Before the lapse of sixty days after the beginning of Mr. Lincoln’s administration, Fort Sumter had surrendered after a severe bombardment; seventy-five thousand troops had been called for; and a blockade of the southern ports had been proclaimed. The insurrection was constantly assuming greater proportions and a more threatening attitude. Of actual war there had been none which resulted in bloodshed, except a street fight between Federal soldiers and a Baltimore mob. These events, however, tended to make the relation of foreign powers toward the two governments in America much more delicate and hazardous.

Upon assuming the duties of the presidency, Mr. Lincoln had appointed Charles Francis Adams minister to England. Mr. Adams was carefully instructed to explain to the British government the position of the new administration toward the seceded states and the relation which they sustained to the Union. He was also instructed to say that there was yet hope of a peaceable reconciliation and that, if it was desired to promote the best interests of the United States, foreign powers should be careful to commit no act of so-called neutrality, a move which would only extend aid and sympathy to the secession cause.

It was expected that Mr. Adams would arrive in London early in May and promptly present the views and policy of Mr. Lincoln to the British government. In his report of an official interview with Lord Russell concerning this matter, Mr. Dallas, Mr. Adams’s predecessor in office at London, says: “I informed him that Mr. Adams had apprised me of his intention to be on his way hither in the steamship ‘Niagara,’ which left Boston on the 1st May, and that he would probably arrive in less than two weeks, by the 12th or 15th inst. His lordship acquiesced in the expediency of disregarding mere rumor and waiting the full knowledge to be brought by my successor.”⁠[1]

Notwithstanding this official assurance from Lord Russell that nothing would be done prior to the arrival of Mr. Adams, a course of action was immediately determined upon which seemed designed to give the greatest possible offense to the United States.

On May 6, in answer to a question put to him in the House of Commons concerning the proposed policy of Great Britain toward the Confederacy, his lordship said: “The attorney and solicitor-general, and the queen’s advocate, and the government have come to the opinion that the Southern Confederacy of America, according to those principles which seem to be just, must be treated as a belligerent.”⁠[2] On May 13, the very day that Mr. Adams landed at Liverpool and only a few hours before he arrived in London, as if to exhibit the greatest possible lack of courtesy toward him and the government which he represented, the queen’s neutrality proclamation was issued. It forbade the enlistment of all British subjects on land or sea in the service of either of the contending parties and also warned her majesty’s subjects not to carry officers, soldiers, dispatches, or any article of the nature of contraband of war for the use or service of either the Federals or Confederates. This constituted a complete recognition of the Confederacy as a belligerent power, that is, as entitled, so far as England was concerned, to all those exceptional rights and privileges that international law assigns to sovereign states which are at war with each other.

Perhaps a brief explanation of this matter would not be inappropriate here. All sovereign, or independent, states are governed in their relations toward each other by a collection of rules called international law. These rules or laws are only precedents, maxims and opinions which have acquired all the force of law from having been generally accepted and acted upon and from a sense that it is a matter of great and universal convenience to have some fixed standards for adjusting the disputes of sovereign nations and regulating their conduct toward each other. International law assigns to all sovereign states certain rights, privileges and obligations which are not extended to unrecognized communities or nations. In the beginning of its career an insurgent state can not possess any of the privileges which international law assigns to independent states. To recognize the belligerency of such a state is to accord to it, by the recognizing power, all of those exceptional war privileges and rights which international law would give to it, if it were sovereign. Such recognition carries with it no rights, privileges or conditions except those necessary for conducting hostilities. Insurgents carrying on war without being recognized as belligerents may be treated as rebels, traitors and pirates. When such recognition has been extended to them, they are no longer so regarded, and when captured are treated as prisoners of war. When a foreign power recognizes the belligerency of an insurgent government it thereby places that government and the one with which the insurgents are at war upon an equality so far as war privileges and duties are concerned. A case will serve to illustrate. There was recently a civil war in Brazil. The insurgents were never recognized as belligerents and hence were not entitled to any more rights and privileges than traitors and pirates have. If the Brazilian government had conceded belligerent rights to them, captured insurgents would then have been entitled to all of the rights of prisoners of war. Indeed such recognition would have clothed the insurgents, so far as the Brazilian government was concerned, with all of the war powers, privileges and duties that belong to a sovereign and independent state, but it would have done nothing more.

The same advantages would have been secured to the insurgents, so far as the United States was concerned, if the Federal government at Washington had recognized them as belligerents. In all of their future relations with the United States they would have been placed upon an equal footing with the Brazilian government as regards all war rights, privileges and duties. No other rights would have been conferred, for a recognition of belligerency is only partial in character. No treaty with the United States could have been concluded, neither could any ambassador have been sent to this country, or one received from it.

A hasty recognition of this character by the United States or any other foreign country would have been an act very unfriendly to the Brazilian government.

The right of a foreign state to recognize the belligerency, or even the independence, of an insurgent government, under certain conditions, can not be questioned. The ends and purposes of such recognition, however, may be quite different in character. They may be arranged under two separate heads.

First. The recognition of a mere fact as it actually exists. Where a state of war or of independence exists beyond doubt or question, it may be recognized as a fact. It is not only the privilege but also the duty of foreign states to recognize a state of war, or belligerency, after such state exists in fact. It is not easy to define a state of war, that is, to say precisely how much of force is required and how perfect the organization must be in order to distinguish such a state from that of mere insurrection. Language can not express the idea with exactness. No one will say that a state of war existed during the Dorr rebellion in Rhode Island in 1842, neither will it be pretended that such a state did not exist while the American civil war was in progress. Recognition should be accorded also to a government of whatever origin, after its independence has been fully established. An insurgent government rarely succeeds in achieving its independence at a blow. There is usually a period of struggle and uncertainty during which it is very uncertain whether the new order of things will prevail or not. While such a state of uncertainty exists, it is neither prudent nor wise for neutral nations to acknowledge the independence of an insurgent government, since a fact should not be acknowledged in advance of its actual existence.

Second. The recognition of belligerency or even of independence by a foreign government may be accorded not simply to acknowledge an existing fact but as a means to an end. Such an act would be very unfriendly or even hostile toward the government against which the insurgent power was opposed. France acknowledged the independence of the United States as a means to achieve that result, not as an existing fact.

In view of the foregoing principles and of the circumstances under which the British neutrality proclamation was issued, it becomes very evident that it was deliberately designed to aid and encourage the insurgent cause in the United States, and, at the same time, to discourage and depress the friends of the Union. The proofs are manifest from an examination of the case.

1. Only seventy days before her majesty’s neutrality proclamation was issued, Mr. Lincoln’s administration had assumed the responsibilities of government at Washington. During the preceding administration all departments of government there had become greatly demoralized, and it was necessary to reorganize and purify them before any steps could be taken to offer active resistance to the insurrection. Time enough had not elapsed for the new administration to formulate its views and develop its policy toward the impending difficulties. Although these things were understood at London and Mr. Adams was hourly expected there, yet the British government refused to grant the brief time necessary for him to arrive and present the case of the new administration, before determining upon its course of action. The neutrality proclamation was issued with a haste which was “precipitate and unprecedented,” as Mr. Adams afterward said. The friends of the Union could not but regard it, in the language of Mr. Justin McCarthy, “as an act of unseemly and even indecent haste, as evidence of an overstrained anxiety to assist and encourage the southern rebels.”⁠[3]

2. A state of war did not exist in the United States on May 13, 1861, hence there was no occasion for a neutrality proclamation. From the very nature of the case it would not be easy to say precisely when such a state of war or belligerency did begin to exist, but the United States itself, and not a foreign nation, was the proper authority to pronounce judgment concerning this matter. At the time mentioned above, belligerent rights had not been conceded to the insurgents by the Federal government. The “Savannah,” a Confederate armed steamer, was captured June 3, 1861. Her crew, together with the crews of other such vessels that had been captured, were tried for piracy in a United States court, and, in at least one case, a conviction was obtained.⁠[4] If the belligerency of the South had been recognized by the United States government at that time, such prosecutions and conviction in a Federal court would have been impossible.

3. The action taken by Great Britain did not conform to the usages of friendship in such cases. Mr. Seward has said concerning this matter: “It will be found, we think, that all nations which have desired to practice justice and friendship towards a state temporarily disturbed by insurrection have foreborne from conceding belligerent privileges to the insurgents in anticipation of their concession by the disturbed state itself. A nation which departs from this duty always practically commits itself as an ally to the insurgents.”⁠[5] It was not long after the neutrality proclamation had been issued until the insurrection assumed the character of a great civil war, and belligerent rights were then duly extended to the Confederates by all of the Federal authorities.

In the beginning it was only a personal war, an effort of the Federal government to suppress rebellion on the part of individuals. United States courts have repeatedly held that a state of civil war, that is, a war between governments, one which entitled the Confederates to belligerent recognition, did not exist until after President Lincoln’s proclamation to that effect issued August 16, 1861, in pursuance of the act of congress of July 13, 1861. Belligerent recognition afterward extended by foreign powers would have been entirely in accordance with the principles of strict fairness and neutrality.⁠[6]

4. The Confederacy was composed of states which had withdrawn from the Union in so far as they were able to do so. This had been done by an unconstitutional act known as secession—one whose validity was never at any time admitted by the people of the United States. Their foundation for a government was not solid enough to command any degree of respect or confidence from foreign powers, and therefore at that time not worthy even of recognition as belligerents.

The principle of secession without restraint or opposition of any kind had been established by them when they withdrew from the Federal Union. Their own organization was not a union but a confederation with each state acting in its own “sovereign and independent capacity.”⁠[7] With a government based upon a confederation of states each of which had the privilege of seceding at pleasure, what assurance could be given that treaty obligations would be met, or that debts contracted would be paid, or that any sort of act guaranteed by the common authority would be executed in good faith? Could it have been motives friendly to the United States which induced England to extend belligerent recognition to such a government at that time?

5. It was very well understood in England that the Confederates had no navy worthy of the name, and that their facilities for building ships and manufacturing munitions of war in their own country were very limited. It was doubtless with a view of supplying the Confederates with these things that the neutrality proclamation was issued so early. This is evident from a speech made by Lord Chelmsford in the British parliament in which he said: “If, he might add, the Southern Confederacy had not been recognized by us as a belligerent power, he agreed with his noble and learned friend (Brougham) that any Englishman aiding them by fitting out a privateer against the Federal government would be guilty of piracy.”⁠[8]

6. The neutrality proclamation created the condition of belligerency on the part of the Confederates instead of acknowledging an existing fact. Mr. Adams said concerning this matter: “The British government took the initiative and decided practically that it was a struggle of two sides. And furthermore it pronounced the insurgents to be a belligerent state before they had ever shown their capacity to maintain any kind of warfare whatever except within their own harbors, and under every possible advantage. It considered them a marine power before they had ever exhibited a single privateer upon the ocean. Not a single armed vessel had yet been issued from any port under the control of these people. They were not a navigating people. They had made no prizes, so far as I knew, excepting such as they had caught by surprises. Even now I could not learn that they had fitted out anything more than a few old steamboats utterly unable to make any cruise on the ocean, and scarcely strong enough to bear a cannon of any caliber.”⁠[9]

As has already been stated any organized form of society may be recognized when it has advanced far enough to defend itself against the assaults of enemies, and has exhibited sufficient capacity to maintain binding relations with other powers. But the case is entirely different when a measure of recognition brings about a result which is due to such recognition only.

Mr. Hamilton Fish, President Grant’s secretary of state, has well said of this matter: “The assumed belligerency of the insurgents was a fiction—a war on paper only, not in the field—like a paper blockade, the anticipation of supposed belligerency to come, but which might never have come, if not thus anticipated and encouraged by her majesty’s government.”⁠[10]

Many attempts have been made to defend the course of the British government in this matter. A singularly fair-minded writer in his treatment of other subjects says: “If there was no bellum going on the commerce of the world could not be expected to recognize President Lincoln’s blockade of Charleston and Savannah and New Orleans. International law on the subject is quite clear. A state can not blockade its own ports. It can indeed order a closure of its own ports. But a closure of the ports would not have been so effective for the purposes of the federal government as a blockade. A closure would have been a matter of municipal law only. An offender against the ordinance of closure could be only dealt with lawfully in American waters; an offender against the decree of blockade could be pursued into the open sea.”⁠[11] Lord Stanley once said: “Her majesty’s government had but two courses open to them on receiving the intelligence of the president’s proclamation, namely, either that of acknowledging the blockade and proclaiming the neutrality of her majesty, or that of refusing to acknowledge the blockade, and insisting upon the right of her majesty’s subjects to trade with the ports of the South where the government of the United States could exercise no fiscal control at that time.”

The ablest, perhaps, of English writers upon international law has said in defense of the course of his government: “In many of the southern ports there was a large amount of British property; the cargoes in the Mississippi alone at the end of May were computed to be worth a million sterling, and the greater part of these had been shipped for Liverpool. A blockade had been proclaimed extending over a coast line of some three thousand miles. Letters of marque had been publicly offered, an invitation very tempting to the adventurous and reckless men who are always to be found in every maritime nation. Both the government of the United States and the de facto government of the confederacy had assumed and were actually exercising on the high seas the rights of war; and the neutral who resists the enforcement of those rights does so under the penalty of capture. Branches of trade perfectly lawful before might now be treated as unlawful, and punished by seizure and confiscation. This was the state of facts existing during the first week of May so far as they were known to the English public; and on these facts the government was called upon both by the mercantile community and by some of the warmest partisans of the northern cause to define its position, to recognize or repudiate the blockade, to accept or reject the character of a neutral power, and to publish its decision as widely and as speedily as possible.”⁠[12]

The foregoing arguments may be summed up in two propositions, viz.: that President Lincoln’s proclamation of blockade constituted a prior recognition of the existence of civil war in the United States, and consequent belligerency on the part of the South, and that it was necessary for the British government to do something to protect its citizens and their interests against losses in or near the seat of war.

In answer to the latter proposition it may be said that it was not at all necessary for British subjects to be in any of the places of danger or to remain there, and if they persisted in doing so, they and their interests had as much protection as did the citizens of the United States who were similarly situated, and that they certainly did not require any more.

Was Confederate belligerency recognized by President Lincoln’s proclamation declaring a blockade of the southern ports?

At the time of her majesty’s neutrality proclamation, May 13, 1861, whatever of war that may have existed was not a war of governments, but only of individuals owing allegiance to the federal government. If the authority of the United States was for the time being suspended in some of the states, those states were still component parts of the union. The disturbance was legally and officially held by all of the federal authorities civil as well as military, to be strictly local in character, and as such the government at Washington had an undoubted right to close the ports within the states in insurrection by a blockade, and to forbid all intercourse between strangers and the people of the blockaded cities. The federal authorities also had the right to use the armed and naval forces of the United States to enforce a blockade after that course had been determined upon. The form of closure best adapted to the ends in view was a blockade which was legally declared and executed as a means for subduing a local insurrection, and, until such local trouble actually developed into a state of civil war, the mere fact that certain ports were blockaded did not confer any belligerent rights whatever upon the insurgents. If a mere expedient be adopted by the federal government as a remedy for local insurrection, it does not follow as a consequence that the insurgents are invested with belligerent rights which foreign nations must immediately recognize.

The position that a nation can not blockade its own ports, but can only order a closure of them when they are held by a hostile force, can not be defended, although Mr. Justin McCarthy holds the contrary view of the matter. If the right of blockade be denied under such circumstances, the right of the government to the port is denied; but if the government have no right, then the port becomes free, and would remain so unless it be destroyed by the government that originally held and yet claimed it, because a mere decree of closure without a blockade superadded could not avail anything against a foreign nation that might choose to confer belligerent rights upon the insurgents.

As an example of this, an illustrative case may be cited. During a period of five years succeeding the year 1831, Russia blockaded her own ports on the eastern shore of the Black sea because they were in the possession of Circassian rebels. This blockade was recognized by England without conferring belligerent rights on the Circassians. English claims for losses occasioned by this blockade were surrendered.⁠[13]

In this instance, if the United States chose the blockade as the best form of remedy for the insurrection, and, if the rights and interests of foreigners were threatened thereby, it became the duty of the federal authorities to extend to all such aliens the fullest measure of protection, and to see that their rights were in all cases inviolably respected.

If these views of the case be correct, there can be no defense whatever for the action of the British government with regard to the neutrality proclamation. In the opinion of every unprejudiced mind, it must ever be classed with the long catalogue of unjust acts and international wrongs for which England has been noted in her relations with weaker nations or with stronger countries in distress.

AUTHORITIES AND REFERENCES.

1. American Annual Cyclopedia, 1861.

2. Bemis, George: Pamphlet, “Hasty Recognition.”

3. Blaine, J. G.: Twenty Years of Congress.

4. Bernard, Montague: The Neutrality of Great Britain During the American Civil War.

5. British and Foreign State Papers, Vol. XXVI.

6. Constitution of the Confederate states.

7. Claims against Great Britain, Vol. IV. Public Document, 1st Session 41st Congress.

8. Diplomatic correspondence with Great Britain, 1861, 1867 and 1869.

9. De Gasparin, Agénor: L’Amérique devant l’Europe.

10. Hall, W. E.: International Law.

11. Hansard’s Parliamentary Debates.

12. McCarthy, Justin: History of Our Own Times.

13. North American Review, January, 1862.

14. Senate Ex. Doc.: 2d Session 37th Congress, Vol. I.

15. Sumner, Charles: The Works of, Vol. VII.

16. Text of the Queen’s Neutrality Proclamation. See British Blue Book containing official documents for 1861.