HL Deb 15 June 1863 vol 171 cc874-86
THE MARQUESS OF CLANRICARDE

rose to move, pursuant to notice, for— Copies of any Reports that may have been received from the Admiral commanding Her Majesty's Squadron on the North American and West Indian Station concerning the Protection from Seizure or Visitation afforded to British Merchantmen by the Ariadne and other of Her Majesty's Ships or Gunboats by Convoy or otherwise; and to ask what has been the Result of the Remonstrances made to the United States Government by Her Majesty's Minister at Washington against the Seizure of certain British Vessels. The noble Marquess said, his apology for troubling their Lordships on such a subject was the importance of preserving as clear a definition of the rights of neutrals and belligerents as the nature of the subject would admit of; and our pre-eminent position as a maritime power made it imperative upon us to see that international law on the seas was not violated. The present state of things in the waters of the Bahamas and the West Indies was most extraordinary. An efficient blockade was assumed to exist of a large extent of the American coast, and a considerable amount of British commerce was engaged in violating that blockade. Whether the trade with a nominally blockaded country was legitimate or not might be doubtful, but besides this trade there had sprung up a large and perfectly legitimate trade with. Mexico and our Colonies, which was intercepted by the Federal cruisers. We had submitted long to this; but the thing had now got to such a height, that although the Government refused to admit the accuracy of the statements he had made, our own officers on the station had thought it incumbent on them to interfere for the protection of the interests of our commerce, and for the vindication of the British flag, in a manner which, he ventured to say, was as contrary to international law, as laid down in the text writers, as the outrages which had been inflicted on our commerce by some of the Federal cruisers. On the last occasion when be brought forward the subject, he was told that he had no right to assume that the American Prize Courts would not administer international law fairly and impartially. Be did not mean to say that those cases would not be properly tried in the United States. His complaint was, that the seizure of those ships was wrong ab initio, and he contended that we had a right to demand their restoration and an apology for the seizure. It had been said that we had no right to question the decision of foreign Courts in matters relating to the person and property of British subjects. He denied that doctrine. He held that a country was entitled to question the decisions of a foreign tribunal in respect of its ships and the persons of its subjects. In the latest edition of Mr. Wheaton's work, page 678, was this passage— Grotius states that a judicial sentence plainly against right (in re minimé dubiâ.), to the prejudice of a foreigner, entitles his nation to obtain reparation by reprisals.… So also Byn-kershoek, in treating the same subject, puts an unjust judgment upon the same footing with naked violence in authorising reprisals on the part of the State whose subjects have been thus injured by the tribunals of another State. What were the facts with respect to the Adela, which ship had been tried and condemned in a Prize Court? When, on a former occasion, he mentioned what the decision in respect of this ship was, two noble and learned Lords, both eminent authorities on the subject (Lords Cranworth and Kingsdown), at once asked, was the judgment to which he referred that of the Supreme Court"?—thereby implying the decision was so absurd that no court of high standing could come to it. But he (the Marquess of Clanricarde) contended that no matter what the decision of the Prize Court might have been, we ought to demand the restoration of the ship. The circumstances under which the ship had been seized were stated in papers laid before Congress, copies of which, it was to be presumed, our Minister at Washington had forwarded to the noble Earl at the head of the Foreign Office. In these papers the first report of the captain who hap seized the Adela was stated to be that be saw the vessel attempting to cross the Channel on her way to Nassau. He was required to make a further report as to what the grounds of seizure were; and he then stated he had received official in- formation from a flag officer that a vessel of her description had sailed from Europe, having on board articles contraband of war; and he did not examine her hold, but having a suspicion of her character, deemed it his duty to send her into port. Here, then, was a case of a vessel trading between Liverpool and Nassau, and seized because a United States captain had been informed that a vessel of her description was carrying articles contraband of war. The seizure of the Adela, under such circumstances, was an insult to our flag; and we had a right to demand redress for the act. The vessel was condemned, not for any violation of neutral right, but because the provincial Judge of the Prize Court at Key West knew that his judgment was subject to appeal. The case was not one in which we should wait for the result of an appeal to the Supreme Court, for he should be greatly astonished if any noble and learned Lord stood up and said there was even a primâ facie case to justify the seizure. Several other British ships had been seized under somewhat similar circumstances. The question was not that of a vessel running the blockade. If a ship was seized while doing this, she was subject to confiscation, no matter how harmless the character of her cargo. The case before their Lordships was that of a vessel seized while engaged in a legal trade; and it was the duty of the British Government to prevent the legitimate trade of the country from being so harassed, vexed, and interrupted. In the case of the Peterhoff, she was seized in the same illegal manner, and no proof being found against her, the cargo was discharged, with a view of having a search made for evidence before she was tried. The whole was in keeping with the conduct of the Federal Government with regard to our ships. It was time, therefore, for the Government to demand redress. What was being done by the United States could not be regarded in the light of an attempt to carry out a fair exercise of belligerent rights. The attempt was one to put down our legitimate trade to Nassau and Matamoras, because these places were depots from which the Confederate States received supplies,—Matamoras being in Mexico, and the State of Texas being separated from Mexico by only a narrow channel. Our trade was thus vexed and harassed; but at the same time New York ships carried on a thriving trade both with Nassau and Matamoras. Passes were granted at New York to these ships. Whether this pass system was legal or not he did not know; but, as it was in force, there was the stronger ground for our insisting on a stop being put to this interference with our merchants and their commerce. He had suggested the other day that the Government should send reinforcements to the squadron under Admiral Milne on that station, for the purpose of protecting our commerce; and he was answered by the Secretary of State for Foreign Affairs that this would be war. He was not frightened by hard names, nor did he believe that such assistance would lead to war. But if it did, what object could justify war more completely than the defence of our trade and of those maritime rights which it was at once our duty and our safety to maintain? He contended, that if this protection meant war, we should have had war before now, because while the noble Earl (Earl Russell) was repudiating his doctrine in that House, the English Admiral and captains seemed to be pursuing to a great degree the course which he had recommended. He held in his hand some shipping reports from The Times, as to which it might be said that they were not to be relied on. But in answer to this he could only say, that if the noble Earl had better information, be ought to give it to the world, for this information influenced the rate of insurance and the whole course of our shipping trade. The first statement was contained in a letter from the Havannah— The captain of the Dream arrived, reporting that his vessel was blockaded at Barracoon, about fifteen miles from Havannah. A British gunboat was sent to his assistance, upon the appearance of Which the Federal ship made a speedy retreat, leaving the Dream to prosecute her voyage. It was pretty evident from this that the Federal commander had orders to harass our commerce as much as he could without coming into collision with our vessels. Another of these reports was as follows:— Admiral Wilkes, it appears, had given characteristic orders that a British steamer named the Ruby was to be seized, wherever found, and whether engaged in running the blockade or not. This information having reached the British Admiral, the Ariadne was forthwith despatched in search of the Ruby. She found that vessel coming out of Matanzas, on the coast of Cuba, and convoyed her into Havannah, whence the Ariadne sailed for Key West, and, having returned with the masters of two captured British vessels on board, they found Admiral Wilkes's ship lying within three cables' length of the Ruby. Of course, the Ariadne did not limit her services to convoying that vessel from Matanzas to Havannah. We Shall probably hear by the next mail that she saw her clear of the attentions of Admiral Wilkes and his cruisers before she left her finally, and that the Ruby has escaped the fate with which she has been threatened. Now, he had not the least doubt that the captain of the Ariadne and the British Admiral did their duty; but what they did was entirely illegal, and in protecting the Ruby from visitation, that ship became ipso facto liable to confiscation. Lord Stowell, in the well known case of the Maria, in a judgment which was recognised as sound and indisputable law all over the world, laid it down that by the law of nations, as now understood, resistance of search on the part of a neutral vessel was followed by the legal consequence of confiscation; and, on the same ground, the convoy of this British vessel was a gross breach of maritime law and belligerent rights. Altogether, the state of things on the coast of America was one which ought not to continue. On a former occasion the noble Earl had quoted from the Convention of Russia in 1801; and he would now invite the attention of their Lordships to another portion of that Convention, which declared that vessels of a neutral Power shall not be taken except upon just cause, that they should be judged without delay, and that the procedure should always be uniform, prompt, and legal. The exact words were— Que les vaisseaux de la Puissance neutre ne peuvent être arrêtés que sur de justes causes, ou faits évidents; qu'ils soient jugés sans retard, et que la procedure soit toujours uniforme, prompte, et légate. The Plenipotentiaries at Paris had gone out of their way to make a declaration on this subject with a view to establish what they said was most necessary—a uniform and legal principle; and they declared that "blockades in order to be binding must be really effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy." Yet now, on the very first occasion which had arisen since the Conference at Paris, the Government justified a state of things which was entirely at variance with every principle laid down by writers upon maritime rights and international law. The inefficiency of the blockade was the main cause of the complaint. It was no reproach to the Federal Government that the blockade, which was much more efficient at the beginning of the war, had ceased to be so now. The question was, whether this was a blockade which ought any longer to be recognised; and he thought it perfectly clear that it was not. He bad in his possession shipping reports that he would not read in detail. One was from Bermuda, giving a list of ships which arrived there and which had run the blockade. Another was from Nassau, dated the 2nd of May, and it stated that since the 11th of March twenty-eight steamers had left that port for the blockaded ports, and of these only seven had been taken. One was supposed to have been lost, and some had gone aground, but seventeen were known to have arrived and landed their cargoes; and this from one single port. Another long list gave the names of vessels that had arrived at different ports from the Confederate coast, and very few had been taken. It was a farce to call this a blockade. It has been laid down that a blockade, to be binding, must be really effective—that it must be maintained by a force sufficient really to prevent access to the enemy's coasts. He could refer their Lordships to the opinions of the American Government upon that point, as laid down by Mr. Monroe in 1816. At that period, the Spanish South American Colonies being in revolt, the Spanish Government issued a proclamation setting forth that a certain line of coast embraced within defined limits was in a state of blockade. Mr. Monroe, in reply, declared that the proclamation was eminently repugnant to the law of nations, for several reasons, and particularly because it declared a line of coast several hundreds of miles in length to be in a state of blockade. He would remind their Lordships that the United States Government were now professing to maintain a blockade upon a coast 2,500 miles in length., Mr. Monroe further objected that the proclamation ordered the seizure of neutral vessels at an unjustifiable distance from, the coast, and he remarked that no maxim of the law of nations was better established than that a blockade must be confined to particular ports, and that an adequate stationary force must be maintained at each port to support it. A few months later the Spanish Minister gave the same answer as the United States Government had given to our remonstrances—that the matter should be referred to Courts of Admiralty for information. A few months later, in October 1816, Mr. Irving, the United States Minister at Madrid, denied that information from Courts of Admiralty was necessary, and demanded without delay satisfaction for vessels seized under the proclamation. Two days later the Spanish Government gave way, and the proclamation was withdrawn. He was not aware that the doctrine thus laid down had ever been repudiated by the United States Government, but certainly it was opposed to common sense to suppose that they could maintain a blockade for two years along a coast 2,500 miles in length, impeding our commerce, impoverishing our manufacturers, and stopping the legitimate trade of our ships, thus forcing them into a less legitimate trade, but still not one deserving the stigma which the noble Earl had cast upon it. How was the efficiency of the blockade to be tested except by merchant vessels? He had a letter from a Manchester merchant, whose name he would not mention publicly, but which he would communicate to any noble Lord who might be desirous of knowing it, in which the writer said, that being desirous of seeking for cotton where it could really be obtained, he, in conjunction with one or two others, at the end of last year sent put four steamers to the West Indies. Of the doings of these vessels he gave the following account:— The first of these, a large screw steamer, left Nassau on the 16th of January, and ran the blockade at Charleston three times before the 14th of March, on which day she was sold to other parties. The second was a double-screw steamer. She left Nassau on the 26th of January, and on the 12th of May she had made six successful runs, and on the 18th of May she left for another. The third was a paddle steamer, which left on the 10th of February for her first run, and by the 24th of March she had made six successful runs through the Charleston blockade, averaging about one a week. The fourth was also a paddle steamer, which, after two successful runs through the Wilmingdon blockade, was caught soon after leaving on her third trip. Thus, in less than four months, seventeen successful runs have been made by these four steamers, and in addition to these I have got a screw steamer through the Charleston blockade with a cargo on board of 1,750 bales of cotton and 600 barrels of resin. These facts speak for themselves, and you may make what use of them you may think fit. P.S.—These steamers have run in English goods to the value of about £120,000 sterling, and have run out cotton, &c., to the value of about £200,000. They carried no contraband of war. Profits we shall not speak about. And yet the blockade was kept up notwithstanding such facts, and although every man of common sense in the United States was now convinced that it was impossible to compel the Southern States to re-enter the Union. When was it to come to an end? If Vicksburg were taken, peace would be no nearer. It was the duty of the British Government not to allow these infractions of maritime law to continue, which were, in fact, setting aside all law and practice as hitherto maintained. He would like to know what had been the effect of any remonstrances that bad been made, and whether any ships had been delivered up, and he moved for Copies of any Reports that had been made by our Officers on the North American and West Indian stations.

EARL RUSSELL

My Lords, my noble Friend has given us a lecture upon international law, somewhat desultory in its nature, and containing decisions which rest, I believe, upon no dicta of Lord Stowell or the American courts, nor upon any opinion of any writer upon international law, but are entirely conclusions formed in his own mind of what international law ought to be. Among these conclusions, contradictory as some of them are, I found that my noble Friend says, that the captain of an Amen can man-of-war having explained to his own Government the reasons and grounds for his taking possession of a British merchant ship, if these grounds were not satisfactory, the ship ought to be immediately released. I will not venture to pronounce that opinion, nor will I pronounce an opinion to the contrary; but this I must say, that although the captain at the time did not make that search which he ought to have made, yet when the ship is brought into a port, the search of that vessel may show ground for its capture, and a Prize Court may decide if that vessel was clearly going to an enemy's port, and was carrying contraband of war, and she may be condemned on that proof. My noble Friend says it cannot be condemned, but ought to be released; and I cannot presume to give an authoritative opinion on that question. Then my noble Friend maintains that a merchant ship cannot be seized by a belligerent unless actually breaking the blockade—that is, I suppose, actually attempting to enter the port that is blockaded. Now, I have understood from the various decisions I have read, that if a vessel is found on the high seas, and her cargo and papers prove that she is intended to break the blockade, or carry contraband of war to an enemy, that would be ground of capture on the seas, and that it is not necessary that the vessel should be taken actually attempting to break the blockade. That is another part of international law into which my noble Friend may wish to introduce reform, but I do not think his views are quite consistent with international law as it at present stands. My noble Friend says now, as on a former occa- sion, it is quite clear that the object of the American Government has been to vex and interrupt our commerce; that they could have no other object but to embarrass our legitimate trade, and prevent British merchants from carrying on a perfectly legitimate trade. But in another part of his speech my noble Friend says—and I do not dispute his authority in this—that be has evidence that many vessels have successfully broken the blockade of the Confederate ports, that they have entered with valuable cargoes of merchandise, and supplied the Confederates with articles of which they were in want. If that he the case, is it not possible that the American Government and the American navy, without any wish to destroy our trade, may be suspicious of such aid being given to the Confederates, and that they may search very narrowly and very strictly the vessels they find, some of them no doubt intending to go to neutral ports, but, as they think, not intended for those ports, but for the ports of the Confederates? The two things do not go well together—one, that our commerce is of so perfectly innocent a nature that there can be no pretext for searching our ships, except a wish to vex and embarrass our commerce; and the other, that we are carrying on a most successful trade by running the blockade and introducing goods into the Confederate ports. For my part I am not disposed to attribute to the American Government that malignity against this country and that hostile intention which my noble Friend attributes to them; but I did think it necessary to inform Lord Lyons that there was an impression in this country that several British ships that had been seized did appear to be intended for neutral ports, and that they had been seized in a reckless manner, without sufficient ground. In regard to the particular vessels, the American Government answered that there are sufficient grounds, and that they will be proved before the Prize Courts. Therefore, with regard to the special vessels, I cannot give any information to Parliament, because the questions are still pending before the Prize Courts in America. But with regard to the general statement made and to the general allegations which Mr. Secretary Seward makes in return, I shall have no objection to give to my noble Friend the correspondence which has taken place on that subject. With regard to the other question, the decisions of the Prize Courts, I must say I lament that the Constitution of the United States is such, that instead of being brought at once before the Court of Admiralty, where, generally, you have a very eminent Judge to preside, perfectly well acquainted with the law of nations, such cases go in the first instance before the district courts, then, I think, before a circuit court, and it is only after a considerable delay that they come before the Supreme Court of the United States. I say this because I believe we should all very much respect a decision of the Supreme Court of the United States, and it is to be lamented that there should be a considerable delay before the judgment of that tribunal can be obtained. I believe that the Judge, now at the head of the Supreme Court, though a man above eighty years of age, retains the whole vigour of his faculties; that his memory is furnished with a knowledge of all the cases applicable to the questions that come before him; and his decisions would be received with respect, not only in America, but in this country. Well, my noble Friend went on to discuss the law of blockade, and he laid down propositions which would certainly not be admitted by our Prize Courts. He lays it down, on the authority of Mr. Monroe, that the coast cannot be blockaded, and that you must blockade the particular port and not the coast. We at one time declared a blockade, I think, of the whole coast of France, from Brest to Dunkirk; and when we were at war with America, we proclaimed a blockade of not less than 2,000 miles of coast; and if we ourselves held legitimate a blockade of 2,000; miles of coast, we should still, I apprehend, if we were at war with the United States, hold that such a blockade was a legitimate one. I do not see how we can now say, although we consider the blockade of 2,000 miles of coast to be perfectly legitimate, a blockade of 2,500 or 3,000 miles is such a monster of illegality that we should find it impossible to recognise it. No doubt, Mr. Monroe's statement has been correctly given, and, I dare say, Mr. Washington Irving, at Madrid, may have induced the Spanish Government to yield; but if they did yield, it was on account of their weakness, and not on account of the justice of the American demand. But the very declaration to which my noble Friend refers—namely, the Declaration of Paris—refers not only to the blockade of ports but to the blockade of coasts. [The MARQUESS of CLANRICARDE: Hear, hear!] My noble Friend does not deny that that is the case. Then what becomes of the Monroe doctrine of blockades? Because that doctrine is, that you cannot blockade a coast, but it must be a blockade of a particular port. With regard to this question, having soon after the beginning of the blockade collected together all the reports which came to me from the Admiralty, from captains and commanders of Her Majesty's navy, who had run along the coast and reckoned the number of the ships at each particular port, I asked the Law Officers of the Crown whether the blockade of the southern coast of America was such a blockade as they considered effective according to the Declaration of Paris; and having received their opinion that it was effective, I felt bound not to set up au opinion of my own, not to invent any new theory of blockade, but to be guided by the legitimate authorities, and take that declaration of the Law Officers of the Crown as that by which I should be guided. My noble Friend gave certain instances, as to which my noble Friend the noble Duke, at the head of the Admiralty will be able to give a more correct answer than I can pretend to do; but my noble Friend ended by saying that, in his opinion, this was not an effective blockade, and that we ought immediately to declare it to be a blockade that we could not recognise. I will not say that such a declaration and the acts following it would involve us in war; but it would undoubtedly involve consequences which your Lordships could not contemplate without sorrow and affliction. Yet, I will not use any argument against it. My Lords, persons who come from the same part of the United Kingdom as my noble Friend does, seem to think that the whole of the honour of a nation consists in resisting what they may deem not legal or legitimate, and that you must at once resent it. Now, I do not think that the whole honour of a nation does so consist. It was said by a great historical authority, by Mr. Hume in his account of the reign of James II., in regard to the condemnation of Lord Stafford and the restoration of his honours to his successors, that "the reparation of injustice is the second honour of a nation; but that the performance of justice is the first honour of a nation." My noble Friend says the Americans are endeavouring to destroy your maritime rights, and you ought to resent and obtain reparation; but I say you ought narrowly to examine the case; you ought to wait for anything that may be said on the other side, and I should not be satisfied with any decision that was not based in justice.

THE MARQUESS OF CLANRICARDE

said, he had not stated that a blockade might not be effective because it was extensive—he had only sought to show what high authorities in the United States had laid down as a general principle when they were in the position of neutrals, and such a blockade was enforced. The noble Earl had quoted a very fine sentiment, which their Lordships must all approve, about "the honour of repairing injustice," and he thought the noble Earl was about to conclude that the United States were about to indulge in that luxury; but it had not been shown that there was the shadow of legality in the capture of the ships to which he had referred, or that the United States Government were about to offer any reparation for the injury they had done.

THE DUKE OF SOMERSET

My Lords, the noble Marquess has moved for certain Reports which have been received by the Admiralty from the officers of Her Majesty's squadron on the American station. I wish, therefore, to state the grounds on which I think it would be very inconvenient to lay those Reports upon the table. No doubt, during these protracted hostilities there have been several irregularities committed by the ships of this country as well as by those of the American navy; but for these irregularities apology and reparation were at once made, and a good understanding maintained between the two Governments. Now, I do not think it would be for the advantage of either country, or tend to strengthen the friendly relations between them, to give these Reports of incidents which are now bygone, and with respect to which a thoroughly good understanding was arrived at. As to the conduct of Admiral Wilkes and the other American officers on that station, I wish in justice to them to read a short extract from the last letter we have received from Admiral Milne. In that letter he states, that— The officers under my command who have met Admiral Wilkes have invariably expressed their sense of the courtesy and attention which he has shown to them. Indeed, I may say that in the intercourse which has taken place between the captains of the American navy and our officers no ill feeling has been evinced on either side, but, on the contrary, a feeling of mutual civility, frankness, and cordiality. My Lords, it is, I think, highly creditable to the officers of both navies, that whenever they have met, they have endeavoured during a time when, no doubt, there has been cause for suspicion and irritation, to act with frankness and cordiality towards each other, and to maintain those relations between the two countries which tend to the preservation of peace.

Resolved in the Negative.