Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part II, Volume II

[67] *Part V. The Sumter and Nashvile.

[undated.]

Part V. The Sumter and Nashville. Having examined the miscellaneous charges preferred against Great Britain, but not falling within the limits of the reference to arbitration, such as those which regard the traffic in arms and military supplies, Her Majesty’s government now approaches that part of the Case in which the Government of the United States at length proceeds to specify the vessels to which its claims relate, the failures of duty which it alleges in respect of them, and the nature of the claims on account of those alleged failures of duty. The wide conceptions of neutral obligation which had been previously presented to the tribunal here assume a concrete form, and are made the basis of actual demands upon a neutral power; and we are thus enabled to understand what those conceptions really mean, to what lengths the Government of the United States is prepared (if we may judge from the Case) to carry them, and what is the code of international duty which it proposes to enforce against neutrals, and asks the arbitrators to sanction.

The first vessels in the list are the Sumter and Nashville. There is no material dispute as to the facts relating to these two ships. Both of them were fitted out and armed for war in confederate ports, were there commissioned as public ships by the president of the Confederate States, and thence dispatched to cruise under that commission. Up to that time neither of them, so far as appears, had ever been in a British port. In respect, therefore, of the original outfit and equipment of these ships, the United States have found themselves unable to suggest any fault on the part of Great Britain, or to bring any charge against her. Nor is it suggested that either of them obtained men, arms, or other military supplies, or augmented or renewed in any manner her military equipment within British ports or waters.

the sumter.

[68]
The Sumter. The history of the Sumter has been accurately related in the British Case. It will have been observed that she was a steamship, purchased in a confederate port about or soon after the time of the commencement of the war, by the navy department of the government of the Confederate States; that she had received a crew, and was being actively prepared for war before the end of April, 1861, and upward of a fortnight before the date of Her Majesty’s proclamation of neutrality; that she put to sea as a commissioned cruiser of the Confederate States on the 30th June, 1861; that she entered in succession, during the period of her cruise, the Spanish port of Cienfuegos, the Dutch port of Saint Anne’s, Curaçoa, the Venezuelan port of Puerto Cabello, the British port of Trinidad, the Dutch port of Paramaribo, the Brazilian port of San Juan de Maranham, the French ports of Port Royal and Saint Pierre, in Martinique, the Spanish port of Cadiz, and the British port of Gibraltar. In each of those ports she was received as a commissioned ship of war. At Cienfuegos, Curaçoa, Paramaribo, Trinidad, Maranham, and Martinique, she was suffered to renew her stock of coal and provisions. At Curaçoa she appears to have staid seven days; at Paramaribo, twelve; at Maranham, nine; at Martinique, fourteen; at Cadiz, thirteen.¹ The period of time which elapsed between the dates at which she was suffered to coal at various ports appear to have been as follows, namely, from Cienfuegos to Curaçoa, ten days from Curaçoa to Trinidad, six from Trinidad to Paramaribo., fourteen, from Paramaribo to San Juan de Maranham, six from thence to Martinique, fifty-five; from Martinique to Cadiz, forty-two. As to the quantity of coal which she took on board, she appears to have obtained 100 tons at Cienfuegos, 120 tons at Curaçoa, 80 at Trinidad, 125 at Paramaribo, and 100 at Maranham.² At Martinique she received, by the written permission of the governor, a sufficient stock to carry her across the Atlantic. At Trinidad she had applied for leave to purchase coal from the government stores, but this request was refused, and she procured it from private merchants. The question, whether she was properly received as a ship of war, or ought to have been treated as a pirate, was raised by the United States on two occasions before she touched Trinidad, (namely, on her arrival at Cienfuegos and Curaçoa respectively,) and twice afterward, namely, on her arrival at Maranham and Martinique, and in every case fruitlessly. The right of neutral powers to admit her to the ordinary hospitalities of their ports, and to receive her as a ship of war on the mere declaration of her commander, was upheld and defended in long and carefully reasoned state papers by the governments of Brazil and the Netherlands,³ and was afterward as firmly maintained by France.

Of the prizes taken by the Sumter, eleven were captured before she put in at Trinidad; none between the date of her leaving Trinidad and that of her arriving at Paramaribo, where she took in fresh supplies of coals and provisions; two between Paramaribo and Puerto Cabello; three after leaving Martinique.⁴

It will have been observed that at Gibraltar the Sumter was disarmed and dismantled; her crew were dismissed; she was sold, sent to Liverpool, and never afterward used for war. She had arrived at Gibraltar before the issue of the orders of 31st January, 1862, which limited the period during which belligerent vessels of war were to be suffered to remain in British ports. Those orders, therefore, could not with justice have been applied to her. When she left Gibraltar she left it unarmed, and at the mercy of any United States ship which might fall in with her.

On these facts, the United States ask the arbitrators to find and certify that Great Britain “failed to fulfill the duties set forth in the three rules in Article VI of the treaty of Washington, or recognized by the principles of international law not inconsistent with such rules;” and they ask that, in considering the amount to be awarded to the United States, should the tribunal exercise the power to award a gross sum, “the losses of individuals in the destruction of their vessels and cargoes by the Sumter, and also the expenses to which the United States were put in the pursuit of that vessel, may be taken into account.”¹

So far as Her Majesty’s government is able to understand the grounds of this demand, (setting aside the accusation of “habitually insincere neutrality” against Great Britain,) they appear to be as follows:

“1. That the Sumter was furnished with an excessive supply of coal at Trinidad, which supply enabled her to inflict the subsequent injuries she did on the commerce of the United States.”²

We have here an application of the novel principle asserted in the third part of the Case. The arbitrators had here been told that “if, in these days, when steam is a power, an excessive supply of coal is put into the bunkers “of a belligerent cruiser in a neutral port, the neutral government will, according to the general principles of international law, “have failed in the performance of its duty.” They had been told that, in order to prevent this, the neutral government is bound to apply a “wakefulness and watchfulness proportioned to the exigencies of the case and the magnitude of the interests involved.” The local authorities must, therefore, estimate with precision the quantity of fuel which will probably be necessary, taking into account the sailing qualities of the vessel, to bring her to her nearest port, and to watch with the utmost jealousy lest she should procure more. For any failure in this respect, compensation in money is to be paid to the other belligerent by the neutral nation. The arbitrators are asked to affirm by their award this supposed rule of international law, and, in a case where a cruiser, distant more than 1,000 miles from home, has purchased no more than eighty tons of coal in a neutral port, to charge the neutral nation with the value of all captures made by the cruiser, and the cost of fitting out and keeping at sea all vessels that may have been directed to look after her.

It must be conceded that this view of international law opens a sufficiently alarming prospect to neutral powers. Happily, it is as completely erroneous in principle as it would be intolerably unjust in practice.

[69] International law sets no limit to the quantity of coal which may be obtained by a belligerent cruiser in a neutral port. There is no such thing, therefore, as an “excessive “supply. Whatever such a vessel may require for repairing or renewing her sailing or steaming power, may lawfully be furnished to her; supplies of arms or munitions of war, repairs or alterations of her structure or equipment, serving to augment her warlike force and directly applicable to that purpose, she may not lawfully receive. The general *consent of nations has drawn this line, and it draws no other.³ Even, however, if there had been any foundation for the pretended rule, what proof have the United States given that it was infringed? Where is the evidence that the supply of coal to the Sumter at Trinidad was more than enough to carry her home? There is none whatever. The Sumter procured coal at a port in a British colony, as she procured it before and afterward at Spanish, Dutch, Brazilian, and French ports; in fact, the quantity she received at Trinidad seems to have been less than she got at other places and it is clear that each of those powers is, according to the view of the United States, equally liable, as regards this vessel, to the entire claim which they now make against Great Britain. If any additional fact could make the answer of Great Britain more complete, it would be the circumstance that, in that part of the Sumter’s cruise within which the coal she obtained at Trinidad was exhausted, she made not a single capture.¹ The captures for which compensation is claimed were made four months afterward, with the aid of coal procured, not at Trinidad, but at Martinique.

2. The remaining argument in support of this claim is, that the Sumter ought to have been compelled to leave Gibraltar, (where, according to the United States consul, he had himself made it impossible for her to procure coal for navigation;) and that she was transferred while in that port, by a sale which is alleged to have been fictitious, but which appears from an intecepted letter produced by the United States to have been real.² Whether it was fictitious or not, was a question into which it was not the duty of the British government to inquire, nor was it a matter of much importance to the United States. If the sale was real, the confederate government parted with the ship and got the money; if it was merely nominal, they got no money but retained the right to the ship. How the circumstance that she lay in port, disarmed and without a crew, from January, 1862, to February, 1863, or the sale of her in December, 1862, to a real or nominal purchaser, could have enabled her to make prizes in the year 1861, is not explained to the arbitrators. All her captures having been previously made, the United States suffered no loss in consequence of anything which happened after she entered the port of Gibraltar. Even if this had been otherwise, in what respect do the facts alleged by the United States involve any failure of neutral duty? Orders were issued by Her Majesty’s government, on the 30th of January, 1862, that, if any ship of war or privateer of either belligerent should after the time when the orders should be .first notified and put in force in the United Kingdom or in any colony or dependency of the Grown, enter any port, roadstead, or waters of the United Kingdom, or of any such colony or dependency, she should be required to depart within twenty-four hours, or, if in need of supplies or repairs, as soon as possible after the expiration of that period. The Sumter reached Gibraltar several weeks before these orders had been either notified or issued. The orders were therefore violated, (it seems to be argued,) to the detriment of the United States, by suffering her to remain in port even when disarmed and without officers or a crew. Her Majesty’s government is unable to follow this train of reasoning. It cannot be admitted that this government was under any obligation to enforce orders different from those which it had made, and inflict on a vessel, actually in a British port, the injustice of subjecting her to the operation of an extremely stringent rule, of which she could have had no notice when she entered, and which, if enforced against her, would have exposed her to certain capture or destruction.

“The sale,” it is added, “was a palpable evasion.” “The purchase of .ships of war belonging to enemies is held in British courts to be invalid.” It may be presumed that what the Government of the United States wishes to express is, that a purchase (flagrante bello) of a belligerent ship of war by a neutral, in a neutral port, has been held invalid. This is declared to be a “simple proposition.” It is really very simple, and yet in the Case of the United States it seems to be misunderstood, so as to introduce a confusion as to the relative rights of belligerent and neutral.

[70] The sale of a belligerent ship of war, cooped up by an enemy in a neutral port, has been adjudged in a prize court of that enemy to be invalid; that is, ineffectual to transfer the ownership of the vessel from the belligerent to a neutral, so as to relieve *her from the risk of capture.¹ This was never denied by Earl Russell, nor is it questioned by Her Majesty’s government. But the transaction, though invalid as against the enemy, is not illegal; it violates no law and calls for no interference on the part of the neutral government. Within the neutral jurisdiction, indeed, it is, if not prohibited by the local law, a perfectly valid sale, conveying to the purchaser a title to the ship, which could be displaced only by a regular sentence of condemnation in the enemy’s country. If, after the sale of the Sumter, the British government had protected or undertaken to protect her at sea, as a British ship, against capture by the United States, the latter would have had just cause of complaint. But Earl Russell, instead of undertaking to do this, expressly disclaimed, in his note to Mr. Adams of the 15th January, 1862, any intention of doing so. “Her Majesty’s naval and military officers at that port (Gibraltar) have received instructions not to give any protection to that vessel beyond the waters of Gibraltar.” He gave Mr. Adams all that Mr. Adams asked—certainly all that he had any right to ask.² The Sumter quitted Gibraltar unarmed and unprotected from capture. She was exposed to capture all the way to Liverpool. She was exposed to it when, as a freight-carrying vessel under the British flag, all her warlike fittings having been carefully, removed, she left Liverpool for a port of the Confederate States. She appears to have escaped it only through the fault of the United States cruisers which had been directed to take possession of her; and, because these cruisers failed to execute their orders, Great Britain is now called upon to pay for the expenditure incurred in respect of them, as well as for prizes the Sumter had previously made when commissioned as a ship of war.

It may here be observed that, when the United States minister in London was arguing that the sale of the Sumter ought to be prohibited in Gibraltar, the United States minister at Madrid had admitted that it might be allowed to take place in Cadiz. In a conversation with M. Calderon Collantes, on the 10th of January, 1862, which Mr. Perry afterward reported to his own Government, the latter said, speaking of this vessel:

If they did not choose to go out to sea again, as they had entered, they might stay under the protection of the Spanish flag; and indeed their ship, if she should be sold out of their possession into honest hands, or leave all her armament and munitions of war, laying aside all pretensions to being a war vessel or a privateer of the so-called Confederate States or of anybody else, returning really and honestly to her former condition of a merchant steamer, might perhaps be liable to capture by the Navy of the United States, but she might then be repaired in Cadiz without contravening the royal decree of June 17.¹

the nashville.

The case of the Nashville must fall with that of the Sumter. The supposed failure of international duty which is alleged against Great Britain in respect of the Nashville is merely this: that, having been armed and commissioned as a ship of war in a confederate port, she was, on three different occasions, admitted into British ports and suffered to coal there.

[71] In the Case of the United States we are told that” she took on board,” at St. George’s, Bermuda, “by permission of the governor, 600 tons of coal, and this act was approved by Her Majesty’s principal secretary of state for the colonies.” By the “act” is probably meant the supposed permission of the governor. No act appears to have been done by the governor, and no permission asked or granted but he appears (while refusing to assist the commander of the ship to obtain coal by purchase from the government storey) to have made no objection to his procuring it from private dealers, and to have placed no restriction on the quantity. No order imposing any restriction had then (October, 1861) been issued by Her Majesty’s government, nor by any other neutral power; *and no restriction was or is imposed by any rule of international law. No complaint as to the quantity supplied was made at the time. The amount actually shipped by the Nashville was between 400 and 500 tons.²

At Southampton the Nashville was allowed to coal, the United States ship Tuscarora being allowed to receive a supply at the same time. On her return to Charleston, she again touched at Bermuda, and obtained, from a British merchantman in that port, coal enough to assist her on her return voyage. The decision that depots of coal should not be formed in the island for the use of the cruisers of either belligerent, did not prohibit this act, as it did not afterward prevent United States ships of war from obtaining at Bermuda, on two or three occasions, like supplies when necessary. “She left,” it is said, “under the escort of Her Majesty’s steamer Spiteful.” What is thus described as an “escort “was in truth only a necessary measure of precaution adopted by the admiral on the station. “As, when she sailed, there were several vessels in sight, some of which might have been United States, I thought it advisable,” wrote Admiral Milne, “to send the Spiteful outside, to insure respect being paid to our territorial limits.”³

Her Majesty’s government has deemed it respectful, as well to the United States as to the arbitrators, to examine the claims made in regard to these two vessels, and the reasons which have been produced to justify them. But Great Britain may surely, with some justice, complain of being called upon to meet, before a tribunal of arbitration, demands as to which the sole difficulty consists in treating them as serious, and in discovering how the arguments employed can be imagined to lend them any support whatever.

1. Appendix to British Case, vol. vi, pp. 1, 69, 81, 103, 112, 116; also Semmes’s “Adventures Afloat,” pp. 139, 147, 154, 160, 181, 187, 197, 206, 210, 216, 232, 260, 297, 304.
2. Appendix to British Case, vol. ii, p. 5; vol. vi, pp. 2,69,84; Seinmes’s “Adventures Afloat,” p. 145.
3. These dispatches will he found printed in full, Appendix, vol. vi, pp. 12, 29, 35, 75, 34, 92, 98.
4. See list given in Appendix to Case of the United States, vol. iv, p. 473.
1. Page 327.
2. Page 324.

3. The instructions of 1793 have already been referred to:

   “Equipments in the ports of the United States of vessels of war in the immediate service of the government of any of the belligerent parties, which, if done to other vessels, would be of a doubtful nature, as being applicable either to commerce or war, are deemed lawful.”

   * * * * * *

   “Equipments of vessels in the ports of the United States, which are of a nature solely adapted to war, are deemed unlawful.”

1. Appendix to Case of the United States, vol. vii, p. 214.
2. Ibid., p. 71.
1. This, and no more, was decided by Lord Stowell, in the case of the Minerva, Robin-son’s Admiralty Reports, vi, 396. It is said in the Case of the United States (p 322) that, “after reflecting upon this simple proposition for more than five weeks, Earl Russell denied it.” Earl Russell did not deny it; he pointed out the misapprehension of it into which Mr. Adams had fallen; and the decision that the Sumter was not to be protected, when out of British waters, had been announced and conveyed to the officers of the government at Gibraltar more than three months before. (See British Case, p. 19.)
2. Mr. Adams had asked “the assistance of Her Majesty’s government to prevent any risk of damage to the United States from a frandulent transaction in one of her ports; or, in default of it, of declining to recognize the validity of the transfer, should that vessel subsequently be found by the armed ships of the United States sailing on the high seas.” (British Case, p. 19.)
1. See Appendix to British Case, vol. vi, p. 110.
2. See Appendix to British Case, vol. v, p. 14.

3. Appendix to British Case, vol. ii, p. 127; vol. v, p. 2. The following are the instructions which were given by Admiral Milne to the commander of the Spiteful on the occasion:

   “You are hereby required and directed to put to sea forthwith, in the sloop under your command, and proceed outside on the coast of these islands, with a view of preventing the confederate steamer Nashville, now about to leave the harbor of Saint George’s, from interfering in any way whatever with vessels of any nation so long as they are within three nautical miles of the shore of the Bermudas and their reefs. As soon as the Nashville is out of sight, you will return to anchorage.

   “Given under my hand, on hoard the Nile, at Bermuda, 23d February, 1862.

   (Signed)

   “ALEX. MILNE.

   “To W. C. F. Wilson, Esq.,
   “Commander of Spiteful.

   “By command of commander-in-chief.

   (Signed)

   “S. T. SUCTER,
   “Pro Secretary.”