In April, 1856, ambassadors from all of the principal European countries met at Paris and adopted as articles of maritime law the following propositions:

“1. Privateering is and remains abolished.

“2. The neutral flag covers enemy’s goods with the exception of contraband of war.

“3. Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy’s flag.

“4. Blockades in order to be binding must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.”

By its own terms the declaration of Paris, as these principles were afterward known, was not to bind any country which did not accede to its terms. The fourth point was already a well-settled principle of international law. The third was looked upon as having almost the force of a maxim of law. The proposition that a neutral flag protects goods of an enemy save contraband of war was one over which there had been much controversy. The employment of privateers had always been regarded as a right which every nation possessed. The United States had never become a party to this declaration, judging it not to be expedient to relinquish the right of using privateers. To do this would have placed the United States at a great disadvantage in a contest with a nation like England which possessed a greatly superior navy. Privateers are a most effective weapon against the commerce of a powerful enemy.

A large navy might easily hold the small navy of an enemy in check, destroy his commerce, and blockade his ports, all at the same time. A small navy aided by many privateers to prey on the commerce of an enemy can easily engage the attention of a very large navy.

The United States had offered to accept the declaration of Paris on condition that it be so amended as to exempt all private property from capture at sea by the public armed ships of an enemy, as well as by privateers. This proposition was refused. If it had been accepted future naval operations would have been limited strictly to the public armed ships of belligerents.⁠[1]

Sir Henry Sumner Maine, a noted English authority on international law, after considering the amount of injury that might be done to his country in case her food supply should be cut off in time of war by the numerous and active privateers of an enemy, says: “It seems, then, that the proposal of the American government to give up privateers, on condition of exempting all private property from capture, might well be made by some very strong friend of Great Britain. If universally adopted, it would save our food, and it would save the commodities which are the price of our food, from their most formidable enemies, and would disarm the most formidable class of those enemies.”⁠[2]

Only five days after the neutrality proclamation was issued, Lord Russell addressed a communication to Lord Lyons at Washington asking the latter to take such steps as he might deem necessary in order to secure the assent of the Confederate government to the last three articles of the declaration of Paris.

On July 5, 1861, Lord Lyons addressed a communication to Robert Bunch, the British consul at Charleston, in which he said: “The course of events having invested the states assuming the title of the Confederate States of America with the character of belligerents, it has become necessary for her majesty’s government to obtain from the existing government in those states securities concerning the proper treatment of neutrals. I am authorized by Lord John Russell to confide the negotiation of this matter to you and I have great satisfaction in doing so. In order to make you acquainted with the views of her majesty’s government, I transmit to you a duplicate of a dispatch to me in which they are fully stated. It is essential, under present circumstances, that you should act with great caution, in order to avoid raising the question of the recognition of the new confederacy by Great Britain. On this account I think it inadvisable that you should go to Richmond or place yourself in direct communication with the central authority which is established there.

“The most convenient course will probably be for you to take advantage of the intercourse which you naturally hold with Mr. Pickens, the governor of the state of South Carolina. I can not doubt that if you explain verbally to Mr. Pickens the views of her majesty’s government, he will have no difficulty in inducing the government at Richmond to recognize, by an official act, the rights secured to neutrals by the second and third articles of the declaration of Paris, and to admit its own responsibility for the acts of privateers sailing under its letters of marque.”

Consul Bunch was unable to see Governor Pickens, who was at that time in the interior of the state looking after his plantation. Mr. Bunch, however, immediately secured the services of an agent in the person of a Mr. Trescot who was very well known to Lord Lyons. Mr. Trescot went at once to Richmond and laid the matter before Jefferson Davis, president of the Confederate States. Mr. Davis expressed regret that the application had not been made in a more formal manner, but he at once called a cabinet meeting for consideration of the matter, after which it was immediately submitted to the Confederate congress. Without delay that body passed the following resolutions:

“Resolved, By the congress of the Confederate States of America:

“1st. That we maintain the right of privateering as it has been long established by the practice, and recognized by the law of nations.

“2d. That the neutral flag covers enemy’s goods with the exception of contraband of war.

“3d. That neutral goods, with the exception of contraband of war, are not liable to capture under the enemy’s flag.

“4th. Blockades in order to be binding must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.”

These resolutions were approved August 13, 1861, and returned at once by Mr. Trescot to Consul Bunch who forwarded a copy of them to Lord Lyons at Washington. His lordship was greatly pleased at Mr. Bunch’s success in this undertaking, and so expressed himself in a communication enclosing a copy of the resolutions and dispatch of the consul to Lord John Russell.

When this matter was brought to the attention of Mr. Seward, he at once demanded the removal of Mr. Bunch. This was peremptorily refused by Lord Russell who replied that “Mr. Bunch was instructed” to conduct the negotiation with the Confederate States, and that “Mr. Bunch therefore, in what he has done in this matter, has acted in obedience to the instructions of his government, who accept the responsibility of his proceedings so far as they are known to the foreign department, and who can not remove him from his office for having obeyed instructions.”

Mr. Bunch’s exequatur was then formally revoked by President Lincoln. Mr. Bunch’s act was a violation of a federal statute which made it an offense for any person not appointed or authorized by the president, to advise or assist in any political correspondence with a foreign government for the purpose of influencing its measures in relation to the United States.⁠[3]

It has been affirmed by an able British writer that this was an “unofficial application made to the Confederate States” since the “channel of communication was a private person.”⁠[4] This position is not tenable, because every communication was strictly official in character, and the mere means of conveying them could not change the character of the communications themselves. The fact that the British government assumed the responsibility for the act is of itself sufficient to establish its official character. The whole proceeding was an official invitation to the Confederacy to exercise those powers which belong only to a sovereign state, to do that which only an independent government can do, namely, to accept and become a party to an international agreement that differed in no sense from a treaty.

While this negotiation was being conducted with the Confederate government, another of similar purport was in progress with the United States government, which was not only willing but anxious to accept the declaration of Paris as a whole. At this point in the proceedings the British government refused to permit the United States to accept the Paris declaration pure and simple, except with the distinct understanding that England was not to interfere in any way whatever with privateering on the part of the Confederate States. What was equivalent to a treaty had been concluded between England and the Confederates, by which the latter were to be allowed the use of privateers.

In explanation of this matter Mr. Blaine says: “The right of privateering was not left untouched except with deep design. By securing the assent of the Confederacy to the other three articles of the Paris convention, safety was assured to British and French cargoes under the American flag, while every American cargo was at risk unless protected by a foreign flag—generally the flag of England. It would have been impossible to invent a process more gainful to British commerce, and more harmful to American commerce.”⁠[5]

AUTHORITIES AND REFERENCES.

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

2. Blaine, James G.: Twenty Years of Congress.

3. Diplomatic correspondence with Great Britain, 1861.

4. Maine, Sir Henry Sumner: International Law.

5. Senate Ex. Documents: 2d Session 37th Congress, Vol. I, and 3d Session 37th Congress, Vol. I.