Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 5, 1870
No. 125.
Mr. Motley to Mr. Fish.
Sir: I have the honor to send herewith a copy of the correspondence between Earl Granville and Count Bernstorff, Prussian and North German [Page 171] ambassador, on the subject of neutrality and the exportation of contraband of war, extracted from the Times of 19th ultimo.
I have not sent it before because I have been expecting day by day that it would be published in the usual pamphlet form.
This I now find will not be the case for the present, as a rejoinder is soon expected from Count Bernstorff, which, perhaps, will necessitate a further reply from Lord Granville.
British neutrality.
The following correspondence has passed between the ambassador of the North German Confederation and the secretary for foreign affairs:
“memorandum communicated by count bernstorff to earl granville, september 1, 1870.
“It would be waste of time at the present crisis to enter upon an exhaustive juridical examination of the existing neutrality laws and their ultimate bearing and scope. It is not too late, however, to glance in a practical manner at a question which every hour may cause fresh and momentous complications, especially as affecting national susceptibilities.
“In the first instance there is no question that France has wantonly made war on Germany. The verdict of the world, and especially the verdict of the statesmen as well, as of the public of England, has unanimously pronounced the Emperor of the French guilty of a most flagitious breach of the peace. Germany, on the other hand, entered into the contest with the consciousness of a good cause. She was, therefore, led to expect that the neutrality of Great Britain, her former ally against Napoleonic aggression, however strict in form would at least be benevolent in spirit to Germany, for it is impossible for the human mind not to side with one or the other party in a conflict like the present one. What is the use of being right or wrong in the eyes of the world if the public remains insensible to the merits of a cause? Those who deny the necessity of such a distinction forego the appeal to public opinion, which we are daily taught to consider as the foremost of the great powers.
“In examining from this point of view whether the neutrality of Great Britain has been practically benevolent as regards Germany, it’ is best to reverse the question and to put it in this shape: If Germany had been the aggressor, and, consequently, condemned by public opinion, in what way could the government and the people of the United Kingdom have been able to avoid taking an active part in the struggle, and, at the same time, to prove to France their benevolent intentions? Being short of coal, the French would have been allowed to find here all they needed for their naval expeditions. Their preparations for war not being so far advanced and not so complete as they first thought, the French would have found the manufacturers of arms and ammunitions in this country ready to supply them with, and the British government willing not to prevent their obtaining here, all the material they wanted. This, we think, would have been the utmost aid which Great Britain could have granted to France, without transgressing the letter of the existing neutrality laws, had the parts of aggressor and attacked, of right and wrong, been the reverse of the present condition.
“In the face of the continuous export of arms, ammunition, coal, and other war material from this country to France; in the face of facts openly made a boast of by the French minister of war, and not denied by the British government, it is not necessary to prove that the neutrality of Great Britain, far from being impartial toward that party which has been pronounced to be in the right, is, on the contrary, such as it might possibly have been if that party had been wrong in the eyes of the British people and government. When defending the new foreign enlistment act in Parliament the representatives of the government declared that the law empowered the executive to prevent the export of contraband of war, but that in order to make it effectual toward the belligerents it ought to be generally enforced, and would thus even affect the commerce of this country with other neutrals. This statement, however, cannot be admitted, for there is no necessity to hamper the trade with neutral countries by preventing the exportation of contraband of war to the belligerents. Had the government declared such exportation to the belligerents to be illegal, it would have remained an exception, subject to penalty, if detected. The bona fide trade with neutrals would not [Page 172] in the least have been affected thereby. But the government, far from doing this refused even to accept such propositions as might have prevented direct or clandestine exportation of contraband of war to France; besides, it cannot be admitted that such prohibitive measures could in reality damage the regular and lawful trade of the English people at large. They would merely prevent some rapacious individuals from disregarding the verdict of the nation, and realizing enormous profits which never would have legitimately been made under ordinary circumstances. The rapid increase of the private fortunes of a few tradesmen by such ventures could not appreciably add to the national wealth of the country. But, on the other hand, the nation will be held morally responsible for the blood which is being shed through the agency of those individuals. It will be said that the war would have ended sooner, and that less German soldiers would have been killed and wounded, had not the people and government of England permitted such abuses.
“It hardly could be seriously meant to say that the Germans are at liberty to bring each case before their prize courts, for it would be out of place thus to taunt Germany with not being mistress of the seas. The question is whether England may escape the just reproach on the part of Germany of having greatly increased the advantage France already possesses at sea, by fitting out her navy with the requisite material to attack the seaboards of Germany and annihilate its commerce, as well as of arming the French Garde Mobile with English breech-loaders, to be used against the German soldiers in the field.
“England will thus be accused of feeding a war which would have ended sooner had France been left dependent on her own resources. Hence the policy of the British government, notwithstanding the verdict of public opinion in this country in favor of the German cause, is, if not intentionally, at least practically, benevolent to France, without there being any real foundation for the excuse that the commercial interests of this country would be seriously affected by a different course.
“There is still another reason put forward by the British government in reference to their line of action. It is the allusion to Prussian neutrality during the Crimean war. Germany is told to consider that, at that time, ‘arms and ammunition were freely exported from Prussia to Russia; and arms of Belgian manufacture found their way to the same quarter through Prussian territory in spite of a decree issued by the Prussian government prohibiting the transport of arms coming from foreign states.’
“Lord Granville says, in his circular of the 11th instant, ‘that reflection upon these points may make the German nation inclined to take a juster view of the position now occupied by her Majesty’s government.’
“All who recollect the political aspect of that time will admit that there is no real analogy between the two cases. At the period alluded to public opinion, in Germany was very doubtful as to the wisdom of helping a Napoleon to become once more the arbiter of Europe. Besides, it was not a struggle for life and death between two nations equally matched, but it was a war waged in remote regions for remote interests by four powers against one, without the national existence of England being the least endangered.
“Had England alone been the enemy of Russia, the comparison of the two cases would be less wanting in point.
“However, it will be remembered how strongly Great Britain remonstrated at the time against the alleged wrong of Prussia. There is but one possible alternative. Either the complaints of the British government were founded, or they were not. If they really were, how can it be maintained at present that the complaints of Germany are unfounded, should even the great difference of the two cases be entirely disregarded? By declaring the present grievances of Germany devoid of foundation the British government disavow implicitly the bitter charges they preferred at the time, and condemn the ill-feeling created by them, and partly entertained ever since in this country against Prussia.
“It is absolutely impossible to conciliate, with any show of reason and logic, defending the justice of those charges on one side and refusing on the other to acknowledge the present grievances of Germany to be well founded.
“This being true, there is but one motive which might be alleged as an excuse for the present policy of the British government toward Germany. That is to apply the principle of retaliation for an alleged wrong done a long time ago under circumstances completely different from the present situation in every possible respect.
“To establish in our times such a principle as a rule for the policy of a great nation would be too inconsistent with the general feeling and moral disposition of this country to admit of its being the intention of the British government.
“Should the position now occupied by the British government in regard to Germany, notwithstanding the admitted justice of her cause, continue to be maintained, it would be difficult even for the stanchest advocate of friendship between England and Germany to persuade the German nation that they have been fairly dealt by.
“Prussia House, August 30, 1870.”
[Page 173]“Earl Granville to Count Bernstorff.
“Foreign OfficeSeptember 15, 1870.
“M. l’Ambassador: I have the honor to assure your excellency that her Majesty’s government have not failed to consider most carefully the arguments contained in the memorandum which you did me the honor to place in my hands on the 1st instant, and have studied them the more attentively as they contain matter which has not hitherto been imported into discussions upon the duties of neutrals.
“The two principal positions assumed by your excellency are, first, that the attitude of Great Britain toward Prussia in the present war should be that of a ‘benevolent neutrality;’ and, secondly, that there is no analogy between the course adopted by Prussia when Great Britain was at war with Russia and that adopted by Great Britain now that Prussia is at war with France.
“In examining these propositions her Majesty’s government are relieved from the necessity of entering at present into the question whether Great Britain is honestly fulfilling her duties as a neutral. The point raised by you goes far beyond this. It amounts to a demand that her neutrality should be, both in spirit and practice, benevolent toward Prussia, and, consequently, as it would seem, unfavorable toward France.
“Upon the declaration of hostilities, her Majesty’s government publicly declared that they were desirous of maintaining their good relations with, and tendering their good offices to, both the belligerents, as far as was consistent with perfect neutrality. But the idea of a ‘benevolent neutrality,’ as explained by your excellency, is new, and it consequently becomes necessary to consider what is its meaning, and what would be its practical effect.
“It is obvious that your excellency cannot intend to lay down a principle applicable only to the present war; rules of international law cannot be confined to individual or exceptional cases; and this principle, if accepted, can only be so as a principle of international law, and, as such, susceptible of general application. This applied, then, its effect would be as follows: That, on the outbreak of a war between two nations, it would be the duty of each neutral to ascertain which belligerent was favored by the public opinion of its subjects, and to assume an attitude of neutrality benevolent toward that belligerent. But such neutrality should not, as I gather from your excellency’s memorandum, be confined to sympathy, but should be exhibited in practice—that is to say, the measures adopted by each neutral should be favorable to one belligerent and proportionately unfavorable to the other. It seems hardly possible to push the examination further without finding ourselves met by insuperable difficulties. Where could the line be drawn between a departure from the usual practice, in order to confer material advantages on one belligerent state, to the exclusion of the other, and a participation in hostilities? The sympathies of nations, as of individuals, are hot invariably influenced by abstract considerations of right or wrong, but are swayed by material interests and other causes. Neutrals would probably, therefore, be found ranged on different sides. What would be the material relations of such neutrals? What their relations with the belligerent to whom they were opposed? It seems hardly to admit of doubt that neutrality, when it once departs from strict impartiality, runs the risk of altering its essence, and that the moment a neutral allows his proceedings to be biased by predilection for one of two belligerents he ceases to be a neutral. The idea, therefore, of benevolent neutrality can mean little less than the extinction of neutrality.
“Passing to the second proposition laid down by your excellency, that there is no real analogy between the conduct of Prussia in the Crimean war and that of Great Britain in the present war, I find that this proposition is mainly rested on the ground that Great Britain, in the former war, was not fighting single-handed, and that public opinion in Germany was not enlisted in favor of the cause for which she was contending. These two reasons may be brought under the same head, as both can only be adduced with any weight in justification of a position of benevolent neutrality; but, as this justification was not preferred at the time by Prussian statesmen in discussing this question, it will be useful to consider what was the attitude of Prussia during the war waged by Great Britain and her allies against Russia, and what were the motives alleged at the time for her assuming that attitude.
“During the whole of the war arms and other contraband of war were copiously supplied to Russia by the states of the Zollverein; regular agents for traffic were established at Berlin, Magdeburg, Thorn, Königsberg, Posen, Bromberg, and other places, and no restraint was put upon their operations. But, besides this, although a decree was published in March 1854, prohibiting the transit of arms from other countries, and a further decree in March 1855, prohibiting also the transit of other contraband of war, the transit trade from Belgium continued in full activity throughout the war. The Prussian government, when this state of things was brought to its notice, affirmed, not that it was justified in permitting these exports on the principle of ‘benevolent neutrality,’ but that it could not interfere with the course of trade; an answer which would seem to have been based rather on the principle that the first duty of Prussia, as [Page 174] a neutral, was to consider the interests of her own subjects, not those of the subjects of a country which had engaged itself in a war with which Prussia had no concern.
“Such was the attitude of Prussia at that time, and such her justification of that attitude. In what point does the analogy fail? Prussia was neutral then as Great Britain is now. Your excellency alludes to the magnitude of the respective wars. A war in which the energies of five European powers were taxed to the utmost can, perhaps, hardly be justly described as a war waged in remote regions for remote interests; but this point seems scarcely worthy of contention. Your excellency can hardly mean to say that principles of this importance are to be decided on questions of degree. If no weightier objection than, this can be adduced, the analogy would appear to be complete.
“I now come to the dilemma in which your excellency would place her Majesty’s government. You observe that Great Britain remonstrated strongly against the state of things above described, and you add that either those remonstrances were founded, or they were not. If founded, how, you ask, can the present complaints of Germany be held to be unfounded?
“Her Majesty’s government do not complain of the Prussian government making an effort to alter a state of things which they conceive to be at this moment disadvantageous to them; but her Majesty’s government are of opinion that the answers which the Prussian government made during the Crimean war more than justify the reply which, to my great regret, I hade been obliged on several occasions to make, and now again to repeat, to your excellency. The nature of those answers will be seen on referring to the correspondence which passed at the time between the two governments, which shows also the nature of the remonstrances addressed to Prussia by Great Britain. On ascertaining that the Prussian government did not mean to restrict the export of arms or contraband of war of native origin, but intended to prohibit the transit of such articles, her Majesty’s government consulted the legal advisers of the Crown as to the extent to which they would be justified in making representations founded on their rights as belligerents. The answer was clear—that her Majesty’s government would be entitled to remonstrate only in the event of violation of Prussian law; and it will be found on reference to the correspondence that, though the large direct exportations from the states of the Zollverein certainly formed occasionally the subject of representations and discussions, the strong remonstrances to which your excellency alludes were, with few exceptions, made on the subject of the continuous violation of the injunctions of the decrees forbidding the transit of arms, which violation was so systematic that in only one case, of the stoppage at Aix-la-Chapelle of some revolvers concealed in bales of cotton, were the customs authorities successful in interposing a check on it. It is true that remonstrances were made on the receipt of a report, to which a full and complete contradiction was given, that rifles belonging to the Prussian government had been sold to Russia, and of a report that wagons loaded with gunpowder had been escorted to the frontier by Prussian police; but the distinction is obvious between these cases and cases affecting private individuals.
“I would, therefore, venture to remark that your excellency’s dilemma is more apparent than real. The course of Great Britain then and now is perfectly consistent. As she then remonstrated against infractions of Prussian law, so she now admits the justice of remonstrances against infractions of British law, such as store-ships, enlistments, and others; and any cases of such infraction which your excellency may bring under my notice shall receive the most prompt attention.
“Your excellency now requires alterations of practice and the creation or restrictions on trade in a sense favorable to Prussian interests. In face of these demands I would put to your excellency this question: When did Prussia renounce the principles on which she acted in 1854 and 1855, to which she adhered, as far as I am aware, when she again occupied the position of a neutral in the war waged by Austria with France and Italy in 1859, and in the war between the Northern and Southern States of America, and to which she has formally given her sanction in the treaties with the United States of 1799 and 1828?
“So far I have confined my reply to the examination of what may appear to me to be the novel elements in your excellency’s arguments; but it now beeomes my duty to address myself to the consideration of the statement made that the policy of her Majesty’s government has been practically benevolent to France, and that the British nation, which has not prevented the export to France of contraband of war and supplies useful for warlike purposes, will be held morally responsible for the blood which is being shed.
“I am glad to observe that your excellency acquits her Majesty’s government of adopting intentionally such a policy as you describe, and I have consequently only to deal with the practical point of view which brings me to consider the following question: Did Great Britain, when she found herself in the position of a neutral in face of a sudden and unexpected war, adopt an unusual policy and one unwarranted by precedent? Was her attitude in any way exceptional? There can be but one answer to this question. She adopted the course for which she had the clearest and most unbroken [Page 175] precedent and authority, foreign as well as British; and which Prussia herself, as I have shown above, has invariably adopted in similar cases.
‘‘I am ready to admit to the fullest extent the difficulty of defining the rights of belligerents and the duties of neutrals, and I fully recognize that the present feeling of the German nation is, under the circumstances, not unnatural. I could not deny it, considering the feelings which we ourselves entertained in times of great excitement; but I do not for a moment doubt that Germany will, at a calmer season, readily admit that, even if it had been desirable, this country could not have been expected, without general consent, to have altered the hitherto received rules by which the duties of neutrals have been defined and regulated. Both belligerents entered on the war with a full knowledge of the rules of international law, and of what has been the almost uniform practice of neutrals; and each belligerent had consequently a right to expect that the existing rules and former practice would be maintained, and might with reason have complained if any change had been made.
“It must be remembered that obligations upon neutrals have become more strict with the progress of civilization; but the present question is one which was not raised or discussed at the congress of Paris of 1856; and the royal commission, composed of some of the most eminent jurisconsults in this country, who inquired into the neutrality laws in 1867, decided that to prohibit the export of munitions of war was impracticable and impolitic.
“Your excellency, turning from generality to details, has made certain specific demands as to the course which Great Britain should pursue. I think it right, therefore, to lay before you some considerations with reference to these demands which may convince you of the difficulty, if not impracticability, of acceding to them.
“You demand that the export to France of arms, ammunition, coal, and other contraband of war should be prevented; and you observe that her Majesty’s government have declared that the law empowered the executive to take this step.
“There is no doubt that the executive has, under the customs consolidation act of 1853, the legal powder to prohibit the export of contraband of war; but the highest authority can be adduced to show that such exportation is not forbidden by our municipal law, and it has not been the practice to prohibit it except when the interests of this country, as in the case of self-defense, are directly and immediately concerned in the prohibition: and even in some of these cases, such as the Crimean war, considerable doubts arose during its continuance whether the prohibition, when actually attempted to be enforced, was as disadvantageous to the enemy as it was inconvenient to ourselves.
“Such, then, being the state of the case as regards existing practice, I would venture to ask your excellency’s serious attention to the following specimens of the difficulties which would, at the outset, have to be met in an attempt to alter existing practice.
“The export of arms and contraband of war may be open or clandestine. Her Majesty’s government, though they regret it, do not for a moment deny that there is at present a certain exportation of arms to France; but this exportation is open and undisguised. Since the dispatch of my note of the 9th instant, fuller customs returns have been received, from which it appears that in the week immediately following the declaration of war 11,000 rifles were shipped to France. None are known to have been shipped since, with the exception of the 4,512 taken by the Fannie from Southampton on the 6th instant; but it is possible that further purchases have been made by French agents, though, from the reports received as to the number in the market and the state of the gun trade, it is certain that the purchases must have been very limited. But, whatever the amount, there has been no secrecy in the export, and the returns of every rifle shipped are as well known to your excellency as to her Majesty’s government. Exportations, if prohibited, would be entirely clandestine; the nature of a cargo and the destination of a vessel would be equally concealed. It would be necessary to alter the present system of exportation under which (except in the port of London) cargoes, in order to insure rapidity of shipment, are not examined by the customs authorities, who receive the account of them from the shippers, generally after the ship has sailed. It would require the establishment of an expensive, intricate, and inquisitorial customs system under which all suspicious packages, no matter what their assumed destination, would be opened and examined. Finally, though it may certainly diminish the profits of certain merchants, with whose proceedings her Majesty’s government, in common with your excellency, have no sympathy, it would also cause infinite delay and obstruction to innocent trade.
“Your excellency would not interfere with the trade to neutral countries; but how would it be possible to avoid this? A ship carrying prohibited articles would invariably have a colorable neutral destination. How is this to be detected without interfering with the trade with neutrals, if even then? During the Crimean war Prussia had no such difficulty. There could be no doubt of the destination of goods arriving on the Russian frontier; and yet the customs authorities were practically powerless. But Great Britain has no frontier; a ship leaving her ports may shape her course where she pleases. Your excellency has suggested the exaction of a bond from [Page 176] shippers; but such a measure would be most onerous to the mercantile community, would be easily evaded, and at the best would be no security against ultimate destination. It would be necessary, too, to take these bonds, not only from foreign-bound ships, but from coasting vessels, which are at present subject to little or no customs supervision; for what could hinder a coasting vessel from crossing the channel and delivering her cargo at a French port?
“Again, your excellency includes coal among the articles to be prohibited, on the ground that coal is more useful to France than to Germany during the present war. This raises the question of the prohibition of all articles, not contraband of war, which might be of service to a belligerent. But if this principle were admitted, where is it to stop? In the American war no cargoes would have been more useful to the Southern States than cloth, leather, and quinine. It would be difficult for a neutral, and obviously inadmissible for a belligerent, to draw the line.
“It must be remembered, too, that the features of the war may change. Articles invaluable to a belligerent at one period may be valueless at another, and vice versa. Is the neutral to watch the shifting phases and vary his restrictions in accordance with them?
“Again, the eleventh article of the treaty of commerce between this country and France expressly provides that the contracting parties shall not prohibit the exportation of coal. Can this solemn treaty stipulation be lightly disregarded as long as we remain neutral?
“I have pointed out these difficulties to your excellency, as the consideration of them may tend to efface the impression that Great Britain has hastily and inconsiderately, or upon grounds of a narrow selfishness, refused to accede to your demands; and I need hardly assure you that at the outbreak of hostilities her Majesty’s government were actuated in the course adopted by them by no feeling of hostility toward a nation with which Great Britain has always been on terms of intimate friendship, and by no unworthy motive of retaliation for past conduct, but by the honest desire to maintain a strict and impartial neutrality, in accordance with precedent and in conformity with the law of nations.
“I trust that I have shown that our conduct has been of the nature indicated. I have shown that we have conformed to existing practice, and I have pointed out the difficulties standing in the way of the alteration of existing practice. I have alluded to the difficulties which the Prussian government encountered when placed in a position analogous to that now occupied by Great Britain, and I have shown that these difficulties were chiefly owing to their having so far departed from existing practice as to prohibit the transit trade—a concession which gave Great Britain a standing ground for complaint which she would not otherwise have possessed, and which, notwithstanding, was powerless in its results. I have also fully recognized that the sensitiveness of the Prussian people and the complaints of the government are natural.
“Her Majesty’s government fear that no means could be devised for securing at this moment a calm discussion of the subject. They by no means desire to claim exceptional rights for this country. They would be prepared to enter into consultation with other nations as to the possibility of adopting in common a stricter rule, although their expectations of a practical result in the sense indicated by the North German government are not sanguine.
“We took the course which appeared to be according to the dictates of practice and precedent, at a time when it was impossible to know how the fortune of war would turn. Since then, France, notwithstanding the display of her usual courage and gallantry, has met with nothing but reverses. Germany, has, on the other hand, given extraordinary proofs of her military ability and power, accompanied, as it has been, by continuous success. Your excellency, as the representative of a great and chivalrous nation, must agree with me that it would not be possible that we should now change the policy which we declared to our Parliament to be usual, just, and expedient, because it was stated by the victorious belligerent to be in some degree favorable to the defeated enemy.
“I am, &c.,