency on the sea; that, as Jefferson Davis's letters of marque and reprisal never came to anything-even with British and French suspension of the first point of the declaration of Paris in their favor, so as to give free scope to rebel privateers-so down to the end of the struggle the confederate navy proper every day "grew small," and, if possible, "beautifully less;" that British and French recognition of belligerency had for its object, if not the direct encouragement of rebel privateering, yet the taking a step onward in the direction of full recognition of rebel independence; and that finally, when the history of that recognition comes to be fully and fairly developed, it will be found to be, not a hasty recognition of rebel belligerency, but a prepared and persistent recognition of rebel equality; and such a precedent, to be deprecated and disavowed politically and governmentally, as the Alabama precedent has now begun to be by Englishmen themselves, as a precedent of neutrality, legally and juridically. BOSTON, February 28. GEORGE BEMIS. APPENDIX No. III. ARTICLE OF "HISTORICUS," FROM THE LONDON TIMES OF JANUARY 11, 1865, ON "CONFEDERATE MENACES AGAINST NEUTRAL RIGHTS."* [From the London Times of January 11, 1865.] CONFEDERATE MENACES AGAINST NEUTRAL RIGHTS. To the Editor of the Times: SIR: The history of nations records every variety of attempt on the part of belligerents to break in upon those principles of public law which constitute the sole restraint on their passions and their interests. Nevertheless, I doubt if there can anywhere be found an instance in which any community pretending to the character of a civilized people has ventured upon so open a defiance of justice and of right as that which is flung down to the whole world of neutral nations in a document recently put forth by the confederate government. There is certainly nothing worse to be found even in the insane decrees of the French convention against neutral rights. This confederate paper is so incredibly insolent in its tone, and so extravagantly foolish in its pretensions, that, but for the fact that it is published "by authority" in the Index, (the avowed organ of the confederate government in this country,) I should certainly have taken it for granted that it had been one of those clumsy forgeries which from time to time issue from the American press. However, finding it vouched by such authority, I am bound to accept it as the genuine production of Mr. Benjamin, the confederate secretary of state, and to deal with it as such. This astonishing performance professes to be a dispatch from the secretary of state at Richmond to the confederate secretary of the navy, containing instructions as to the treatment of neutral vessels by confederate cruisers. The origin of the paper is shortly this: It appears that the English Vice-Admiral Hope had called the attention of the captain of the Florida to the fact that the Martaban, a vessel with a British register and papers, had been burnt at sea by the Alabama. The vice-admiral, in a letter certainly not very happily worded, to which I shall presently revert, informed the captain of the Florida of the course he should adopt if such acts were repeated. It cannot be necessary to remind your readers, who are familiar with the recent discussions in the case of the Trent, that for a belligerent forcibly to deal with and dispose of neutral property without a regular adjudication in a prize court, is one of the gravest offenses which can be committed by a belligerent against a neutral nation. Neutrals are only induced to tolerate the exercise, at all times irksome, of belligerent rights by the security which the law of nations has guaranteed to them in the impartial and judicial decisions of a prize court. If this guarantee is violated and this security is removed there is no longer any protection for neutrals, and therefore no longer any prospect of peace. A belligerent cruiser who destroys property prima facie neutral without adjudication is guilty of an act which in its character is piracy and in its result is war. Of all the doctrines of the law of nations this is the most fundamental and the least disputed. The right of the neutral to adjudication before a competent court is an indefeasible right of which no condition of circumstances can be allowed to deprive him; and yet it is this law which the confederate government have publicly announced that they intend to violate and set at naught. It is one thing for a government to be committed by the rash and inconsiderate acts of its military or naval officers; the mischief thus created is sometimes difficult enough to repair; but it is another and much more serious thing when offenses of this kind are the result of instructions authoritatively issued by the government itself; and it is to the latter category that the threatened outrages on neutral rights by the confederate cruisers unhappily belong. In dealing with the federal complaints against Great Britain on account of the acknowledgment of the belligerency of the South I have on former occasions pointed out that the fact of the confederate government possessing no ports into which it could carry its prizes for condemnation afforded no ground for refusing to it the rights of a maritime belligerent. I have further remarked that the consequence of this situation of the South * See dispatch No. 854, from Mr. Adams to Mr. Seward, January 12, 1865, Vol. I, p. 613. was one which no doubt gave to the North the benefit of its maritime superiority, for the South, having no ports, could make no captures upon neutral property, which can only be dealt with by the adjudication of a prize court. This is what the North gains and the South loses by the maritime inferiority of the latter. But it should seem that, while the North are dissatisfied with the advantage which the law of nations thus allots to them, the South are resolved not to endure the loss which the same law imposes upon them. They, unfortunately for themselves, are too weak to command a port into which they can conduct their prizes for adjudication, and therefore they propose to get rid of the difficulty by the simple method of declaring that they intend to dispense with adjudication altogether. That is to say, if it is difficult or inconvenient for you to carry a man presumably innocent to a place where he can be tried, you may lawfully hang him at once without any trial at all. This is the doctrine which the new candidate for a place among the society of nations proposes to introduce into the code of public law. The pretext by which the confederate secretary pretends to justify these monstrous instructions is as ill-founded as the course of conduct they prescribe is indefensible. He makes a grievance of the fact that the neutral powers have prohibited either belligerent from bringing their prizes into the neutral harbors for the purpose of condemnation and sale. Now, there is no right more clearly declared by all writers to be inherent in a neutral government than that of the prohibiting the introduction of prizes for sale into its ports. Some of the best writers hold, indeed, that such a prohibition is an essential duty of neutrality, but none deny that such a course is permissible and proper. England and France have both adopted this rule in the present war. And, as far as I know, the same course has been pursued by all other civilized nations, otherwise the confederates would exercise in the ports of such nations as permitted them the privileges which they complain are denied to them elsewhere. But if to deny the entry of prizes into its ports is-as it unquestionably is-the right of a neutral government, then such a government is not to be told that because it thinks fit to exercise one right it shall therefore be deprived of another. It is no answer to the inalienable right which a neutral has to have captures made upon it adjudicated in a prize court that the captor is unable to find a port into which to carry the prize for adjudication. The only consequence of such a state of things is that the captor must abstain from neutral captures which he is unable legitimately to effect. On this point, if any authority on such a subject were wanting, that of Lord Stowell is expressed: "When it is doubtful whether the capture is enemy's property, and it is impossible to bring it in, the safe and proper course is to dismiss. When it is neutral, the act of destruction cannot be justified by the gravest importance of such an act to the captor's own state.”— The Felicity, 2 Dods., p. 386. If these doctrines had been mere speculative menaces, we might have been disposed to disregard them as a part of that idle rhodomontade to which the American politician is so incurably prone; but unfortunately in this case they have taken the very practical and dangerous form of a "minute of instructions" to the confederate naval officers, introduced by the following solemn paragraph in the secretary of state's dispatch: "The purpose of the President in requesting that the papers should be referred to this department was to obtain for the guidance of the naval officers in command of our cruisers such further and fuller instructions for the discharge of their duties as the experience of the war has shown to be necessary. These instructions I have now the honor to forward to you for transmission to your subordinates. " MINUTE OF INSTRUCTIONS. "The cases which occur for decision by our cruisers may be classified as follows." The following are the classes in which neutral rights are involved: "B. A vessel under enemy's flag, with cargo wholly or in part belonging to nentrals. "C. A vessel really neutral, with cargo wholly or in part belonging to the enemy. "D. A vessel ostensibly neutral, but really hostile, fraudulently placed under a neutral flag and furnished with fraudulent papers as a cover to protect her from capture." Let us see how Mr. Benjamin instructs the confederate cruisers to deal with these several cases. Beginning with class B, he says: "B. A vessel under enemy's flag, with cargo wholly or in part belonging to neutrals. "Under ordinary circumstances this case would present no embarrassment. The captured would be taken into a port of the captors, or of a neutral country; the portion of the cargo belonging to the neutrals would be delivered to the owners, and the vessel, with such portion of the cargo as belonged to the enemy, would be condemned as prize. "The action of neutral governments has placed serious obstacles in the way of doing justice to their own people. They have closed their ports to the admission of captured vessels, and have thus rendered it impossible to make delivery in their own ports of the property of their own subjects found on board of the vessels of our enemies, while it would be exposing those vessels to almost certain recapture to attempt to bring them into our ports; for the captured vessels are almost invariably sailing vessels, and the enemy's cruisers off our ports are steamers." Now, there is nothing more certain than that neutral property not contraband on board an enemy's ship is not liable to belligerent capture. Wheaton expresses himself on this point with his usual precision: "The exemption of neutral property from capture has no other exceptions than those arising from the carrying of contraband, breach of blockade, and other analogous cases where the conduct of the neutral gives to the belligerent a right to treat his property as enemy's property. The neutral flag constitutes no protection to an enemy's property, and the belligerent communicates no hostile character to neutral property." It being, then, the undoubted and unquestionable rule of law that neutral property on board an enemy's vessel is a thing with which a belligerent has no right to meddle or dispose of, let us see how Mr. Benjamin proposes to deal with it. The "inз tions" thus proceed: "If, for instance, Great Britain will not permit a captured enemy's vessel to be carried into one of her ports for the purpose of their delivering to a British subject his goods found on board, she would certainly have no just ground of complaint that the goods were not restored to their owner. If, therefore, on the renewed representations we are about to make, we find neutral nations persist in refusing to receive the property of their subjects in their own ports when captured by us on enemy's vessels, it will become necessary to instruct our cruisers to destroy such property whenever they are unable to bring the prize into our ports." That is to say, in case Great Britain should not, at the orders of the confederate government, reverse the policy which, in common with all the nations of Europe, it has adopted, and allow her ports to be made a market for prizes, then the confederate cruisers will seize, burn, and destroy British property, over which they have no more right than they have over the coffers of the Bank of England, without process of law or color of justice. This is what Mr. Benjamin means to do to us unless we mend our ways; but he intends, it seems, to give us a short space for repentance, and "in the mean time" he will be content with an installment of injustice, for he proceeds: "The commanders of our national cruisers should be instructed to continue their former practice of allowing the enemy to ransom his vessel in cases where the neutral property on board is of large value or bears any considerable proportion to that of the enemy; but if a ransom bond is refused, or if the proportion of neutral property on board is small compared with the value of the vessel and hostile cargo, the whole should be destroyed whenever the prize cannot be brought into a port of our own or of a neutral country." That is to say, the question whether neutrals should or should not be wholly dispossessed of their own property, over which the captor has no right, is to depend upon whether the belligerent captain in whose vessel it is freighted chooses or not to ransom the ship, and on the proportions which the neutral bears to the belligerent cargo. Was so outrageons a scheme ever so coolly propounded? The logic of Mr. Benjamin comes simply to this: "Because you don't choose to ask me to dinner, I will rob your orchard." A man who deals in this fashion with property over which he can have no possible right is not likely to be much more scrupulous in cases where, if he pursued the proper course, he might be entitled to capture. Accordingly, we find that Mr. Benjamin treats the second head of neutral rights in an equally summary and lawless manner. The instructions under class C are as follows: "C. A vessel really neutral, with cargo wholly or in part belonging to the enemy." After an empty flourish about the right of the confederacy to seize enemy's goods on board neutral vessels, in spite of the declaration of Paris, which right, however, the confederate secretary discreetly announces his intention to waive, he thus proceeds: "The cruisers of the confederacy will therefore allow vessels of neutrals to pass free, unless laden with contraband of war destined for the enemy's ports. When such vessels are found to be laden with goods contraband of war, the contraband goods, if not the property of the owner of the vessel, are to be taken out, if practicable, and transshipped or destroyed, and she is to be allowed to continue her voyage. But if the owner of the vessel has put on board contraband goods belonging to himself, destined for the enemy's country, he thereby forfeits the neutral character, and the ship is to be considered an enemy's vessel and to be dealt with as such. No conflict with neutral powers on this subject is to be apprehended, as they have, with entire unanimity, issued proclamations forbidding their subjects during the present war from engaging in contraband trade under penalty of forfeiture of national protection.” That is to say, the question of the contraband character of the goods, and the consequent confiscation of the goods, and even, under certain circumstances, of the vessel itself, is to withdraw from the cognizance of the court to whom the law of nations 4 A C-VOL. IV has remitted it, and is to be adjudicated upon the spot, at the discretion and on the responsibility of the captain. This is what Captain Wilkes pretended to do in the case of the Trent, and we all know how the English government dealt with his decision, though reinforced by personal study of Kent and Wheaton. Mr. Benjamin was never more mistaken in his life than when he supposes that "no conflict with the neutral powers on this subject need be apprehended." It is perfectly true that the neutral powers have notified to their subjects that they will not be protected in a contraband trade; but in order that trade should lose its rights to the protection of the sovereign it is necessary that its contraband character should be established in the only legitimate manner-i. e., by the sentence of a prize court. The confederate government may rest well assured that England will no more trust the decision of such questions to the learning of Captain Semmes than to that of Captain Wilkes. The forcible destruction of neutral property without adjudication is a national insult, which will meet with the most prompt and exemplary chastisement. The next head of the confederate secretary's instructions is, if possible, more preposterous and outrageous: "D. A vessel ostensibly neutral, but really hostile, fraudulently placed under neutral flag and furnished with fraudulent papers to protect her from capture: "The embarrassment in actual practice may be considered as occurring almost exclusively in cases where an enemy's vessel has been, since the commencement of the present war, transferred to neutrals. The law of nations on the subject of the right of a belligerent to make legal sale to neutrals flagrante bello is not settled by universal concur rence. "Our cruisers ought, therefore, to be instructed that where a vessel of the United States has been sold in good faith to a neutral since the commencement of the war, and where the title is so absolutely transferred as to divest the enemy of any future interest in the vessel, she is free from capture. If, however, any enemy's interest in the vessel remain, if she be mortgaged or hypothecated to the enemy, she is as much liable to be dealt with as a hostile vessel as though no transfer to the neutral had been made. "It frequently occurs, however, that a belligerent makes simulated sales of vessels to neutrals with the view of protecting them from capture, and, under ordinary circumstances, when the other belligerent has reason to suspect the good faith of the transfer, the suspected vessel is brought into court for adjudication by the admiralty. "This course is not open to our cruisers for the reasons above explained, and the only instructions, therefore, practicably applicable, under the circumstances, are the following: "The captor should in every case make rigid examination of the papers and documents of every vessel sailing under a neutral flag known to have belonged to the enemy at the commencement of the war. "He should take into consideration the nature of the trade in which the vessel is engaged, the national character of the master, the papers found on board, the place at which the alleged sale to the neutral took effect by delivery of the vessel, and every other circumstance tending to establish the true nature of the transfer, and to satisfy his mind whether the vessel be really neutral or merely disguised as such. "If the captured vessel has double sets of papers, or if papers have been destroyed or subducted by her master during the chase, or if she has continued in the same course of trade and under the same master since the alleged sale to the neutral, it may be safely concluded that the property is still hostile and covered by fraudulent use of neutral flag. "In these and all other cases, when there is great and decided preponderance of evidence to show that the vessel is really enemy's property, the cruiser must act on his conviction and treat her as such, leaving to his government the responsibility of satisfying any neutral claim for her value. "But whenever the evidence leaves serious doubt as to the true character of the transfer, it will be proper rather to dismiss the vessel if she cannot be brought into port, than to exercise a harsh and doubtful belligerent right." Every one in the slightest degree conversant with the literature of prize courts must be aware that the questions here referred to lie inter apices juris. The extent of interest which a belligerent may retain in a vessel ostensibly transferred, the facts which justly lead to the conclusion that an apparent sale is not bona fide-these and all the cognate questions are matters of the nicest and most complicated kind, which require for their just solution the patient and impartial application of judicial analysis of the highest order. And these are the questions which Mr. Benjamin proposes to leave to the instant decision of the confederate captain, who is to "act on his conviction," and to release or burn the ship, according as he may "satisfy his mind" on the subject. Just conceive a captain of a cruiser like the Alabama or the Florida with a rich prize just captured after an exciting chase, descending into his cabin to consider whether "any enemy's interest in the vessel remains," whether she is really mortgaged or |