Charles Francis Adams.

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Compliments of


84 State Street, Boston, Mass.









A Forgotten Diplomatic Episode



I Q I 2

[The following paper, prepared for the Massachusetts Historical
Society, and submitted at its October Meeting, 19 12, appears in the
printed Proceedings of that Society, vol. xlvi. pp. 23-81.]


The period between April 13, 1861^ when Fort Sumter fell,
and July 21, following, which witnessed the Bull Run catas-
trophe — a period of exactly one hundred days — constituted
the first distinctive stage of our Civil War. Formative, during
it the loyal portion of the Union was, so to speak, finding it-
self. In an excited and altogether abnormal condition morally,
it was unreasoning, unreasonable and curiously illogical. As an
interval of time, therefore, the period referred to stands by
itself, to be treated separately from that which preceded or that
which was to follow. Before April 13th and up to that day —
strange as the assertion now sounds — the historic fact is that
the country, taken as a whole, had no realizing sense of the im-
pending. Though anxiety was great and continually increasing, it
was still generally believed that, somehow or in some way, provi-
dential if not otherwise, an actual appeal to arms and a conse-
quent internecine struggle would not take place. Too dreadful
calmly to contemplate, it could not, and consequently would not,
occur.^ The firing on Fort Sumter dispelled this illusion, and an
entire community at last realized the grim, hard facts of a
situation truly appalling. Then, so far as the part of the coun-
try loyal to the Union was concerned, there ensued the hundred
days referred to, — days of artificial excitement and self-
delusion. Fired by patriotism and hterally drunk with enthu-
siasm, the North indulged in a most exaggerated self-confidence,
combined with an altogether undue depreciation of its opponent.

^ "Neither party appeared to be apprehensive of or to realize the gathering
storm. There was a general belief, indulged in by most persons, that an adjust-
ment would in some way be brought about, without any extensive resort to ex-
treme measures. . . . Until blood was spiUed there was hope of conciliation."
Welles, Diary, i. 10, 12, 35, 172, 355-356.


The conflict was to be short, sharp and decisive. A military
walk-over was confidently anticipated; the so-called Confed-
eracy was to be obliterated by one wild rush. The cry of "On
to Richmond," first raised by Horace Greeley in the New York
Tribune, soon became general and irresistible. But the delu-
sion was not confined to the unthinking or less well-informed.
Shared to an almost equal extent by those in official position, it
was reflected in their attitude and stands recorded in their
utterances. This was pecuharly apparent in the management
of our foreign relations through the State Department, of which
Mr. Seward was the head. The awakening — and it was a
terribly rude one — came on the 21st of July, at Bull Run;
and from that day the struggle entered on a wholly new phase.
The community, at first panic-stricken, then soon sobered. The
strength and fighting capacity of the Confederacy had been
unmistakably demonstrated; and, the first artificial flush of
enthusiasm dispelled, the country addressed itself in a wholly
new spirit to the supreme effort to which it at last realized it
was summoned. The magnitude and consequent uncertainty
of the struggle were reahzed.

In the course of a somewhat elaborate historical study my
attention has recently been drawn to an altogether forgotten
diplomatic episode which occurred in that stage of initial
crystallization, and to it I propose to devote this paper. As
an incident in a most critical period, what I have to describe
will, I think, prove not without interest; and, at the time, it
was, as I now view it, of a possible importance appreciated
neither then nor since.

I recently received a letter from our associate, Mr. Frederic
Bancroft, author of the Life of Seward, in which, referring
to an allusion of mine, he said: "Unless you have taken stand
directly against your father and your brother Henry's essay
in regard to Seward's and your father's attitude toward the
attempted accession of the United States, in 1861, to the dec-
laration of Pans of 1856, I very much wish to argue the point
with you, orally, of course."

The allusion recalled the fact, which I had quite forgotten,
that Mr. Henry Adams had prepared such a paper as Mr. Ban-
croft referred to,^ and, moreover, that I had myself nearly

^ Historical Essays, 237-289.

twenty years ago made large use of it in writing chapter xii
entitled "The Treaty of Paris," in the Life ofC. F. Adams, in
the American Statesman Series. Mr. Bancroft had subsequently
gone over the same ground, but I could not recall the conclu-
sions he had reached. In fact, the whole subject had passed
completely out of my memory. I accordingly once more reverted
to it, carefully re-reading Mr. Henry Adams's paper, the chap-
ter (xxxi) relating to the episode in Mr. Bancroft's Seward,
and finally my own effort of a score of years since. The
general historians had not apparently deemed the incident
worthy even of passing notice. In this, as will presently be
seen, I do not concur.

As usual, the more thoroughly I now studied the records,
the more important, involved, and suggestive the episode be-
came. Above all, I was amazed and mortified at the superfi-
cial character of my own previous treatment; for I now found
myself compelled to most unwelcome conclusions, not only
different from those I had previously set forth, but altogether
at variance with those reached by Mr. Henry Adams in his
carefully prepared study. Though peculiarly well-informed as
to the facts, having himself been practically at the time con-
cerned in what occurred, I now found reason to conclude he
had written from the point of view of an active and interested
participant; and since he published his paper fresh material
had come to light. I so wrote at much length to Mr. Bancroft,
with whose subsequently prepared narrative and conclusions I
now find myself in more general, though not in complete,
accord. That letter to Mr. Bancroft supplies the basis of what
I here submit. In submitting it, however, I wish to premise
that in it no regard has been paid to the literary aspect, nor
can it even be considered a finished historical study. Rather
in the nature of a compendium or syllabus, into it I have
put a mass of somewhat heterogeneous matter with a view
to making the same more accessible in future to myself, as
well as other investigators of a highly interesting historical
period. I regard the result, therefore, largely as raw material,
in the accumulation and presenting of which I have to ac-
knowledge much and efficient assistance received from our

For dn intelligent comprehension of what is to follow in its

far-reaching significance and somewhat dramatic interest,
it is, however, necessary to go pretty far back, — so to speak,
to begin at the beginning. Attention has already been called
to the date of the bombardment and fall of Fort Sumter, —
April 13, 1861. Events then followed rapidly. Sumter was
surrendered on Saturday, and the papers of the following
Monday the 15th, contained the proclamation of the Presi-
dent calling for troops, and summoning Congress to meet July
4th in extra session.-^ Two days later, the 17th, Jefferson Davis
responded from Montgomery by declaring the intention of the
Confederacy immediately to issue letters of marque, authorizing
depredations by privateers on the ships and commerce of the
loyal States.^ On the 19th, the Friday of the week following the
fall of Sumter, President Lincoln issued yet another proclama-
tion annoimcing a blockade of the ports of all the seceding States.
In this proclamation it was stated that the blockade was to be
conducted " in pursuance of the laws of the United States and
of the law of nations in such case provided"; and, finally, to
meet the threatened retaUation through privateers and pri-
vateering, it was added "that if any person under the pretended
authority of such [Confederate] States . . . shall molest a ves-
sel of the United States, or the persons or cargo on board of her,
such person will be held amenable to the laws of the United
States for the prevention and punishment of piracy." ^ Two
international issues were thus presented and brought to the front
within the first week following the fall of Sumter. They were
the issues of belHgerency in case of a blockade of the first mag-
nitude, proclaimed to be enforced "in pursuance of the law of
nations," and the logically consequent issue naturally involved
in what is known as privateering. Five days later, on April
24th, a circular addressed to the representatives of the United
States in aU the principal capitals, was issued from the State
Department calling attention to the attitude now proposed to
be assumed by the United States towards what was known as
the Declaration of Paris.

This so-called Declaration was an outcome of the Crimean
War. When, in the summer of 1853, that war broke out, nearly

^ Messages and Papers of the Presidents, vi. 13.

* Messages and Papers of the Confederacy, I. 60.

• Messages and Papers of the Presidents, vi. 14.

forty years had elapsed since the close of the Napoleonic period:
a period during which, as is well known, a system of semi-bar-
barous rules of so-called international law had been ruthlessly
enforced by all beUigerents. In 1853 those rules were still
recognized as obligatory and enforceable, though in abeyance.
As an historical fact, it was undeniable that, on the high seas,
piracy was the natural condition of mah; and, when the arti-
ficial state of peace ceased, into that condition as between those
involved in the strife nations relapsed. To ameliorate this state
of affairs, both possible and imminent, and to readjust in some
degree the rules of international law to meet changed commer-
cial conditions, Great Britain and France, on the outbreak of
the war with Russia, agreed to respect neutral commerce,
whether under their own flags or that of Russia; and, at the
close of the war, the Congress of Paris adopted,' in April, 1856, a
Declaration embracing four heads:

1. Privateering is and remains abolished.

2. The neutral flag covers enemy's goods, with the ex-
ception of contraband of war.

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

4. Blockades in order to be binding must be effective;
that is to say, maintained by forces sufficient really to pre-
vent access to the coast of the enemy.

Great Britain, France, Prussia, Russia, Austria and Turkey
adopted this mutual agreement, and pledged themselves to
make it known to States not represented in the Congress, and
invite their accession to it, on two conditions: (i) That
the Declaration should be accepted as a whole, or not at
all; and (2) That the 'States acceding should enter into no
subsequent arrangement on maritime law in time of war
without stipulating for a strict observance of the four points.
On these conditions every maritime power was to be invited
to accede, and had the right to become a party to the agree-
ment. Accordingly nearly all the nations of Europe and
South America in course of time notified their accession,
and became, equally with the original parties contracting, en-
titled to all the benefits and subject to the obligations of the

Among the rest, the government of the United States was


invited to accede, and, like the other powers, had the right
so to do by simple notification. This was during the Pierce
administration; and Mr. Marcy, then Secretary of State, in
due time (July 28, 1856) informed the governments interested
that the President could not abandon the right to have recourse
to privateers, unless he could secure the exemption of all pri-
vate property, not contraband, from capture at sea; ^ with
that amendment the United States would become a party to
the Declaration.

In other words, in addition to the points agreed on at Paris
the United States contended for the estabHshment of the same
principle on the sea that obtained on land, to wit: the exemp-
tion from capture or unnecessary molestation of all private
property, not contraband of war, including ships. The last
great vestige of the earlier times of normal piracy was, by gen-
eral consent, to be relegated to the past. With the exception
of Great Britain, the more considerable European maritime
powers made no objection to the Marcy amendment. For
obvious reasons connected with her past history and naval
preponderance. Great Britain was understood to oppose it.

President Buchanan's was essentially an "Ostend mani-
festo," or fiHbuster, administration. As such, it felt no call
to the proposed modifications; ^ but when Lincoln succeeded

^ [This policy goes back to 1823, when President Monroe recommended it in
his message of 1823. "I trust you will not take, as I am told some legislative
statesmen have done, the proposition mentioned in the message for abolishing
private war upon the sea to be a mere offer to abolish privateering. You will
understand it as it is meant, a project for the universal exemption of private
property upon the ocean from depredation by war." John Quincy Adams to
Robert Walsh, December 3, 1823. Ed.]

2 [The following has an historical interest in this connection. September 5,
1861, Richard Cobden wrote to James Buchanan saying: "The subject of the
blockade is becoming more and more serious. I am afraid we have ourselves to
blame for not having placed the question of belligerent rights on a better footing."
He then asked a question about the attitude of the United States towards the
Declaration of Paris. Buchanan repUed, December 14, 1861: "In reference to
your question in regard to blockade, no administration within the last half-cen-
tury, up to the end of my term, would have consented to a general declaration
abohshing privateering. Our most effectual means of annoying a great naval
power upon the ocean is by granting letters of marque and reprisal. We could not
possibly, therefore, have consented to the Paris declaration which would have left
the vessels (for example of Great Britain or France) free to capture our merchant
vessels, whilst we should have deprived oiurselves of the employment of the force
which had proved so powerful in capturing their merchant vessels. Hence the
proposition of Mr. Marcy to abolish war upon private property altogether on

Buchanan the aspect of the proposition had, from the United
States point of view, undergone dramatic change. Threatened
with Confederate letters of marque, the government also found
itself engaged in, and responsible for, a blockade of the first
magnitude. Under such circumstances, it was plainly impossible
to forecast all contingencies, and it was very open to question
what policy might in certain exigencies prove the more ex-
pedient; but, on the whole, it seemed to the administration
wisest to endeavor to conciliate Europe.

The question immediately arises, What was intended by the
word "privateering" as used in the Declaration? On that
would seem, in the present case, to have depended the attitude
of the Diplomat at the time and the conclusions of the His-
torian since ; for on this point strange confusion runs through all
the correspondence, memoirs and records. Nor is this con-
fusion peculiar to our Civil War state papers and Kterature.
It is, on the contrary, very noticeable in the writings con-
nected with our anterior wars, both that of Independence and
that of 1812-1815. In the earlier cases it clearly existed in the
minds of those engaged in the discussion. In the case, how-
ever, of the Civil War, the confusion was apparently due in
quite as great a degree to a desire to ignore and confound
manifest and well-recognized distinctions as to any real lack
of a correct understanding of terms.

Up to the middle of the last (nineteenth) century, there were
various recognized forms of ocean depredation.^ Enumer-
ating these in order, they were carried on

1. By pirates, so called, through what was known as "pi-
racy." A familiar term, this calls for no definition.

2. By what were known as "corsairs."

3. By privateers, sailing in time of war under letters of
marque issued by a belHgerent.

4. By regularly commissioned ships of war, belonging to a
recognized belligerent, under whose flag they sailed.

the ocean, as modern civilization had abolished it on the land." Works of James
Buchanan (Moore), xi, 218, 234. Ed.]

^ Throughout the preparation of this paper constant use has been made of
Prof. J. Bassett Moore's invaluable Digest of International Law (1906), and es-
pecially of the collection of authorities and material under the two heads of
Privateers and the Declaration of Paris, vii. 535-583, sees. 1215-1221. Only
in exceptional cases, therefore, is special reference made to this compendium.


There has more recently come into existence a class of vessels
known as "commerce destroyers," constructed not for combat
primarily, but for the purpose of inflicting injury on the com-
mercial marine of a hostile power with which the beUigerent
owning the "commerce destroyer" is at war. The term, how-
ever, refers only to a type of naval construction. It in no way
affects legal classification. The "commerce destroyer" is
simply a pubHc cruiser adapted to a specific purpose.

On these distinctions the whole issue depends. In the minds,
however, of those who carried on the negotiation of 1861, the
distinctions do not seem to have been clear; and the failure
then to observe, or the endeavor to ignore and obscure them,
complicated the whole diplomatic situation, and at more than
one juncture gravely threatened our foreign relations.

The ownership of the vessel sailing under a letter of marque
was, then, of the very essence of privateering. This, in 1861,
established the distinguishing Hne; and so lay at the basis of
Article I of the Declaration. The privateer thus held, so to
speak, a betwixt-and-between position; a privately owned
maritime adventure, its letter of marque, issued by a belliger-
ent, gave it a legal status. But for that it would have been
subject to treatment as a pirate. The distinction is, too, espe-
cially important to be borne in mind while discussing the prob-
lems which developed from the maritime operations conducted
during the Civil War, inasmuch as the value of the privateer,
and the inducement to "privateering," then depended on suc-
cess in the capture of prizes; which prizes, when duly con-
demned, were to be the plunder, or property, of the individual
owner of the privateer. They did not, nor do they belong
to the Government that issued the letters of marque under
which the privateer sails. An individual venture, those con-
cerned in the privateer were to a degree irresponsible. The
point was very elaborately discussed later in the War, by
Secretary Welles, in a series of letters addressed to Secretary
Seward, when it was proposed to issue letters of marque to
Union adventurers supposed to be anxious to chase the Con-
federate cruisers.^

The preservation of the prize, with a view to its, condemna-
tion as such, is, therefore, the great and essential inducement

1 Welles, Lincoln and Seward, 145-173; Diary, i. 246-262.


to privateering. From niere commerce destruction the priva-
teer gets no advantage. This it was, combined with the absence
of any open port where condemnation proceedings were pos-
sible, which ahnost at once put an end to the whole scheme of
Confederate privateering. The obvious fact that it must so do
was pointed out and emphasized by the first Confederate Com-
missioners — Yancey, Rost and Mann — as early as August
14, 1 86 1, in their elaborate communication to Earl Russell of
that date. That Great Britain and France had closed their
ports to prizes of Confederate privateers sailing under letters
of marque, was in the following terms then made subject of
grave remark and implied remonstrance:

The undersigned, however, received with some surprise and re-
gret, the avowal of Her Britannic Majesty's Government that in
order to the observance of a strict neutrality, the public and private
armed vessels of neither of the contending parties would be permitted
to enter Her Majesty's ports with prizes. The undersigned do not
contest the right of the British Government to make such regula-
tions, but have been disposed to think that it has been unusual for
Her Majesty's Government to exercise such right, and that in this
instance the practical operation of the rule has been to favor the
Government; at Washington, and to cripple the exercise of an im-
doubted public right of the Government of the Confederate States.
This Government commenced its career entirely without a navy.
Owing to the high sense of duty which distinguished the Southern
Oflficers, who were lately in commission in the United States Navy,
the ships which, otherwise, might have been brought into Southern
ports, were honorably delivered up to the United States Government,
and the Navy, built for the protection of the people of all the States,
is now used by the Government at Washington to coerce the people
and blockade the ports of one-third of the States of the late Union.
The people of the Confederate States are an agricultural and not a
manufacturing or commercial people. They own but few ships.
Hence there has not been the least necessity for the Government at
Washington to issue letters of marque. The people of the Confed-
erate States have but few ships and not much commerce upon which
such private armed vessels could operate. The commodities pro-
duced in the Confederate States are such as the world needs more
than any other, and the nations of the Earth have heretofore sent
their ships to our wharves, and there the merchants buy and receive
our cotton and tobacco. But it is far otherwise with the people of


the present United States. They are a manufacturing and commer-
cial people. They do a large part of the carrying trade of the world.
Their ships and commerce afford them the sinews of war, and keep
their industry afloat. To cripple their industry and commerce; to
destroy their ships or cause them to be dismantled and tied up to
their rotting wharves, are legitimate objects and means of warfare.
Having no navy, no commercial marine, out of which to improvise
pubUc armed vessels to any considerable extent, the Confederate
States were compelled to resort to the issuance of letters of marque,
a mode of warfare as fully and as clearly recognized by the law and
usage of nations, as any other arm of war; and most assuredly more
humane and more civilized in its practice than that which appears
to have distinguished the march of the troops of the Government
of the United States upon the soil and among the villages of Vir-
ginia. These facts tend to show that the practical working of the
rule that forbids the entry of the pubhc and private armed vessels
of either party into British ports with prizes, operates exclusively to
prevent the exercise of this legitimate mode of warfare by the Con-
federate States, while it is to a great degree a practical protection
to the commerce and ships of the United States.

So much for privateers and privateering. A pirate, on the
other hand, is a common enemy of mankind. He sails under
no flag, and is responsible to no Government. A robber on the
high seas, he is simply an outlaw.^

The public announcement, immediately after the firing on
Sumter, that the Confederacy proposed to issue letters of
marque naturally caused great alarm to the Union authorities,
and the ship-owners of the loyal States. Under the conditions
prevailing in April, May and June, 1861, it well might. W. H.
Russell in his Diary gives a lively and picturesque account of
the state of Jeeling then existing at Montgomery and of the

^ Almost every known term of opprobrium can be found in the Civil War
literature, official and private, applied to vessels sailing under the flag of the
Confederacy. They are thus not infrequently designated " corsairs." This
again was a misuse of terms; for, while a " corsair " is, strictly speaking,

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