VI.—Reply of Mr. Waite, August 8, to the argument of Sir Roundell Palmer, upon the special question as to supplies of coal in British ports to Confederate ships. (See protocol XIX.)
The “special question as to supplies of coal in British ports to Confederate ships,” necessarily involves an examination of the facts and circumstances under which permission to take such supplies was granted.
It is not contended by the Counsel of the United States, that all supplies of coal in neutral ports to the ships of war of belligerents, are necessarily violations of neutrality, and, therefore, unlawful. It will be sufficient for the purposes of this controversy, if it shall be found that Great Britain permitted or suffered the insurgents “to make use of its ports or waters as the base of naval operations against the United States,” and that the supplies of coal were obtained at such ports to facilitate belligerent operations.
1. All naval warfare must, of necessity, have upon land a “base of operations.” To deprive a belligerent of that is equivalent to depriving him of the power to carry on such a warfare successfully for any great length of time. Without it he cannot maintain his ships upon the Ocean.A base of operations essential to naval warfare.
2. A “base of operations” for naval warfare is not alone, as seems to be contended by the distinguished Counsel of Great Britain, (sec. 3, chap, iii, of his Argument,) “a place from which operations of naval warfare are to be carried into effect.” It is not, of necessity, the place where the belligerent watches for, and from which he moves against, the enemy; but it is any place at which the necessary preparations for the warfare are made; any place from which ships, arms, ammunition, stores, equipment, or men are furnished, and to which the ships of the navy look for warlike supplies and for the means of effecting the necessary repairs. It is, in short, what its name implies—the support, the foundation, which upholds and sustains the operations of a naval war.What it is.
This was the doctrine recognized by Earl Russell on the 25th of March, 1862, three days after the Florida got out from the port of Liverpool, and while the correspondence in reference to her construction and outfit was fresh in his mind. In writing to Mr. Adams, at that time, in reference to complaints made of the treatment of the United States vessel of war Flambeau at Nassau, in the month of December previous, he used this language:
On the other hand, the Flambeau was avowedly an armed vessel in the service of the Federal Government. She had entered the port of Nassau, and had remained there for some days, without any apparent necessity for doing so, and the authorities had not been informed of the object of her visit. To supply her with coal might, therefore, be to facilitate her belligerent operations, and this would constitute an infraction of the neutrality prescribed by the Queen’s proclamation of the 13th of May last. (Am. App., vol. i, p. 348.)
3. This “base of operations” must be within the territory of the belligerent or of his ally. A neutral which supplies it violates his neutrality, and may be treated as an ally. A belligerent [Page 514] using without permission the territory of a neutral for such a purpose, commits an offense against the laws of neutrality, and subjects himself to the forcible expulsion of his ships of war, and to all other means of punishment and redress which may be requisite for the vindication of the offended neutral sovereign.It should not be in neutral territory.
4. After the end of the summer of 1861, the insurgents never had any available base of operations for naval warfare within the limits of their own territory. From that time forward until the end of the contest, the United States maintained a blockade of all the insurgent ports, which was recognized by all neutral nations as lawful, and was so far effective as to prevent any vessel of war (unless the Tallahassee and Chickamauga, with perhaps some other small vessels, should be excepted) from using these ports as a base for hostile operations upon the sea. No supplies for such operations were ever obtained there, nor were any repairs effected.The insurgents had no such base within their own territory.
It is true, the Nashville escaped through the blockade from the port of Charleston, but when she escaped she was in no condition for war, and within three days was at Bermuda in want of coal. After there taking on board a full supply, she was enabled to make her voyage of eighteen days to Southampton. The Florida ran the blockade inwards and reached Mobile, where she was detained, more than four months, by the naval forces of the United States. At the end of that time she effected an escape, but with only a short supply of coal, for within ten days after her escape she appeared at Nassau “in distress for want of coal.” After having been fairly set upon her cruise from Nassau, she not unfrequently remained at sea two months and more without renewing her supply.
5. This was at all times known to the British Government. The block-ade was the subject of frequent correspondence between Mr. Adams and Earl Russell, and was acknowledged to be sufficiently effective to bind neutrals.Great Britain knew this.
6. By depriving the insurgents of the use of their base of naval operations at home, the United States obtained a decided and important advantage in the progress of the war. It was a war, on the part of the United States, for the suppression of a wide-spread rebellion against the authority of the Government. At the outset, the power of the insurgents appeared so great, and their organization was so complete, that, in the opinion of the British Government, it was proper they should stand before the world and be recognized as beligerents. The territory, which they claimed as their own and sought to control, embraced a large extent of sea-coast, well supplied with ports and harbors, available for all the purposes of commerce and naval warfare. In fact, it embraced two out of the five navy-yards of the United States, and a port at which extensive preparations had been made for the establishment of a sixth.The advantages of these facts to the United States.
The people of the States not in rebellion, but remaining loyal to the Government, were a commercial people, and largely engaged in navigation. At the commencement of hostilities, the insurgents proclaimed their intention of making war upon this commerce. To prevent this, and to keep such ports as were in the possession of the insurgents from being used as bases of the operations for such a war, the United States at once determined to establish and effect their blockade. With the superior power and resources under the control of the Government, it was able to accomplish this work; and before the insurgents could supply themselves with ships of war, their ports were closed against all effective operations from their own territory as a base.
[Page 515]This advantage was one the United States had the right to retain if within their power so to do. No neutral nation could interfere to prevent it.
7. The loss which the insurgents had thus sustained at home, they endeavored to repair by the use of the ports and territorial waters of neutral nations; and, in point of fact, they did carry on substantially their entire naval warfare against the commerce of the United States from a base of operations outside of their own territory. This fact is not denied. It is entirely separate and distinct from that of “permission” or “sufferance,” which only becomes important when it is sought to charge the neutral, whose territory is used, with the consequences of the use.Efforts of the insurgents to obtain bases of operations in neutral territory.
8. Toleration by a neutral of the use of its ports and waters by the ships of war of a belligerent to facilitate the operations of his naval warfare, is equivalent to a permission to use such ports and waters as a base of naval operations.Toleration of use equivalent to permission.
This principle was recognized by the Emperor of Brazil in his instructions to the presidents of his provinces on the 23d of June, 1863, (Brit. App., vol. i, p. 292.) It was adopted by Earl Russell on the 12th of June, 1862, after the original escape of the Florida from Liverpool, and before the commencement of the correspondence in reference to the construction and outfit of the Alabama, when, in a letter addressed to Mr. Adams, he said:
Attempts on the part of the subjects of a neutral government to take part in a war, or to make use of the neutral territory as an arsenal or barrack for the preparation and inception of direct and immediate hostilities against a state with which their government is at peace, as by enlisting soldiers or fitting out ships of war, and so converting, as it were, neutral territory into a hostile depot or post, in order to carry on hostilities therefrom, have an obvious tendency to involve in the war the neutral government which tolerates such proceedings. Such attempts, if unchecked, might imply, at least, an indirect participation in hostile acts, and they are, therefore, consistently treated by the government of the neutral state as offenses against its public policy and safety, which may thereby be implicated. (Am. App., vol. i, p. 665.)
If such proceedings by subjects, when “tolerated” or “unchecked,” may imply an indirect participation by the neutral in the hostile acts of a belligerent, how much stronger is the implication when the proceedings are those of the belligerent himself.
9. It will not be denied that “toleration,” “permission,” or “sufferance,” by a neutral, in this connection, implies a knowledge of the act or thing tolerated, permitted, or suffered; or, that which is equivalent, a culpable neglect in employing the means of obtaining such knowledge.Toleration implies knowledge.
10. As early as the escape of the Florida from Liverpool, on the 22d of March, 1862, the British Government had knowledge, or, to say the least, had “reasonable grounds to believe,” that an effort was being made by the insurgents to supply, in part, the loss of their own ports, for all the purposes of war upon the Ocean, by the use of those of Great Britain. From that time forward it knew that the insurgents relied entirely upon the ports and waters of neutral nations for the success of their naval warfare. This fact was so notorious, and so well understood in Great Britain, that it was made the subject of special comment by Earl Russell in the House of Commons during the progress of the war. (Am. App., vol. v, p. 535.)Great Britain had reasonable ground to believe that the insurgents intended to use its ports.
11. All the really effective vessels of war ever used by the insurgents were obtained from Great Britain. This is an undisputed fact. Two, certainly, the Florida and the Alabama, were constructed and specially adapted for warlike use in Great [Page 516] Britain, under contracts for that purpose made directly with the insurgent authorities. All this was known by the British Government, long before either of these vessels, after completing their armament and receiving their commissions, appeared at any of the ports of the Kingdom, asking permission to coal or to repair; in fact, it was known before they had appeared in the ports of any nation.Their effective vessels of war came from Great Britain.
For the purposes of this argument, it matters not whether Great Britain did or did not use due diligence to prevent the construction or escape of these vessels. The fact that the insurgents, in procuring them, committed an offense against the neutrality laws of the realm, and subjected themselves to punishment therefor, remains undisputed. The individual agents, who, within British jurisdiction, committed this crime against British municipal law, made themselves subject to the penalties of that law. The authorities of the insurgents, who promoted the crime, subjected themselves to such measures as Great Britain might see fit to adopt in order to resent the wrongs inflicted on her, and to cause her sovereignty to be respected.
12. When these vessels were upon the sea, armed and fitted for war, the insurgents had advanced one step towards providing themselves with the means of prosecuting a war against the commerce of the United States; but they needed one thing more to make any war they might wage successful, and that was a base of operations. Without this, the United States would still, to a limited extent, have remained in the possession of the advantages they had gained by a successful blockade. The great difficulty to be overcome was the supply of coals. To no nation could this fact be more apparent than to Great Britain, the flag of whose magnificent navy was at that time almost constantly afloat in all the principal seas of the world.When obtained they were useless without a base of operations.
13. Great Britain had the undoubted right, upon the discovery of these offenses committed by the insurgents against her municipal laws, and of their violations in her territory of the laws of nations, to exclude by force, if necessary, the vessels, in this manner placed upon the seas, from all the hospitalities usually accorded to naval belligerents, in the ports and waters of the kingdom.They might have been excluded from British ports.
This was the prompt decree of Brazil, when her hospitality was abused by one of these vessels. (Brit. App., vol. i, p. 293.) The Counsel of Great Britain does not deny the power of the British Government to make the same orders.
14. In this way Great Britain might, to a great extent, have prevented the consequences of the original crime committed within her own jurisdiction. It was her duty to use due diligence in her own ports and waters, and, as to all persons within her jurisdiction, to prevent the departure of such a vessel from her territory. If, notwithstanding her diligence, such a vessel was constructed within, and departed from, her jurisdiction, then good faith toward a nation with which she was at peace required that she should, as far as possible, curtail the injurious consequences of the unlawful act which she had been unable to prevent. She owed no comity to a nation that had abused her hospitality. She was under no obligations to open her ports to a belligerent that had violated her neutrality. No belligerent had the right to demand the use of her ports for the accommodation of his ships of war. It was a privilege she could grant or not as she pleased, and if in this respect she treated both belligerents alike, neither had the right to complain. An order which excluded all guilty of the [Page 517] same offense would have operated alike on all who were guilty, but would not have included the innocent.This would have prevented the injuries which followed.
15. The United States had the right, as they did, to demand of Great Britain, that she should use all means within her power to avoid the consequence of her failure to prevent the use of her territory for these unlawful purposes. As has been seen, the insurgents commenced in Great Britain their violations of these particular laws of neutrality. They were flagrant acts. They were accomplished in spite of the United States. They were high offenses against the authority and dignity of the government of Great Britain, and, as Earl Russell afterward said, “totally unjustifiable and manifestly offensive to the British Crown.” (Am. App., vol. i, p. 631.) To permit them to pass unrebuked was to excuse them, and was to encourage future transgressions.The United States requested Great Britain to prevent this abuse of its territory
As was subsequently, on the 27th of March, 1863, said by Mr. Adams, in a conversation with Earl Russell upon this subject:
What was much needed in America was not solely evidence of action to prevent these armaments. It was the moral power that might he extended by the Ministry in signifying its utter disapproval of all the machinations of the conspirators against the public peace. Hitherto the impression was quite general, as well in America as in this country, that the Ministry held no common sentiment, and were quite disposed to be tolerant of all the labors of these people, if not indifferent to them. Here they were absolutely sustaining the rebels in the prosecution of the war by the advance of money, of ships, and of all the necessaries with which to carry on as well by sea as on the land; and upon such notorious offenses Ministers had never yet given out any other than an uncertain sound. The effect of this must he obvious. It encouraged the operations of British instigators of the trouble on this side, who believed that they were connived at, and, so believing, carried on their schemes with new vigor. (Am. App., vol. iii, p. 125.)
Nothing can add to the force of these words. Omission by the British Government to act under such circumstances was nothing less than toleration of the abuses complained of. It was, in short, an implied permission to continue the unlawful practices.
16. Great Britain not only neglected during the whole war to take any measures by which any of the offending vessels of the insurgents would be excluded from the hospitalities of her ports, and their agents prevented from using her territory for facilitating their belligerent operations, but she in effect refused so to do. She did not even send remonstrances to the government of the insurgents, or to any of its agents residing and conducting its affairs within her own jurisdiction.Great Britain refused to prevent it.
On the 4th of September, 1862, Mr. Adams, in a communication to Earl Russell, called attention to the fact that the Agrippina, the bark which had taken a part of the armament to the Alabama, was preparing to take out another cargo of coal to her, and asked that something might be done which would prevent the accomplishment of this object. (Brit. App., vol. i, p. 209.) This communication, in due course of business, was referred to the Commissioners of Customs, who, on the 25th of the same month, reported: “That there would be great difficulty in ascertaining the intention of any parties making such a shipment, and we do not apprehend that our officers would have any power of interfering with it, were the coals cleared outward for some foreign port in compliance with the law. (Brit. App., vol. i, p. 213.) Thus the matter ended.
If there was no power in the officers of the customs to interfere with the shipment of the coals, there certainly was ample power in the Government to prohibit any offending belligerent vessel from coming into the ports of Great Britain to receive them. That, if it would not have [Page 518] stopped the offending vessels entirely, might to some extent have embarrassed their operations.
Again, on the 7th of December, 1863, Mr. Adams submitted to Earl Russell evidence of the existence of a regular office in the port of Liverpool for the enlistment and payment of British subjects, for the purpose of carrying on war against the Government and people of the United States. (Brit. App., vol. i, p. 428.) This communication was by Earl Russell referred to the Law Officers of the Crown, who, on the 12th of the same month, reported: “We have to observe that the facts disclosed in the depositions furnish additional grounds to those already existing for strong remonstrance to the Confederate Government on account of the systematic violation of our neutrality by their agents in this country.” (Brit. App., vol. i, p. 440.) There is no evidence tending to prove that any such remonstrance was then sent. In fact, the first action of that kind which appears in the proof was taken on the 13th day of February, 1865, less than sixty days before the close of the war.
17. The conduct of Great Britain from the commencement was such as to encourage the insurgents, rather than discourage them, as to the use of her ports and waters for necessary repairs and for obtaining provisions and coal.Great Britain encouraged the use of its ports by the insurgents for repairs, and for obtaining provisions and coal.
The Alabama first appeared in a British port, at Jamaica, on the 20th of January, 1863, nearly six months after her escape from Liverpool, and after a lapse of much more time than was sufficient to notify the most distant colonies of the offense which had been committed by her, and of any restrictions which the Government at home had seen fit to place upon her use of the hospitalities of ports of the Kingdom. No such notice was ever given, nor was any such restriction ever ordered.
The Alabama went to Jamaica for the reason that in an engagement with the Hatteras, a United States naval vessel, she had received such injuries as to make extensive repairs necessary. This engagement took place only twenty-five miles from a home port, but instead of attempting to enter it, and make her repairs there, she sailed more than fifteen hundred miles to reach this port of Great Britain. In doing this she had sailed far enough, and spent time enough, to have enabled her to reach any of the ports of the insurgents; but the blockade prevented her entering them, and she was compelled to rely upon the hospitalities of neutral waters. At Jamaica, she was permitted without objection to make her repairs, and to take in such coal and other supplies as she required for her cruise. She was treated, Commodore Dunlop said, as any United States man-of-war would have been treated by him.
On the 25th of the same month (January, 1863) the Florida appeared at Nassau short of coal. Although she was only ten days from a home port, she was permitted to supply herself with coal and other necessaries. On the 24th of the next month she again appeared at Barbados, “bound for distant waters,” but she was in distress, and unless permitted to repair the captain said he would be compelled to land his men and strip his ship. Notwithstanding her past offenses, permission to repair and take on supplies was granted.
These were the first visits of any of the offending cruisers to British waters. They were substantially their first visits to any ports of a neutral nation. The Florida stopped for a short time at Havana, on her way from Mobile to Nassau, and the Alabama was for a few hours at Martinique; but at neither of these places did they take on any coal or make any repairs.
Thus the nation, whose authority and dignity had been so grossly [Page 519] offended in the construction and outfit of these vessels, was the first to grant them neutral hospitalities. From that time her ports were never closed to any insurgent vessel of war; and permission to coal, provision, and repair was never refused.
It is said in the British Counter Case, p. 118, that, during the course of the war, ten insurgent cruisers visited British ports. The total number of their visits was twenty-five, eleven of which were made for the purpose of effecting repairs. Coal was taken at sixteen of these visits. The total amount of coal taken was twenty-eight hundred tons.
The number of visits made by these cruisers to all the ports of all other neutral nations during the war did not exceed twenty. So it appears that the hospitalities extended by Great Britain in this form to the insurgents were greater than those of all the world beside; and yet more serious offenses had been committed against her than any other neutral nation.
They required repairs at about one-half their visits and coal at about two-thirds.
The average supply of coal to vessels of the insurgents was one hundred and seventy-five tons.
Because, therefore, the insurgents did make use of the ports of Great Britain as a base for their naval operations, and the British Government did not use due diligence to prevent, but on the contrary suffered and permitted it, all supplies of coal in those ports to Confederate ships were in violation of the neutrality of Great Britain, and rendered her responsible therefor to the United States.All this constituted a violation of neutrality which entailed responsibilty.