Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part I

No. 52.
Mr. Partridge to Mr. Fish.

United States Legation,
Rio de Janeiro, November 24, 1871. (Received December 20.)

No. 20.]

Sir: During the late Franco-German war, several notable incidents occurred in this port, which demonstrated the disposition, and inability sometimes, of Brazil to maintain her neutrality, and showed at the same time the indisposition of the French to respect it, as well as the claims put forth by the North German Union. The bringing into this port on the 14th September, 1870, by the French gun-boat Hamelin, of two North German merchantmen, (Lucie and Concordia,) their delay in this port, after warning to leave within twenty-four hours, their stay here having been prolonged for the purpose of unlading goods on board of them belonging to neutrals, their being left here as in a place of deposit, and in “charge of the French consul,” with only a single man on board of each, the prize crews having returned to the Hamelin, which then went to sea to procure from the French fleet assistance, so as to return here and take said vessels out to sea—all this in direct violation, not only (as the Brazilian government claimed) of their neutrality, but in contravention of the police regulations of the port, which were made known to the French legation and to the commander of the French vessel—will be found in the annex hereto, together with a statement of the correspondence relating to the matter.

Although these occurrences caused great sensation and display of feeling here in Rio, at the time, (in September and October, 1870,) I find no account of them, nor reference thereto in Mr. Blow’s dispatches to the Department.

I have, therefore, made out the annexed narative and statement from the report of the Brazilian minister of foreign affairs, presented in May, 1871. The original report has been sent by this packet along with my No. 19. This narrative is condensed from pp. 7 to 23 of the report, and from the correspondence in the same volume, appendix, pp. 26 to 183, to which I respectfully invite your attention.

Supposing that these documents (report and statement) might be useful to Mr. J. C. Bancroft Davis at Geneva, I have already sent to him (by the English packet hence on the 23d) duplicates of both; since they refer to, and profess to explain and illustrate the previous Brazilian circulars in regard to neutrality, which (reprinted in this report) I transmitted to you with my No. 11.

I shall be glad if these can be found of service.

I am, &c,

JAMES R. PARTRIDGE.

[Annex to dispatch No. 20, from Brazil.]

A narrative of the facts and résumé of the correspondence between the Brazilian government and the French and the North-German legations in Brazil, in relation to the allged violation by the French of Brazilian neutrality and their abuse of right of asylum in Brazilian ports, during the late Franco-German war, by their bringing into Rio de Janeiro North-German merchant-vessels captured off the Brazilian coast, delaying the said prizes in that harbor beyond the twenty-four hours allowed, and attempting to leave them there in a neutral port as a place of deposit for prize, while the captor proceeded to sea to take other prizes. Taken from the “Relatorio” or Report of the Brazilian minister of foreign affairs of May, 1871.

On the 14th September, 1870, two German merchant-vessels, the Lucie and Concordia, were, by officers in charge, brought into the harbor of Rio, as having been captured by the French gun-boat Hamelin, as her prizes of war. The entry of such vessels, under such circumstances, was permitted by the Brazilian circular of August 27, 1870, in which reference was made to those of August 1, 1861, and June 23, 1863, and a permission to remain twenty-four hours accorded.

The necessity of leaving at the expiration of that period was notified to the commanding officers of the prizes.

It appearing, however, that on board those German vessels were goods of neutrals, the imperial government admitted that, under the principles laid down by the congress of Paris, 1856, more time would have to be allowed in order to permit the unlading of such neutral’s goods, and that as soon as this could be effected the vessels must leave.

The German legation at once claimed that Brazil was bound to restore those vessels to their owners, and to exclude the Hamelin from the ports of Brazil, because, first, the Concordia had been captured in Brazilian waters, in violation, by France, of Brazilian neutrality; second, because the Hamelin having left Rio on the 14th August, and returned on the 14th September, had not in the interval entered into any French, nor into any neutral port, but had evidently been lurking in the ports and under islands of the coast of Brazil. And on the 17th September the same (German) minister claimed the release and restoration of the other vessel (Lucie) on the same grounds.

The French legation, on the other hand, declared that the prizes had been taken six miles and six hundred meters distant from the Maricá Islands and on the high seas, outside the territorial jurisdiction. And that the Hamelin, having left Rio for Montevideo, on the 14th August, had entered the last-named port on the 20th, and left there on the 2d September, and had returned to Rio on the 13th September.

The Brazilian minister of foreign affairs then addressed a letter of inquiry to the president of the province of Rio de Janeiro, requiring him to make inquiry and take proofs; who, “some time afterward,” answered that nothing could be proven, notwithstanding every effort and search up and down the coast for persons who must have seen the fight or attack, in case it had taken place so near land as alleged, and that the Hamelin had not been in any Brazilian port, and had not been seen hovering on the coast.

The Brazilian government therefore concluded that there had been (then) no violation of Brazilian neutrality by the act of the Hamelin, and therefore could not comply with the demand for restoration, nor for the exclusion of the French capturing vessel from Brazilian ports, during the continuance of the war. This exclusion was afterward ordered, for other reasons, as stated below.

The German legation in Brazil then objected to the admission into Brazilian ports of German vessels taken as prize under the above circulars, as, of itself, a breach of neutrality, which, rightly understood and practiced, would equally exclude all vessels claimed as prize by either belligerent, and especially since the German government had given orders not to capture merchant vessels belonging to the enemy, by the order of 18th July, 1870.

The Brazilian government replied that this new rule, or order, was one which was not obligatory on any power who did not acknowledge its principle, and that no change of the rule of neutrality (which admitted prizes of both belligerents, with delay of twenty-four hours) could be accepted, unless admitted by the other belligerent, and agreed to by this government also; which, when it is laid down the rules for conduct to its officers and agents in its circulars, could not and did not know the new exception introduced or proposed by the German government. Besides, (as since appears,) the decree of 18th July, 1870, was afterward revoked by another, issued (at Versailles) by the same government in January, 1871.

The (Brazilian) circulars of 1861 and 1863, which were thus objected to by the (Prussian) North German government, were objected to also by the French, and for reasons quite as unsound. For (the French chargé stated) those circulars imposed restrictions on the freedom of action of the French naval forces. France maintained a large navy; the Germans, none.

This last had a large army; the French army was not so numerous. France thus diverted, to the enlargement and maintenance of her navy, large sums; which, in case no such armament existed, might have gone to the increase of her army. That government, therefore, which by its acts, under form of preserving its own neutrality, limited or restrained the efforts of the French naval force upon its enemy’s commerce, in effect, assisted that enemy.

The Brazilian government answered that both France and Germany, by their reclamations, attempted to set up a new rule of neutrality, namely, that a neutral power should formulate the conditions of its neutrality according to the distribution and organization of the land and sea armanents of the respective belligerents. It is needless to point out that the attempt to enforce such a novel regulation, would at once involve the neutral in the great difficulty (among others) of requiring the condition of neutrality to change with the alternating vicissitudes of a war.

The Brazilian government, therefore, would maintain the attitude in which it had placed itself, which was justified by the principles maintained before the outbreak of the Franco-German war, and which had been sustained by the positions assumed by the French government, and by the decrees in French courts of prize.

The discharge of merchandise belonging to neutrals on board the Lucie was completed on the 24th September, 1870.

The chief of police was, therefore, directed to notify the officer in charge of that vessel, as well as the officer in charge of the Concordia, as soon as she had landed such goods from her cargo; and the fact of such order having been given was made known also to the French legation in Rio.

At the expiration of the time allowed and thus prolonged, and notwithstanding the declaration of the French chargé that the Hamelin (the captor) would conform to the notice, it was not complied with. The Hamelin had sailed from the port on the 23d September, having left on board the two captured vessels in the harbor an insufficient number of men to navigate them.

The German minister at once declared this condition to the Brazilian government, and protested against any attempt to increase the number of men while in this harbor.

The French chargé directed the French consul to order the departure of the Lucie and of the Concordia. “as soon as certain repairs had been made which were indispensable to the prosecution of their voyage;” and asked a further prolongation of time therefor. The Brazilian government declined, stating that the delay of twenty-four hours, allowed by the rules of neutrality, and permitted by their instructions, could be prolonged only in case of “forced arrival,” (by stress of weather,) and to discharge goods on board belonging to neutrals. In fact, when the Hamelin left, on the 23d of September, she had placed on board of each of her prizes one man, sent by the French consul, and taken from on board a French merchant-vessel in the harbor, the Mineiro. Any increase of armament, or addition to their crews, would not be allowed; (and besides, the Hamelin had already, by taking back on board the prize-masters and crews which she had placed on board these vessels at the moment of capture, really augmented her own crew by an addition, in this port, to the number on board of her when she entered.)

The French consul then (in a note to the chief of police) asked permission to place on board the prizes five men taken from other French vessels, who should assist only until they had passed the bar, and should return in the tug-boat which was to tow them out.

The French chargé then also discovered that the second condition (case mentioned and provided for) in the Brazilian circular of 1863 was not applicable to prizes, but only to vessels of war, and that since before the war a French merchant-vessel would be entitled to engage and receive on board such number of men as might be necessary to continue her voyage, to refuse it now to the Lucie and Concordia, (the captured vessels,) would be a violation of that admitted right, and asked a further delay in order to be able (to assure the safe departure) to get the vessels safely to sea.

The Brazilian government refused, and said that the prohibition upon new armament or increase of crew applied to such vessels as the Lucie and Concordia, and must so apply, since otherwise any vessel of war capturing many merchantmen, and weakening her own force, by the distribution among them, from her own company, of prize-master and crew, could come into a neutral port, there deposit her prizes in safety, without crews, receive back her own, and again go to sea to repeat such maneuvers. It then appeared that the French chargé was about to permit, if not to authorize, the act (declared by the French consul to the chief of police) to tow the prizes out to sea by a French gun-boat, which he had sent for and asked from the commander of the French naval forces on this station. Whereupon the Brazilian government notified the French legation that those vessels would not be permitted to leave this port even in tow of a French vessel of war, and this resolution was also made known to the German minister.

The French legation, on the 7th October, (mark, the prizes had entered on the 14th of September, and the discharge of goods belonging to neutrals was accomplished by the 24th of September and 1st October,) protested against such order, and said: “If Brazil does not wish to receive into her ports vessels captured as prize of war, she should have so declared in her answer to my notification (of the declaration of war between France and North German Union) on the 14th August last, and should, at the time of their coming in, have objected to the admission of the Lucie and Concordia.

“Once received in this port, it would be too late to apply to them rules which were only made made known to me on the 16th September, (after their arrival,) and which could not be allowed to have a retroactive effect.

“Admiral Fisquet has just written me that he will send to Rio the dispatch-boat Le Bruix, to take away the prizes. I therefore beg your excellency will give orders to allow their departure, it being understood that on board the captured vessels there shall be placed no men enlisted or engaged in Rio de Janeiro.”

The Brazilian government answered with a recapitulation of dates and a narration of occurrences in this matter, and stated that the Hamelin had come in with her prizes under the privileges accorded to belligerents by a neutral power, and was, therefore, to be held to strict compliance with the requirements and conditions of such permission; that the time for stay, limited to twenty-four hours, was known to the commander of the Hamelin before his arrival; that such stay was prolonged simply for the benefit of those neutrals whose goods were laden on the prizes; that the Hamelin had departed with persons on board taken from the prizes, (French, and of her own crew;) that the prizes had in fact remained long beyond the time allowed, and because the captors had not placed on board a crew sufficient to take charge of them; that the French commander had gone out, to communicate probably with the admiral, and to bring from the fleet aid to make valid the possession of the prizes, which aid it was proposed to put on board (though not recruited) within this harbor; that thus, in fact and effect, there had been either an abandonment of prize in this port, or else there was an attempt to make a neutral port a place of deposit for the safe-keeping of vessels captured, and before and in delay of their being adjudged good prize of war by a competent tribunal; that by all this a violation of the neutrality of Brazil had occurred, but that this government (Brazil) would proceed only after consultation of the council of state; that, under these circumstances, the departure of Le Bruix could not be allowed with those vessels. Orders were, on the 10th October, issued to the captain of the port to take precautionary measures “to prevent any accident,” and this was notified to the French legation. On the 11th that legation answered that it persisted in considering the captured vessel good prize until it was otherwise declared by a competent court, (conseil des prises;) that “in order to take away any pretext (sic) from the Brazilian government undertaking to assume possession of the two vessels, he had asked the commandant of Le Bruix to place on board (in this harbor, of course) a crew sufficient for handling the vessels in the port; and, to prevent any accident, (by reason of swinging at anchor among other vessels,) that the Bruix would at once get ready to take those prizes to sea, and that if his (your) excellency wished to assume the grave responsibility of preventing such departure by force, his excellency had only to give order to the forts to fire upon the vessel. The Bruix will stop at the first gun. The French government will afterward decide how this act of hostility by the Brazilian government shall be answered.”

The Brazilian government answered by informing the French legation that, on next day, 14th October, a guard would be placed on board the two vessels Lucie and Concordia, and an inventory taken, in presence of Brazilian agents, and of the French consul, if he chose to be present. The French dispatch-boat Bruix came into port on the 13th October, and the French consul was notified, by the chief of police, that no persons could be placed on board the prizes from the Bruix. Nevertheless a number of men from the Bruix were placed on board those two vessels, and preparations were made to depart with them. Against this the Viscount de Sao Vicente (Br.) protested as a new violation of neutrality, and of the police of the port.

The German minister (Mr. de St. Pierre) also protested to the Brazilian government against such action being permitted, and against the departure of the captured vessels.

The report of the minister of foreign relations then states that the final resolution taken by the Brazilian government was made known to both legations, as follows:

“The Imperial government, having duly considered the means of making available its rights, has preferred those which conform to its own regulations and the principles acknowledged in the law of nations, and with usages which prevail. It therefore declares to the chargé d’affaires—

• “1. That the steamer Hamelin will not be admitted into any port of the empire hereafter during the war between France and Prussia, and orders will be sent to secure that end to the different ports and officers.
• “2. That the Imperial government protests to, and will claim from, the French government the proper reparation for this violation of its rights of sovereignty, and in relation to asylum and neutrality, and for the consequences therefrom resulting.
• “3. That, to this end, orders will be given, so that the prizes above mentioned can depart from this port, with the crews improperly placed on board them from the Bruix. They must depart within twenty-four hours, dated from the notice which will be sent to-day to the commander of the Bruix. It must also be noted that, since a German (sailing) merchantman left this port to-day at 2 o’clock, the Bruix cannot be allowed to depart until after the expiration of the seventy-two hours prescribed by the 5th (condition) case provided for in the circular of 23d June 1863.

“The French chargé protested against this exclusion of the Hamelin, because, in his judgment, that vessel had brought her prizes into Rio only out of consideration for and for the purpose of discharging the merchandise on board such prizes belonging to neutrals.

“The German minister protested anew against the permitted departure of the German vessels as prize of the French vessel of war, and said ‘he would inform his government of the unsatisfactory result of his efforts to obtain from Brazil a decision in those respects more in accordance with the duties of a neutral state.’”

In connection with this, a question afterward arose as to the proper parties to whom should be paid the freight due by the (neutral) owners of goods landed here from those two German vessels.

The French chargé submitted this question to his government, which answered that the (French) consul should deliver the goods to such neutral owners who would sign a declaration obliging themselves to pay the amount of the freight to the French government, if it should, after an understanding with Brazil, think that it was due to the captor. The French charge had complained that the North German consul had made a visit and search on board the two vessels, going in his uniform, and in a boat, having his flag hoisted, and at the moment when the crew in charge had retired, after discharging neutral goods, and while a guard (one man) only had remained on each vessel.

The Brazilian government objected to this proceeding by the North German consul, and the North German minister explained it in the following manner:

“The consul, (Mr. Haupt,) for reasons of duty, having to visit the German vessel Fetisch, anchored in this port, and passing, on his way to that vessel, the Lucie and the ConCordia, thought he could, in his way, ask the two French sailors, belonging to the Mineiro, and the Brazilian officer (employé) some questions in relation to those two vessels, Lucie and Concordia. He did not go on board as alleged.”

Issue of passports viséd by the French consul in Rio, and stating in such visé that the bearers were “engaged to enter the military service of France,” forbidden by the Brazilian government, and leave to depart denied to such persons.

Eighteen passports viséd here on the 17th October, 1870, by the French consul, with the statement made thereon that said person to whom such passport was granted was “engaged to enter into the military service of France, and was to present himself to the proper authority,” were brought to the office of the chief of police in Rio, to be allowed the corresponding permit of departure.

The chief of police refused to allow the pase to such passports; and his action was authorized by the Brazilian government, who directed him to inform the French consul that such recruitments or engagements to enlist, made here on neutral territory, Whether expressed or not, were in violation of Brazilian laws and of Brazilian neutrality.

Note.—From the foregoing relation it will be seen that the two vessels, (German,) Lucie and Concordia, were captured by the French gunboat Hamelin, and brought into the port of Rio on the 14th September, 1870. Notice to depart was given, but delay was prolonged for the purpose of discharging goods of neutrals.

This unlading of goods of neutrals was finished by the Lucie on the 22d September, (eight days after arrival,) and by the Concordia on the 1st of October; that the capturing vessel (Hamelin) left Rio a day or two after bringing in those prizes, leaving on board only a few men taken from a French merchant-vessel in port, and receiving back her own crew and the officers placed in charge of those vessels when taken at sea; but leaving the vessels, as the French chargé said, under the guard and in custody of the French consul in this port; that the Bruix (dispatch-boat) was sent up to Rio by the French admiral on the request of the French charge here, communicated by the Hamelin, to take away the vessels captured at sea, and brought in and left here by the Hamelin; that from the Bruix, notwithstanding the express prohibition by this government, made known to the French legation, and in violation, also, of the police regulation of the port, as well as of Brazilian territory, men were sent from the Bruix and placed on board these vessels, which, afterward, in spite of protests by the German legation, and of Brazilian rules and declarations, were allowed by the Brazilian to be carried, under convoy of the French vessel Bruix, out of this harbor, where they had been in deposit, under charge of the French consul, as prize, from the 14th September to the 23d October, 1870.

This yielding, on the part of the Brazilian government, can only be traced to the same cause which induced them to surrender French merchant-vessels captured by Brazilian cruisers in the river Plate, in 1828, where Vice-Admiral Roussin appeared in this harbor (6th July) with twelve sail of the line, drawn up in’array in front of this city, and exacted their surrender and indemnity to the owners.

The Brazilian minister (Marquis de Arocaty) wanted to require, as preliminary to any discussion or action, the withdrawal of the naval force.

This, however, was not withdrawn, but only “ceased its hostile attitude.” Negotiations were concluded within cannon-shot of the French men-of-war, and Brazil yielded all points.

The restoration of those vessels was claimed on the ground that Brazil had given no notification of the blockade which those vessels were alleged to have violated, (which was true,) and an indemnity was allowed. The Emperor (D. Pedro I) then received the visit and compliments of the French commander, who had “ceased his hostile attitude,” though remaining in port with twelve vessels of war until the treaties were concluded.