Mr. Seward called early this morning and read me the draft
of a proclamation for Thanksgiving. I complimented the paper as very well done,
and him for his talent in the preparation of such papers, which pleased him;
but he made a remark to which I did not respond as favorably. He said it had
been formerly claimed that Thanksgivings were a State institution, a State
prerogative; he thought it a good time and opportunity to extinguish that claim
and make such days national. I remarked there might be propriety, as at this
time, in designating a day to be observed throughout the whole country, but
there were occasions when a people in one State or section had reasons for
special thanks, which reasons might not exist in other sections, as for a
bountiful harvest in some latitudes when there might be famine and drought in
others; that the most which could be done was recommendatory, and the practice
was, I believed, now voluntary everywhere, but that until comparatively
recently the observance of Thanksgiving and also of Fast was in my State
compulsory, and "all servile labor and vain recreation" on those days
were "by law prohibited"; that it would hardly do to make this
institution national with mandatory orders, such as some States had ordered.
I called on the President this afternoon relative to certain
proposed instructions which he, at the suggestion of Mr. Seward, wished should
be issued to naval officers. He had been bored with troublesome company and was
weary and exhausted. As I opened my portfolio the quantity of papers disturbed
him. I stated briefly the case, which, being one of Seward's, he did not
distinctly remember, and remarked the subject was, I thought, more important
than he apprehended, that I had given it much time and thought, and it had
increased in magnitude the more I had considered it. He became interested,
recalled the case, and desired me to leave the papers with him and he would
read them by himself. His mind was still confused and he wished to understand
the subject more fully. Mr. Seward, whose inconsiderate and imprudent promises
have involved him in difficulty, and who in consequence aims to involve the
Administration in a most unwise and injudicious proceeding, will have an
opportunity to read and digest my report. It will, I think, do him good and
Lord Lyons no harm. Fox and Faxon both urge me to send a duplicate to the State
Department, that the papers may be placed on file.
[The correspondence
follows.]
Memoranda submitted for the consideration of the President,
upon the proposed Instructions to Naval Officers:—
It is suggested at the instance it would seem of the British
Government, or at least in conformity with its views and wishes, that our Naval
Officers in command of the vessels composing our Navy, and at present engaged
in belligerent operations, shall be instructed by the government in the
following terms: —
“1. — You will avoid the reality, and as far as possible the
appearance, of using any neutral port to watch neutral vessels and then to dart
out and seize them on their departure.”
“2. — You will not, in any case, detain the crew of a
captured neutral vessel, as prisoners of war, or otherwise, except the small
number necessary as witnesses in the prize court.”
In considering the expediency of issuing at this time these
instructions to our Naval commanders, it is proper, in the first place, to bear
in mind, that if issued by us they will be, so far as is known, without any
precedent in the history of the Naval service of any country engaged in war.
It should be observed, in the second place, that such
instructions would impose upon our naval officers restrictions and limitations
in the performance of their duties which are in nowise imposed upon them by any
established principle or fixed rules of international law.
It must be borne in mind, in the third place, as being alike
important and extraordinary, that this government is so urged to issue to its
naval commanders these stringently restrictive instructions, without having the
slightest guarantee that similar restrictions will be imposed in neutral ports
upon the predatory sea-rovers under the rebel flag, whom neutral powers, under
the lead of Great Britain, have already regarded and treated, in these ports,
as having belligerent rights.
It should not be forgotten, in the fourth place, that this
government is now urged to issue these instructions without any assurance by
Great Britain, or any other neutral power, that if issued and acted upon by us
in this war with the rebels, who have no Navy and no commerce, they will be
held by Great Britain, or any other power, to constitute for it a precedent or
a rule of action in its exercise of belligerent rights in any war, civil or
international, in which it may hereafter engage; nor is the slightest
intimation given that such instructions to our naval commanders now will
induce, or tend to induce Great Britain, or any other neutral power, to abandon
or to modify in our favor any course of action or policy in the present war, of
which we have complained, or have had reason to complain.
In the fifth place, these proposed instructions seem to
stand upon an unsound principle. It is a fundamental principle of public law that
the neutral sovereign himself — and not the belligerent cruiser who lawfully
resorts to the ports or waters within his jurisdiction — is the guardian of
this neutrality, and of all its immunities and privileges. In his own prize
courts he must, in every case where he can obtain jurisdiction, do justice,
upon the claim of any party injured by the infraction of his neutral privilege.
In the prize courts of the belligerent government, he, the neutral sovereign,
can alone be heard, even to claim such redress for such violation of his
neutrality. So, too, neutrality having its duties as well as its rights, the
public law holds the neutral government, and it alone, responsible to all
concerned, for any violation of neutrality within the limits of its jurisdiction.
In the absence of treaty stipulations to the contrary, every neutral government
exercises the right to determine and prescribe for itself, upon its
responsibility, the conditions of ingress, egress, sojourn and conduct within
its ports and territorial waters, upon which alone it will permit belligerent
cruisers to resort to those places and enjoy such, and only such, of their
accommodations as it may see fit to afford. Now, in defiance of this
fundamental principle that the neutral government is always the judge of the
conditions upon which the hospitality of its ports may be enjoyed by
belligerent cruisers, it is proposed in these instructions that we, being
belligerents, should gratuitously proceed beyond the requirements of public law
and belligerent usage and establish for all our ships of war, certain
additional restrictive conditions, within which only they shall use any neutral
port. What assurance have we that any neutral government desires us now, or
will desire us hereafter to take such action, restricting ourselves in her
ports, in the exercise, outside of her limits, of our belligerent rights,
either of search or of capture? Will any one neutral power — will Great Britain
herself, at this time — give us assurance that in any future war which may
happen, it, being then neutral, will by municipal regulation, adopt the
stringent terms of the proposed instructions, and make them an indispensable
condition precedent to the use of all her ports by any belligerent cruiser? If
not, then why should we, as belligerents, be expected now to put such a
gratuitous disability upon all our cruisers, in all the neutral ports of the
world? Is it not enough that our cruisers should in all neutral ports obey all
the law, public and municipal, which they find in force there, and in case of
its violation, by accident and against our fixed policy, afford, in the proper
manner, through the judicial tribunals or otherwise, prompt and adequate
reparation?
In the sixth place, it seems to follow from these views,
that to instruct our cruisers, as above proposed, is no part of our business as
belligerents? Therefore such action by us at this time would probably be to
some neutral powers, and ought to be to all powers which are really and earnestly
neutral, unwelcome. It behooves us then to consider upon what instance or
urgency it is that we are to take this action, thus modifying our relations as
they stand under the public law, to every neutral port, and to every ship
claiming to be neutral, but being in fact engaged in illicit navigation or
commerce. No one neutral power has any just ground to ask from us such
wide-reaching action. There should be a neutral unanimity in the request if we
are to grant it; and even then such unanimous request should be accompanied by
stipulations of reciprocity of the rule in all future wars. Such conditions
seem to be required in order to justify us in acceding to a proposition which
goes to the curtailment of our rights in law as belligerents, at a moment when we
have the most arduous blockade to enforce which any nation ever undertook to
make effectual, and the most adventurous and persistent illicit trade to
suppress, against which any nation ever attempted practically and not merely on
paper, to guard.
It is true — and this idea appears to have occurred strongly
to your mind — that the issuing of such instructions by us and obedience to
them by our ships of war, would constitute no infraction of public law, because
it is the unquestionable right of any government engaged in war to surrender
such portions as it sees fit of its belligerent rights and privileges; and no
other injury is, by such surrender, inflicted upon neutrals than that which may
be found in its manifest tendency to enfeeble and thus prolong the war. It
should, however, be remarked that the second of these proposed instructions is
in a direction and of a tendency opposed not only to the universal and
traditional policy of belligerent governments, as expressed in their statutes,
in the rulings of their prize courts and their instructions to cruisers, but
also to what is often insisted upon, especially by neutrals in cases of
capture, as a duty of captors. No adjudged case, it is believed, can be found
in which the prize court, especially in Great Britain, has ever held that the
captor erred in sending in with his prize too many of the officers, crew or
passengers found on board at the time of her capture. Certainly no adjudged
case can be found in which the right of the captor, thus to send in with his
prize as many of the persons found on board of her as he may see fit to send,
has been questioned. The allegation that any person found at the time of
capture on board of any lawfully captured ship has any right, in law,
immediately after the capture, to leave the ship against the will of the
captor, or that the captor is bound in law to give his consent to such leaving,
is believed to be wholly novel. It is undoubtedly true, in general, that the
temptation and inclination of captors are to err in the other direction, and to
retain too few rather than too many of the persons so captured. In so doing
captors subject themselves to the frequent complaints and censures of the prize
court, and not infrequently to its penalties. In fact to instruct a naval
commander never to detain any neutral person found on board the captured
neutral ship, unless such person be necessary as a witness; is to subject the
commander to the harsh necessity of judging upon the spot in a case perhaps
very complicated and important, just how many and what persons may be necessary
as witnesses, with the certainty of being censured by his government for
violation of his orders if he detain too many, and of being censured and
perhaps mulcted by the prize court for insufficient performance of his duty if
he detains too few. It is unnecessary to say that no principle or rule of
international law places a lawfully commissioned, honest and faithful capturing
officer in so critical a position. It is the clear belligerent right of his
government to shield him, while lawfully engaged in his duties, from so severe
and perilous a responsibility. Our gallant naval officers, it is therefore
suggested, might justly feel that the public service in their hands and the
public right were cramped and weakened, and themselves embarrassed, if not aggrieved,
by such an instruction.
In regard to the first of the proposed instructions, it is
not deemed necessary to discuss elaborately, in this paper, the extent to which
its terms augment and aggravate the restrictions which international law,
particularly as expounded and applied by the highest authorities of Great
Britain, both judicial and juridical, impose upon the conduct of commanders of
public ships of war of a belligerent government lawfully sojourning within
neutral ports. It is proper, however, to state that this important point has
been maturely considered, and the leading British authorities examined and
collated with care. Citations from these authorities, with brief comments upon
them, will be found in the accompanying appendix.
Suffice it here to say that while these British authorities
emphatically lay down the rule that no acts of war, either immediate or
proximate, are permitted by the public law to belligerent vessels in waters
within neutral jurisdiction; it is yet with the utmost reserve, circumspection
and tenderness, that they enter upon or even approach the delicate question of
the extent to which the belligerent cruiser, whether a public ship or a privateer
duly commissioned and lawfully sojourning in neutral ports or waters, may,
under international law, in the absence of municipal regulation to the
contrary, avail itself in its act of departure, and after its departure from
such places, of any facilities or remote and indirect aids lawfully obtained
there, for the prosecution of its belligerent operations against the adverse
belligerents, or for the exercise of its belligerent rights upon neutral ships
outside the neutral jurisdiction. Of these facilities and indirect aids,
lawfully obtainable by peaceable means, in the neutral ports and waters, information
often is, and always may be, the most important. In the absence of
municipal regulation to the contrary, such cruiser lawfully sojourning in the
neutral port has a perfect right in public law, in order to obtain such
information, to watch in a peaceable manner, most vigilantly, all vessels in
the port, or coming into it or going out of it; and to dart out of the port
just when he pleases, with the purpose to act upon such information in the
exercise of his belligerent rights upon the high seas, outside of the neutral
jurisdiction, upon all neutral commercial vessels, in the form of search and of
capture, if such search shall discover a probable case of navigation or trade,
illicit as against his government. In so doing, such cruiser has but made an
unforbidden passage over neutral territorial waters, in order to exercise in a
lawful place his belligerent right. This under the public law, in the absence
of municipal restraint, he has a perfect right to do.
If the Sovereign of the neutral port fails to prohibit such
cruiser from using his port as a station for the habitual doing
of these things — as distinguishable from a place of occasional visit and
reasonable sojourn — then the adverse belligerent sovereign certainly, if the
same privilege be refused to him and other neutral governments, perhaps, may
with reason complain of the neutral sovereign's conduct, in allowing his port
to be so used, as "noxious" and "unfriendly," and even
perhaps unneutral. But they have no right in law to complain of the lawfully
commissioned belligerent cruiser for availing himself of the liberty thus
allowed him; and they are bound to consider that if the neutral sovereign does
not prohibit the continuance of such practices — nor demand reparation for them
— by such belligerent, then he intends to allow; and it is for this very reason
that in such case they have sometimes charged him, and him only, with noxious
and unfriendly conduct.
Such being the public law, it seems certain that the Naval
vessels of the United States are not bound by that law, in the absence of
municipal regulations, to govern for themselves their conduct as belligerents,
by the proposed stringently restrictive instructions. This being the fact, if
there were any one neutral government specially urging such instructions, and
if it should happen that the subjects of such neutral government were, in its
own ports and therefore under its own eyes, engaged in furnishing upon a large
scale to the rebels, not only the munitions of war, but vessels, armament and
even crews, for harassing and burning upon the high seas, our commercial ships,
could it be considered our duty or our wise policy to issue, at the instance
mainly of that power and in response to its almost exclusive complaint, such
instructions so restricting our belligerent rights in our use of every neutral
port? But the wisdom of your policy in restricting our Navy in the use of its
belligerent rights within the most vigorous limits of established public law,
is manifest, and is in conformity, not only with the judgment of your wisest
predecessors, but also with the traditional practice of the United States, and
with their permanent interests, as appreciated by the great popular instinct of
the present time. Indeed the enlargement of neutral immunities, in
proper methods and by the common consent of nations, is an object worthy of
your statesmanship, even in the present crisis. Especially is this the case
when, as in this instance, you seek to combine with such liberal policy, a
palpable proof to every government claiming to be neutral, of your desire to
pursue toward it and toward all, to every proper and rightful extent, a course
of conciliation.
In these views, it is respectfully suggested that, if you
are urged by neutral governments to cause these instructions to be issued, the
inquiry may properly be made of them, whether they, or any of them, are willing
to adopt an identical rule of action in any future war, international or
domestic, in which they may be engaged. In that event, the instructions
proposed might, perhaps, upon the assurance to that effect, well receive your
favorable consideration.
If a negative answer on the other hand should be given to
such an inquiry, then it may be well to request any neutral government which
presses this policy upon you, to produce from the records of its own practice
as a belligerent any precedent of identical, or even similar instructions
issued within the present century, to the commanders of its ships of war. Such
precedents might doubtless have considerable weight in inducing you to adopt a
policy in the same direction. Should no such precedent be forthcoming at your
request, then it may be proper in response to any government, — the British
Government for instance — which may especially desire that these proposed
instructions should be issued, or that our belligerent rights as they exist
under the public law should be further restrained by our own action, to request
that any such restraining instructions which may have been within recent memory
issued by such government, when a belligerent, to its naval officers, should
now be furnished to you for your consideration. In such case it will be easy
for the government of the United States to prove that it desires while
maintaining its own belligerent rights not to be surpassed by any other
government in a just and friendly respect for all the rights and lawful
interests of neutrals.
Commander Shufeldt called on me. Thinks the capture
of Charleston impracticable by the force now
there. Says Dahlgren has been a good deal ill, and there has been much to
discourage him. The Army, he says, fails to do justice to the Navy, without
which they would be speedily driven away. There have been some mistakes, errors
which seem to have caused irritation between the two branches of the service.
Dahlgren has not spared himself, and his long and arduous labors have been such
as would wear down a more robust man. More than exhausting physical labor have
been the mental anxieties he has endured, — the loss of his two fleet captains,
jealousies as to his professional advancement without corresponding sea service
or naval achievement in battle, the morbid hostility of such of the Du Pont
clique as remain in the squadron, army antagonism, and ignorance and prejudice
fostered by it.
SOURCE: Gideon Welles, Diary of Gideon Welles,
Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30,
1864, p. 452-67
