Mr. Hammond to Mr. Jefferson.
Sir: I have had the honor of receiving your letter of the 14th instant, upon which, as it announces the fixed determination of this Government not to restore the British ship Roehampton, it is unnecessary for me to offer many observations, or to enter into a minute examination of the reasoning or the facts by which that determination is justified.
I cannot, however, avoid remarking, that although your position may be well founded, “that it would be a measure of incalculable consequences to decide, that the smallest circumstances of military equipment to a vessel in” your “ports should invalidate her [Page 359] prizes through all times;” it may also be a measure of incalculable mischief to the general commerce of friendly powers (excepting that of France) trading with the United States, if the largest circumstance of military equipment, superadded to French privateers, in your ports, provided they elude the vigilance of the officers appointed to watch over proceedings of this nature, shall not be considered by this Government as sufficient to invalidate prizes brought into its ports by vessels under this predicament. In the present case the facts are that the schooner Industry, according to the, deposition of Benjamin Baker, of Baltimore, (at whose wharf and ship-yard she lay during her additional equipment,) had no more than four or six cannon mounted when she was brought to his wharf; that, when she left it, “she had four six-pounders, eight four-pounders, and two howitzers completely mounted;” and that, from Mr. Kilty’s report, it appears that he himself was convinced that she had added to the number of her guns, and had made alterations of a warlike nature; but as he could not learn whence these additional cannon had been procured, he did not deem himself justifiable in refusing his assent to the authenticity of the documents produced by the captain of the vessel, or in detaining her any longer.
The privateer Industry was therefore allowed to depart from Baltimore under an augmentation of force more than double to that of her original appearance in that port; and to which augmentation I have reason to believe that her subsequent capture of the ship Roehampton is, in a great measure, if not entirely, to be imputed.
I have the honor to be, with sentiments of greatest respect, &c.
The seventh article of the treaty of November 19, 1794, after reciting that certain merchants and others of His Britannic Majesty’s subjects had sustained loss and damage by the capture of their vessels and merchandise, taken by vessels originally armed in ports of the United States, agreed that in all such cases where restitution should not have been made, the complaints of the parties should be referred to commissioners, and the United States should undertake to pay to the claimants, in specie, without deduction, the amount of such sums as should be awarded to them respectively by the commissioners. (8 Stat, at Large, p. 121.)
The history of the various steps subsequently taken by the Government of the United States, in its different branches, to maintain its sovereignty and to prevent violations of that sovereignty by agents or representatives of other powers at war with each other, are detailed at length and with fairness by Mr. Abbott, in the memorandum already referred to.
It is claimed as a fair result of a review of that history: First. That Great Britain, which is a great naval power, with a strong government, possessed of all the machinery requisite to enable it to perform its duties, was bound to prevent, at its own risk, the arming, equipping, or construction of any vessels whereby war could be carried on against the United States, upon the ocean, during the hostilities between the United States and the insurgents. Second. That in any particular case, failing of its duties in that respect, Great Britain was bound to arrest and detain any vessel escaping from its ports, whenever it should appear within its jurisdiction. Third. That Great Britain was further bound to instruct its naval forces in all parts of the globe to arrest and detain vessels so escaping, whenever they should be met.
In support of this proposition the following cases and authorities are cited:
1. Reference is made to the correspondence during General Washington’s administration, above quoted, and to the treaty of 1794, already cited.
2. To the speech of Mr. Canning, in 1823, in Parliament, quoted in Phillimore’s International Law, vol. 3, p. 217, as follows:
If I wished (Mr. Canning said) for a guide in a system of neutrality, I should take that laid down by America in the days of the presidency of Washington and the secretaryship of Jefferson. In 1793 complaints were made to the American Government that French ships were allowed to fit out and arm in American ports, for the purpose [Page 360] of attacking British vessels, in direct opposition to the laws of neutrality. Immediately upon this representation the American Government held that such a fitting out was contrary to the laws of neutrality, and orders were issued prohibiting the arming of any French vessels in American ports. At New York a French vessel fitting out was seized, delivered over to the tribunals, and condemned. Upon that occasion the American Government held that such fitting out of French ships in American ports, for the purpose of cruising against English vessels, was incompatible with the sovereignty of the United States, and tended to interrupt the peace and good understanding which subsisted between that country and Great Britain.
Here, sir, [he added,] I contend is the principle upon which we ought to act.
3. During the civil war raging in Portugal, in 1827, 1828, 1829, four vessels left Plymouth ostensibly for Brazil, with six hundred and fifty-two officers and men. The British government of that day, believing that it was destined for Portugal, dispatched a fleet to Terceira, (which, it may be observed, was the place to which the Alabama first went after her departure from England,) with orders, if the expedition appeared, to give them warning against hovering about or making any effort to effect a landing; and, in case of their persistence against the warning, to drive them away from that neighborhood, and to keep sight of them until convinced that they had no intention of returning to the Western Islands or proceeding to Maderia. It became necessary in carrying out these orders to fire upon the expedition. One man was killed, some were wounded, and the expedition was broken up. This act gave rise to an extended debate in Parliament, and the conduct of the government was approved. (Hansard, vols. 23 and 24 N. S. Annual Register History, &c., A. D. 1829, vol. 72,p. 187, et seq.)
4. Mr. Phillimore says: “The courts of the North American United States have decided that foreign ships which have offended against the laws of the United States, within their jurisdiction, may be pursued and seized upon the ocean, and rightfully brought into the ports of the United States for adjudication.” (Vol. III, p. 228, Rose vs. Hinsley, 4 Cranch, 287; Hudson vs. Guestier, Cr. 6, 284.)
Much more evident is this right of capture at sea, when the offense is one against not merely municipal but international law.
5. Sir Robert Collier, on the 23d of July, 1862, on certain affidavits submitted to him, gave his opinion in regard to the Alabama, that it was difficult to make out a stronger case of infringement of the foreign-enlistment act, which, if not enforced on that occasion, was little better than a dead letter; and that it well deserved consideration whether, if the vessel were allowed to escape, the Federal Government would not have a serious ground of remonstrance. (3 Claims, p. 29.)
This opinion was communicated officially to Earl Russell by Mr. Adams, July 24, 1862, (3 Claims, p. 26,) and Sir Robert Collier was, on the 2d day of October, 1863, appointed solicitor-general in the same administration, in the place of Sir Roundel Palmer, made attorney-general.
6. On the 1st of August, 1870, the new foreign-enlistment bill was discussed in the House of Commons. In the course of debate the attorney-general said that “the honor and dignity of the Crown are compromised when the subjects of the Queen take part in hostilities against an ally.”
Mr. Vernon Harcourt said that “no one would differ from Lord Russell’s dictum, that the case of the Alabama was a scandal to the laws of that country, and that those concerned in that disastrous fraud committed one of the most unpatriotic acts of which an Englishman had ever been guilty.” And Sir Roundel Palmer said that “it was the duty of the state to repress any attempt on the part of the private citizen to oppose the public will to be neutral.” (See Foreign Relations, 1870, p. 153, et seq.)
On the 3d of August Mr. Vernon Harcourt said, in a subsequent debate [Page 361] on the same bill, that “the policy of Washington in 1793 was the foundation of the whole of the modern practice on the subject of neutrality.” (Hansard, 3d series, vol. 203, p. 1507.)
7. The case of the “International” and her cargo, adjudicated in the court of admiralty, January 17, 1871, before Sir Robert Phillimore, arose under the new foreign-enlistment act. In rendering the decision the distinguished jurist said:
This statute, passed during the last session, under which the authority of this court is now for the first time evoked, is, in my judgment, very important and very valuable; strengthening the hands of Her Majesty’s government, and enabling them to fulfill more easily than heretofore that particular class of international obligations which may arise out of the conduct of Her Majesty’s subjects toward belligerent foreign states, with whom Her Majesty is at peace.
The London Times of January 18, 1871, commenting upon the decision, says:
* * * * * * *
The war between France and Germany broke out toward the end of the last session, and it was then remembered at the foreign office that our foreign-enlistment act was imperfect, and that a royal commission had recommended its amendment in several particulars. A bill was accordingly introduced in hot haste and hurried through Parliament.
And the Saturday Review of the 21st of January, 1871, says:
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The Americans have been, through the whole course of the Alabama controversy, fully justified in maintaining that defective legislation would in no case exempt a neutral state from the obligations imposed by international law. They were mistaken in supposing that the English government relied on the unsound argument of inability to discharge its duties, although Lord Russell on several occasions showed that the English law was more stringent than that of the United States. If he had contended that Parliament had not armed the Crown with sufficient powers, Mr. Adams or his successors might have conclusively shown that foreign states had nothing to do with the international legislation of England.
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8. Even Lord Russell is disposed to admit that there was a negligence in the case of the Alabama that entailed a liability for her act:
What I should esteem a reasonable answer is one suggested by Mr. Forster, the vice-president of the committee of council on education. I understand him to say that neither the secretary of state for foreign affairs nor the law-officers were in fault, but the official persons employed at Liverpool were wanting in due diligence, and that this country might, in reparation of that neglect, grant compensation for the losses incurred by merchants in consequence of captures made by the Alabama. It appeared to me that, if the officers of the customs were misled or blinded by the general partiality to the cause of the South known to prevail at Liverpool, and that a prima facie case of negligence could be made out, Great Britain might fairly grant a sum equivalent to the amount of losses sustained by the captures of the Alabama. (Speeches and Dispatches of Earl Russell, vol. 2, pp. 259, 260,