Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 5, 1870
No. 127.
Mr. Motley to Mr. Fish.
Sir: Referring to my No. 482, I have the honor to send herewith the reply of Count Bernstorff to the letter of Lord Granville, extracted from the Times of the 10th instant.
British neutrality.
The following is a translation of a dispatch addressed by the North German ambassador to Lord Granville, in continuation of the correspondence published in the Times of September 19:
“Prussia House, October 8, 1870.
“My Lord: I have the honor to acknowledge the receipt of your excellency’s note of the 15th ultimo, in reply to my memorandum of the 30th of August concerning British neutrality. I have left it unanswered for a time, because for the moment hopes of peace appeared to offer, and as I should have much preferred to discontinue the controversy altogether. These hopes having, however, I sincerely regret, disappeared for the present, I cannot but reply to your excellency’s note.
“Before entering upon its contents, I ask your excellency’s permission to say a few words regarding the form and origin of this correspondence.
“The memorandum of the 30th of August, which I had the honor to transmit to your excellency with a private letter of the 31st of the same month, was originally not intended for publicity, as may easily be perceived by some of its passages. I afterward, indeed, acceded to your excellency’s wish to deal with it officially, and will therefore not complain of your excellency’s having immediately caused your reply to be published by the press simultaneously with my memorandum before I had been allowed time to remove certain evident misconceptions, and hence before the correspondence could be regarded as closed.
“The circumstances under which the memorandum was written were as follows:
“My verbal and written remonstrances on account of the direct supply of the French fleet with coals, and on account of the export of arms and ammunition to France, had remained without any practical result.
“Your excellency had, it is true, promised that as soon as I could adduce proofs of a certain vessel being hired by or for the French government, in order to be used as a storeship in its service, the case should receive consideration. Notwithstanding this promise, your excellency declined acceding to my request of the 19th of August to proceed against the vessels Hypathia and Norseman, merely on the ground that these vessels had sailed before the foreign enlistment act had come into operation. The two other points, however, proved by undeniable evidence, namely, that both vesssls had sailed under the British flag after conclusion of the sale, and that, even up to the 8th ultimo, the transfer of the property to the French owners had not been entered on the ships’ books, while the sale had taken place about the middle of the month of July, have been passed over in silence by your excellency, although the two-fold violation of the international law and of the English law had been clearly established.
[Page 178]“The notes in which I had submitted to your excellency several cases which had become known of contemplated or already accomplished open and clandestine consignments of arms and ammunition to France, in order to afford an opportunity to her Britannic Majesty’s government of preventing them or obviating the further extension of the mischief, met with the same fate. Your excellency had assured me, in the replies to my communications on the subject, that they should be taken into immediate consideration, or that inquiries should be made at once. But none of your excellency’s notes contained a positive statement to the effect that her Britannic Majesty’s government regarded the traffic in contraband of war compatible with their neutrality and that they could not interfere. On the contrary, it has been repeatedly left to me to search after particular cases with the means at my disposal, in order to bring them under the notice of her Majesty’s government.
“I should have been glad, indeed, if your excellency had, by a categorical official declaration, placed me in a position to release the consular agents of the North German Confederation in the United Kingdom from the laborious and unpleasant task of controlling this illegitimate traffic.
“Your excellency will especially please to recollectthat subsequent to the indiscretion of Count Palikao, which created a great sensation, not only in Germany, but also in this country, your excellency, far from declaring the dispatch of 40,000 breech-loaders for the French army to be compatible with strict neutrality, stated that it would be impossible to interfere unless I adduced positive proofs that those consignments had really been made. At least your excellency’s notes of the 25th and 26th of August, in reply to my note of the 25th, justified such conclusion on my part. For, in the first note, your excellency expressed the apprehension that my communications not containing more precise statements of the name of the ship having on board part of the arms in question, and of the particular place in the river where the vessel was lying, the inquiry would be difficult. And, in the second note, your excellency informed me that the investigations had remained without result.
“After waiting in vain for the promulgation of an ‘order in council,’ or for any official announcement on the part of her Britannic Majesty’s government, or for instructions to the police, customs, and harbor authorities of the United Kingdom, but having meanwhile ascertained, by means of reliable communications, that the consignments announced by Count Palikao were being actively carried on, I embodied my views of the political bearing of the question in the memorandum, in order to show distinctly to the British cabinet, in a most unofficial form, the impression necessarily created in Germany by the toleration of the export of arms to France. I have since then been almost daily in a position to draw your excellency’s attention to various instances of consignments of arms. In reply to my notes on the subject, I for a long time either received no answers at all, or only such as were dilatory, although the cases acknowledged in your excellency’s subsequent notes of the 13th and 19th ultimo prove that her Britannic Majesty’s government would have had time to prevent the dispatch of many a thousand of rifles to France.
“It is true, your excellency, on the 5th ultimo, in reply to my note of the 2d ultimo, informed me that some of the packages in a certain truck on a railway, pointed out by me, contained bacon. But besides the possibility of other packages, which had not been opened, having contained arms, and of my having been misinformed only in regard to the particular number of the railway truck, I could, e contrario, draw the conclusion from your excellency’s communication that her Britannic Majesty’s government would have complied with my request if those packages had contained arms instead of bacon. However, after I had succeeded by my notes of the 1st, 2d, 3d, 6th, 7th, 8th, and 9th ultimo, in bringing a series of irrefutable facts before her Britannic Majesty’s government, a sudden change occurred. In your note of the 13th ultimo, while acknowledging the correctness of a large number of cases pointed out by me, your excellency declared that the traffic, which had been quite openly carried on, was legitimate, and that the customs authorities had no power to stop it. Had her Majesty’s government from the commencement of this discussion taken this standing ground, they would certainly not have induced me to institute the above inquiries, and far less would they have had reason to subject the correctness of my informations to a practical test.
“I therefore consider myself justified in concluding that her Britannic Majesty’s government, since the receipt of my memorandum, has materially changed the position previously occupied in regard of our complaints. It was unavoidable that this change should be reflected in the answer to my memorandum, penned under different conditions. For I had started with the supposition that the legal means at the disposal of the executive had hitherto not been applied simply from motives of convenience. I had been under the impression that it would only be necessary to prove the serious extent of the supply of France with arms and ammunition on the part of England in order to convince the British government that the time had arrived to make use of their powers. I had, therefore, not entered upon a judicial examination of the question of English neutrality, not because I had reason to shun its discussion, but merely [Page 179] because I had hoped that by abstaining from it I should be bringing about a more rapid practical decision, and therefore considered it sufficient to restrict myself to the practical and political aspect of the question.
“I now have the honor to refer to your excellency’s note of the 15th ultimo, and must begin by contradicting the supposition that I had expressed a desire on the part of my government that the attitude of Great Britain toward Germany in this war should be that of a ‘benevolent neutrality.’ On the contrary, as a repeated and careful examination of my arguments in their mutual connection, will convince your excellency, I have, on the one hand merely given expression to my satisfaction that public opinion had ranged itself on our side in this war, wantonly thrust upon us, and had, on the other hand, combined with it the reflection how difficult it is to reconcile the faith in the practical value of public opinion with the neutrality policy actually pursued by her Britannic Majesty’s government.
“I have by no means asked, and far less claimed, on our part, that England should transgress the bounds of a strict neutrality in our favor and to the detriment of France. But I have asserted, and, in the face of the experiences of the last few weeks, as well as in consequence of your excellency’s note of the 15th ultimo, must maintain my assertion that the neutrality of England, while, as I am most willing to admit, intended to be impartial, in its practical effects assumes the form of a neutrality which is benevolent and partial toward France. For my part, I have only wished a return from a lax neutrality, whereby one party is benefited, to a strict and really impartial neutrality; for I am unable to admit that it is compatible with strict neutrality that French agents should be permitted to buy up in this country, under the eyes and with the cognizance of her Britannic Majesty’s government, many thousands of breechloaders, revolvers, and pistols, with the requisite ammunition, in order to arm therewith the French people, and make the formation of fresh army corps possible after the regular armies of France have been defeated and surrounded.
“Your excellency admits that the export of arms and ammunition to France has latterly assumed larger proportions than had hitherto appeared credible. I have the honor to remark that, according to my information, which may be partly tested upon oath, if this should appear desirable, the number of fire-arms shipped from England to France since my memorandum of the 30th ultimo, is treble and four-fold the number of 40,000, announced by Count Palikao, and that a number of manufactories, especially in Birmingham and London, are working day and night for French agents and their men of straw. I am in possession of authenticated copies of contracts, concluded between the French government and English contractors. The events of the war have quite recently delivered into our hands an official letter of the present French minister of war, dated the 18th ultimo, to a French officer at the French embassy in London, and in which the then expected dispatch of 25,000 Snider rifles is mentioned, and reference is made for the payment to the funds at the disposal of the French chargé d’affaires for the purchase of arms in general. In like manner authentic proofs lie before me that the export of fire-arms and ammunition to France has been thoroughly organized in some British ports.
“Since, however, as already alluded to, her Britannic Majesty’s government, relinquishing its former standing ground, does not doubt the actual legitimacy of these consignments of arms, but disputes the validity of our complaints concerning the toleration of these facts from a judicial and political point of view, I shall now proceed to an enumeration of the arguments contained in your excellency’s note of the 15th ultimo.
“According to your excellency’s own admission, the executive has the power to prohibit the export of contraband of war. But you state the practice is to make use of this right only in the interest of England, as in the case of self-defense. A letter of the Duke of Wellington to Mr. Canning, dated the 30th of August, 1825, and reprinted in a London newspaper immediately after the indiscretion of Count Palikao, refutes this assumption, proving that England as a neutral has repeatedly prohibited the export of arms by an order in council, ‘according to the usual practice,’ as the renowned duke says. In one part of this letter the words occur, ‘I am afraid, then, that the world will not entirely acquit us of at least not doing our utmost to prevent this breach of neutrality of which the Porte will accuse us.’
“Practice, consequently, is in itself not opposed to the adoption of a measure desired by us for the prohibition of the sale of arms to our enemy. But the law allows government a certain latitude of consideration to make use of their power according to circumstances. Your excellency is, however, of opinion that the present customs system would require a radical reform in order to prevent the export of contraband of war. I gladly concede that the lax method of dispatch and control on the part of the custom-house authorities, which has become usual in the interest of an unfettered commercial intercourse, bars the energetic carrying out of a measure prohibiting the exportation of contraband of war. But, on the other hand, I think the very fact of such laxity tends to show that, for the purpose of rendering an order in council effectual, no new organization would be required, but simply more stringent instructions [Page 180] for the customs and harbor authorities, reminding them of the existing regulations. The correctness of this opinion is founded upon the numerous official reports and other partly sworn evidence lying before me. They clearly prove that many thousands of boxes, containing rifles, well known to be such by the custom-house authorities, have been shipped for France without challenge. I know several instances where the cases have not even been registered in the books, but have been openly shipped as passengers’ luggage by the French agents. When our consular agents protested against such proceedings, the custom-house officers invariably replied that they had no instructions to detain the packages.
“I hope, however, to be able to prove by the following passages in English statutes that her Britannic Majesty’s government have at their disposal, in case they should wish to avail themselves of them, the means to put a stop to this traffic without the necessity of introducing a new machinery of officials for the purpose.
“By the 150th section of chapter 107 of the customs consolidation act 1853, (16 and 17 Victoria,) it is enacted that—
“‘The following goods may, by proclamation or order in council, be prohibited either to be exported or carried coastwise: Arms, ammunition, and gunpowder, &c.; and if any goods so prohibited shall be exported from the United Kingdom, or carried coastwise or by water borne to be so exported, they shall be forfeited.’
“Section 125 of the same act enacts—
“‘That the exporter of British manufactures, or his agents, has to declare, in a shipping bill, the marks, numbers, description of packages, and the quantity, quality, and description of goods about to be shipped for exportation.’
“Section 5 of the 122d chapter of the 17 and 18 Victoria (1854) enacts—
“‘That on the entry at the customs of arms and ammunition of war, “whether for home use, exportation, or in transit, the number of articles of each description, as denominated in Table A, (swords, bayonets, muskets, rifles, carbines, cannons, mortars, &c.,) shall be stated in the import, export, or transit entry.’
“The passage, therefore, in your excellency’s note that ‘such exportation is not forbidden by our municipal law,’ can but have the meaning that a positive declaration is still required on the part of her Britannic Majesty’s government before the power with which it is invested comes into operation.
“The second passage of the quoted enactment proves that the means for an efficient control have likewise been provided by the law itself. It is true the intention must exist to apply the remedy. That, however, the action of her Majesty’s government does not always remain the same under all circumstances I may be permitted to prove by two instructions issued to the customs authorities of the United Kingdom on the 2d of June, 1848, and the 8th of September, 1870, respectively.
“The first originated at the time of the Danish-German complications, when Sir Charles Trevelyan, one of the secretaries to the lords commissioners of her Majesty’s treasury, informed the commissioners of customs, in a treasury minute, that ‘in transmitting to them copies of a letter received by their lordships from the foreign office, and of its inclosures from the Danish minister to this court, he has been commanded by their lordships to desire that if the commissioner shall be satisfied that any arms or war like stores are embarked to be sent from this country for the purpose of being employed in hostilities against the Danish government, they will give instructions to their officers to prevent their exportation.’ In pursuance of this order of the lords of the treasury, the commissioners of the customs issued directions to their officers at the several departments in the port of London, and to all the collectors and controllers of all the ports throughout the kingdom, to take care that the same be duly obeyed, with instructions to make a special ‘report to the board of any circumstances that may arise fit for their cognizance.’
“On the other hand, the present instructions, notwithstanding my continued complaints since the middle of July in this year, are as follows:
“‘The Examining Officers’ Custom-house, “‘London, September 8, 1870.
“‘In pursuance of instructions from the lords commissioners of her Majesty’s treasury, the board directs you, when it is supposed that arms and ammunition are being exported, to ascertain the facts; and, if so, what is the nature of the arms and ammu, nitions, and in what quantities, by whom and to what destination they are to be shipped; but you are not in any case to delay the shipmentlonger than is sufficient to obtain the above particulars. A report to be made to the board in each case.
“‘I am, sir, your obedient servant,
“‘J. B. HALE.
“‘The Collector at——.’
“This contrast in the treatment of analogous cases is self-evident and calls for no comment on my part. At the time I wrote my memorandum and the above-mentioned numerous notes to your excellency, I was naturally not acquainted with the instructions [Page 181] of the 8th ultimo. I think, however, that I am entitled to contend that they prove conclusively how easy it would have been for her Britannic Majesty’s government to render the control which has been ordered for their own information effective also with regard to my complaints, without damaging the usual and legitimate trade of the country.
“I had, on a former occasion, taken the liberty to propose to your excellency still another remedy, which appeared to me appropriate for guarding the bona fide commerce with other neutral countries against unnecessary annoyance without in its interest setting aside all and every control.
“This measure would consist in demanding securities that articles cleared for a neutral port should really be delivered there. Your excellency considers this proposal impracticable. I beg permission, however, to quote a passage from a French law of the 14th of July, 1860—‘Law concerning the manufacture and sale of arms for war purposes,’ which has been reprinted in the appendix to the Report of the Neutrality Laws Commissioners of 1867—
“It says, at page 48 of the report, under the head of Title 2, No. 9:
“‘The export of arms or pieces of arms for warfare is free, under the conditions laid down by the law, or by the regulations of the administrative authorities.
“‘An imperial decree may, however, forbid this exportation beyond the frontiers for a fixed destination and limited period.
“‘The custom-house officers through which the export may be made are named by decrees for the purpose.
“‘When the export is prohibited for certain points of destination the exporters must, under the penalties imposed by article 4 of section 3 of the law of August 22, 1791, certify the arrival of the arms at a legitimate point of destination by means of bonds, which on departure are delivered to them by the customs authorities, and canceled on arrival at the port of destination by the consular agents of France.’
“My proposal, therefore, if it has not the merit of originality, enjoys at least the advantage of being recognized as practicable by the French legislature. France could consequently least of all have been in the position to see any kind of unfriendliness in the application of the remedy.
“Notwithstanding a careful study of the quoted ‘Report of the Neutrality Laws Commissioners,’ I have not been able to find the proof in it that this commission had come to the decision that a prohibition of the export of arms and ammunition was, indeed, impracticable or impolitic. Besides, the authority of the commission would scarcely have extended far enough to prejudice (by such a decision) all future contingencies and the rights of other nations. I believe, however, I have proved that a prohibition of export is legally admissible, and practicable as well as possible, in the usual course of administration. Whether it is politic or not, that is the very question on which a difference of opinion exists between us up to the present time.
“The second objection of your excellency to the legitimacy of our complaints is the alleged wrong on the part of Prussia during the Crimean war. I do not wish to recur to the greater or less degree of analogy between both the cases in question, as a continuation of this controversy especially before the public might create feelings in one or other of the two nations which I am most anxious to avoid.
“However that may be, and even if the most complete analogy existed and had been acknowledged by me, I still could not refrain from upholding the alternative that if the complaints of England against Prussia at the time of the Crimean war were warranted, those of Germany against England at the present time are at least equally well founded.
“As regards your excellency’s arguments by which the dilemma is to be obviated, I wish to make a single reply. Your excellency remarks:
“‘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.’
“In another place your excellency says:
“‘I have alluded to the difficulties which the Prussian government encountered when placed in a position analogous to that occupied by Great Britain, and I have shown that those 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 complaints which she would not otherwise have possessed, and which, notwithstanding, was powerless in its results.’
“It is evident that the justice of former complaints against us is deduced from a concession made by Prussia to England and her allies in excess of its strict obligations as a neutral, while our present grievances are stated to be unfounded because England has not made concessions of any kind in excess of its bare duties of neutrality, and merely concedes to us a right of complaint in so far as the violation of English law is concerned.
“If I should at all draw a conclusion from this line of argument, it could only be [Page 182] that Prussia did at that time more in principle for the observation of the neutrality than England does at present, and therefore evinced at that time a more friendly neutrality toward England than the latter now observes toward us, and that, therefore, the complaints of England were then less warranted than ours now are.
“As regards the practical observation of the existing laws and regulations, I shall not revert to the numerous complaints of England on account of alleged transport of arms through Prussia, of which I have still a perfect recollection, and which at the time were proved unfounded.
“On the other hand, I must draw attention to the infractions of British law, as shown above, even in its present state, in order to prove that our complaints certainly have, in this respect also, a foundation based on facts.
“In addition, I cannot refrain from opposing the principle involved in your excellency’s argument, For I am of opinion that the right of the belligerent powers to complain about the attitude of a neutral state does not so much originate in its accidental municipal law as in the international law with which it is the duty of every government to bring its own laws into harmony.
“This is the very standing ground of Germany. According to the existing principles of international law, arms and ammunition rank first among the articles which are regarded as contraband of war, and the sale of which to the belligerent powers contributes most toward feeding and protracting the war.
“The reference to the Crimean war could, therefore, only be considered an argument for the position of her Britannic Majesty’s government if they should insist upon the analogy denied by me, and deduce therefrom the right to return our alleged former wrong by a positive wrong at the present moment.
“I have in my memorandum already too strongly declared the possibility of such a supposition to be at variance with the liberal and conciliatory ideas of the English people and statesmen to make any particular allusion necessary to the injurious effects which the reintroduction of the principle of retaliation would necessarily have upon the progress and the peace of Europe. I may the more readily refrain from doing so, as your excellency has, on your own part, emphatically repudiated such an idea.
“In the same manner I may abstain from entering at present upon the question whether it would be more in the interest of all to extend or restrict the duties of neutrals in the future.
“That Germany inclines to every progress in the field of increasing active freedom it has already proved in the course of three wars by applying, reciprocally, in the Danish and the Austrian wars, and, without regard to reciprocity, in the present war, the principle aimed at by the majority of the whole commercial world, namely, the security of private property at sea, a principle the adoption of which proved to be unattainable at the congress of Paris in 1856. Germany has therefore the more reason to expect from the other powers that they should not selfishly alter the existing international rights to its detriment and their own advantage.
“The present controversy simply centers in the question whether the refusal of her Majesty’s government to prohibit the export of arms is not at variance with the still unaltered general rules of international law regarding the duties of neutrals toward belligerents, and with the laws of this country not yet repealed by the legislature for the better fulfillment of these duties. That such is the case I believe I have proved by the existing facts and the laws themselves.
“I will now try and remove the final obstacle, which, according to the concluding paragraph of your excellency’s note, dated the 15th ultimo, has prevented her Britannic Majesty’s government from issuing an order prohibiting the export of arms.
“Your excellency remarks that France has suffered only defeats, while Germany, on the other hand, exhibits uninterrupted successes, and you connect therewith the reflection that it would be contrary to the feelings of her Britannic Majesty’s government now to change a line of policy entered upon at a time when they could not know which side would be favored by the fortune of war.
“In the first instance I should wish to raise the objection hereto that the government of her Britannic Majesty brought the new foreign enlistment act before Parliament after the outbreak of the war, and that when advocating the bill they emphatically declared that the laws hitherto in force would not be altered thereby, but merely supplemented.
“If, however, it cannot be doubtful, on the one hand, that in existing circumstances the new law is only beneficial to France, rendering it impossible for Germany to get ships, which she needed most urgently, while on the other hand the executive now refuses to apply the old laws for the prevention of export of arms and ammunition to France, and hereby the United Kingdom becomes a great arsenal for our enemy, the new law assumes in consequence of this a character, as regards Germany, which, if not hostile, is practically malevolent. But this, as I have the satisfaction to know, and as is proved by the parliamentary debates, was not the intention of the legislature.
“I further have the honor to remark that our complaints of the manner in which the English neutrality laws are being administered date from a time when we had not yet [Page 183] gained any victories, and that they were in no wise first raised by my memorandum of the 30th of August. Moreover, at the time the memorandum was penned France still possessed two powerful armies, while her fleets commanded the Baltic and North Sea, so that it could not possibly be a matter of indifference to us whether England, by the exercise of her neutrality, materially increased the advantages which France derived from our want of control of the sea.
“But even under the present circumstances the German people would not easily be persuaded that it was wanting in chivalry because it complains that by an unrestricted export of arms the enemy, who had been overcome only by its own great sacrifices, is furnished with the means of prolonging a struggle which, even if its final result should not thereby be materially affected, still in any case must lead to more bloodshed and more sacrifices for both belligerents. Even the most eloquent defender of the position taken by her Britannic Majesty’s government will not succeed, in the eyes of Germany, in bringing such a neutrality policy into harmony with the considerations of humanity and the wishes for peace so frequently advocated by England.
“As for the hope expressed by your excellency that the German people will, in a cooler moment, judge less severely the attitude of the government of Great Britain in this question than now in the heat of action, I regret that, in consequence of your excellency’s note of the 15th ultimo, added to the knowledge that our enemy is being daily equipped with British arms, I cannot share it.
“Should this state of things continue, I could only look forward to the soothing influence which the numerous and actual proofs of sympathy given by the English people, and the manifold testimonies of public opinion in favor of Germany and its good right, may have upon the feelings of the German nation.
“I have the honor, &c.,