The truth is, that with the highest respect for Sir Roundell Palmer in
private life, I have never been able entirely to acquiesce in his
notions of his duty as an officer of the government in a deliberative
assembly.
I have the honor to transmit a copy of my note to Lord Clarendon. Since
it was sent I perceive I made an omission in not fortifying my own
report of my last conference with Lord Russell by the corroborating
evidence of his lordship himself, in his note to Lord Lyons of the 14th
February, 1863.
Mr. Adams to the Earl of Clarendon.
Legation of the United
States, London,
February 24, 1866.
My Lord: I have the honor to submit to your
lordship’s consideration an extract of what purports to be a speech
of her Majesty’s attorney general, Sir R. Palmer, in the House of
Commons last evening, which I find reported in the London Times of
this morning:
“The honorable member for Windsor (Mr. Labouchere) is slightly in
error when he says that the English
government was several times requested to amend the foreign
enlistment
[Page 72]
act; in fact, the
very reverse of that statement is nearer to the truth. It should be
remembered that at an early period of the American war, the
government of this country, foreseeing that very important questions
of international law might arise during the progress of the war,
suggested to the American government that the foreign enlistment
acts of both countries should be revised, and any additions that
might be thought necessary made to them. What was the answer made by
the American government to this offer of ours? What was the answer
of the American government to this offer? Why, to use a humble
expression, they threw cold water on it altogether. They said that
they had no objection to enter into the consideration of such a
question, but for their own part, they were of opinion that their
foreign enlistment act required no amendment and was perfectly
adapted for its purposes. I ask the house what position the
government would have been placed in if, after the receipt of such
an answer as that, they had asked Parliament to add more stringent
provisions to the foreign enlistment act. The first question asked
in the house would be whether we had received any intimation from
the American government of any intention to make corresponding
changes in their foreign enlistment act. Our answer to such a
question would have been that we had received a communication on the
subject from the United States government, who were of opinion that
there was no necessity for making any alteration in their foreign
enlistment act. After giving such an answer how could the government
expect to have their bill adopted by the house? [Hear.]”
Disclaiming, as a representative of a foreign country, the smallest
right to raise questions in regard to any words that may be uttered
in the great deliberative assemblies of this kingdom by members in
no way sharing a responsibility for the proceedings of her Majesty’s
government towards foreign nations, I cannot at the same time
decline to observe that the confidential relation of the
distinguished person who holds the position of chief legal adviser
to the Crown, invests any statement which he thinks proper to make
in regard to the action of a foreign country with an authority
before the world closely akin to that of her Majesty’s ministers
themselves. It seems, therefore, difficult for me to avoid bringing
to your lordship’s attention those particulars in the extract above
submitted which appear to me not only to be at variance with the
actual facts in the transaction therein referred to, but doing more
or less of injustice to the position occupied by my government as a
party to it.
I understand it to be substantially affirmed in the passage
cited—
1st. That the British government spontaneously, of its own volition,
initiated early in the war a proposition to the government which I
represent to revise the foreign enlistment acts of both countries,
and make such additions as might be thought necessary to them.
2d. That the answer of the United States to this offer was like
throwing cold water on it altogether. They said they had no
objection to enter into the consideration of such a question, but
they were satisfied with their own law as it stood. Hence it is
clearly implied in the sequel, though not affirmed in words, that
as a consequence of this answer, the
British government were reluctantly compelled to desist from
appealing to Parliament at all.
It is with unaffected regret that I feel absolutely constrained to
point out to your lordship the grave errors of fact contained in
both these propositions. Inasmuch as the several papers from which I
proceed to quote as my authorities have been given to the world in
print, long since accessible to all men, it is only necessary for me
to refer to them in brief, in order to substantiate my
statement.
On the 25th of October, 1862, I received from Mr. Seward, the
Secretary of State, a brief letter enclosing papers connected with
the ravages committed by the Alabama. It closed with these
words:
“The President directs that you lay copies of the substance of these
papers before Earl Russell in such manner as shall seem best
calculated to effect two important objects: first, due redress for
the national and private injuries sustained; secondly, a prevention
of such lawless and injurious proceedings hereafter.”
On the 27th of the same month, that is, two days later, he repeated
the instructions, using the same terms “redress” and
“prevention.”
On the 20th of November I addressed a note to the Right Hon. Earl
Russell, at the close of which are these words:
“I have the honor to inform your lordship of the directions which I
have received from my government to solicit redress for the national
and private injuries already thus sustained,; as well as a more
effective prevention of any such repetition of such lawless and
injurious proceedings in her Majesty’s ports hereafter.”
It was in answer to this demand that the proposition of Earl Russell,
to which the Attorney General refers in his remarks, was made. In
his reply to my note, dated the 19th December, 1862, after declining
the first proposition of Mr. Seward for redress for the past, his
lordship goes on to speak of the second, which related to prevention
for the future. This is the language used:
“As regards your demand for a more effective prevention for the
future of the fitting out of such vessels in British ports, I have
the honor to inform you that her Majesty’s government, after
consultation with the law officers of the Crown, are of opinion that
certain amendments might be introduced into the foreign enlistment
act, which, if sanctioned by Parliament, would have the effect of
giving greater power to the executive to prevent the construction in
British ports of ships destined for the use of belligerents. But her
Majesty’s government consider that before submitting any proposals
of that sort to Parliament, it would be
[Page 73]
desirable that they should previously
communicate with the government of the United States, and ascertain
whether that government is willing to make similar alterations in
its own foreign enlistment act, and that the amendments, like the
original statute, should, as it were, proceed pari
passu in both countries.”
Such was the origin of the proposal alluded to by the distinguished
Attorney General. It must, therefore, be plain to your lordship that
it was not made early in the war, but only
after the ravages committed by the Alabama had roused the attention
of my government to the subject. Neither was it initiated
spontaneously, but was wholly the offspring of a demand made by my
government for more effective measures of prevention of such ravages
committed by vessels fitted out from British ports.
I now proceed to show to your lordship, in like manner, the fallacy
in the other proposition of the Attorney General.
On the 25th of December, 1862, I wrote to Mr. Seward, transmitting
for consideration the proposal made by Earl Russell.
On the 19th of January, 1863, Mr. Seward addressed to me a reply, in
which he refers to his lordship’s proposal in these words:
“It is not presumed that our anti-enlistment act is defective, or
that Great Britain has ground to complain that it has not been
effectually executed. Nevertheless, the proposition of her Majesty’s
government, that the two governments shall confer together upon
amendments to the corresponding acts in the two countries, evinces a
conciliating, a liberal, and just spirit, if not a desire to prevent
further causes of complaint. You are, therefore, authorized to
confer with Earl Russell, and to transmit, for the consideration of
the President, such amendments as Earl Russell may in such a
conference suggest, and you may think proper to be approved.”
I shall abstain from entering into any discussion of whether this
language is or is not fairly to be considered as “throwing cold
water on it altogether.” That is a matter of opinion. At present I
shall strive to confine myself strictly to the consideration of
facts. The point now is to ascertain, if possible, precisely what
effect the communication of it did actually have on the action of
her Majesty’s government.
On the 7th of February I was favored with an interview by Earl
Russell, upon which occasion I communicated to him the substance of
the answer. The official report of this interview, which I made to
Mr. Seward on the 13th of February, is in the following words:
“In obedience to your instructions, contained in des patch No. 454, I
called the attention of Lord Russell, in my conference of Saturday,
to the reply made by him to my note of the 20th of November last,
claiming reparation for the damage done by No. 290, and security
against any repetition of the same in future. I observed that my
government had not yet authorized me to say anything in regard to
the answer on the first point; but with respect to the second, his
lordship’s suggestion of possible amendments to the enlistment laws,
in order to make them more effective, had been favorably received;
although the law of the United States was considered as of very
sufficient vigor, the government were not unwilling to consider
propositions to improve upon it.
“To that end I had been directed to ask whether any such had yet been
matured by her Majesty’s ministers; if so, I should be happy to
receive and to transmit them to Washington. His lordship, repeating
my remark—that my government considered its present enlistment act
as sufficiently effective—then added that, since his note was
written, the subject had been considered in the cabinet, and the
lord chancellor had expressed the same opinion of the British law.
Under these circumstances he did not see that he could have any
change to propose.”
Thus it appears that the essential fact is developed, that his
lordship’s answer, declining to proceed any further, was made
forthwith, and was the result of cabinet deliberations, previously
held, and of the opinion of the lord chancellor thereupon given. It
was in no way the effect of the communication made by myself at the
moment, but had been prepared in advance to meet it whenever it
came, or whatever it might be. It fell in with an opinion expressed
by Mr. Seward, but was in no manner dependent upon it.
If this be the correct chronology, it follows that no such
hypothetical difficulty in an appeal to Parliament, after such an
answer as is described by her Majesty’s attorney general, could ever
have been possible. Her Majesty’s government had decided, before the
answer ever appeared, not to make any such appeal, but rather to
abide by the lord chancellor’s confidence in the existing
statute.
In addressing this note to your lordship, I pray you to understand
that I disclaim all intention to impute an evil motive to the
distinguished and excellent gentleman against whose language I have
been constrained to enter this protest. In the present state of the
relations between the two countries, which I cannot disguise to be
delicate, I am sensible of the great importance of every word that
falls from the lips of persons in authority on either side. Hence,
it has been under a painful sense of duty that I have marked, to
your lordship these errors, doubtless of inadvertence, committed by
so eminent an officer of the Crown, which may, nevertheless, excite
much comment among my countrymen, and aggravate the resentment for
injustice suffered, already, unfortunately, much too prevalent with
them.
I pray your lordship to accept, &c., &c., &c.
Right Honorable the Earl of Clarendon,
&c., &c., &c.
