Close upon the outbreak of our troubles, little more than one month after the bombardment of Fort Sumter, when the Rebellion was still undeveloped, when the National Government was beginning those gigantic efforts which ended so triumphantly, the country was startled by the news that the British Government had intervened by a Proclamation which accorded belligerent rights to the Rebels. At the early date when this was done, the Rebels were, as they remained to the close, without ships on the ocean, without prize courts or other tribunal for the administration of justice on the ocean, without any of those conditions which are the essential prerequisites to such a concession; and yet the concession was general, being applicable to the ocean and the land, so that by British fiat they became ocean belligerents as well as land belligerents. In the swiftness of this bestowal there was very little consideration for a friendly power; nor does it appear that there was any inquiry into those conditions-precedent on which it must depend. Ocean belligerency, being a “fact,” and not a “principle,” can be recognized only on evidence showing its actual existence, according to the rule first stated by Mr. Canning and afterward recognized by Lord John Russell.[53] But no such evidence was adduced; for it did not exist, and never has existed.
Too much stress cannot be laid upon the rule, that belligerency is a “fact,” and not a “principle.” It is perhaps the most important contribution to this discussion; and its original statement, on the occasion of the Greek Revolution, does honor to its author, unquestionably the brightest genius ever directed to this subject. According to this rule, belligerency must be proved to exist; it must be shown. It cannot be imagined, or divined, or invented; it must exist as a “fact” within the knowledge of the world, or at least as a “fact” susceptible of proof. Nor can it be inferred on the ocean merely from its existence on the land. From the beginning, when “God called the dry land Earth, and the gathering together of the waters called He Seas,” the two have been separate, and power over one has not necessarily implied power over the other. There is a dominion of the land, and a dominion of the ocean. But, whatever power the Rebels possessed on the land, they were always without power on the ocean. Admitting that they were belligerents on the land, they were never belligerents on the ocean.
“The oak leviathans, whose huge ribs make
Their clay creator the vain title take
Of lord of thee, and arbiter of war,”—
these they never possessed. Such was the “fact” that must govern the present question. The rule, so simple, plain, and intelligible, as stated by Mr. Canning, is a decisive touchstone of the British concession, which, when brought to it, is found to be without support.
Unfriendly in the precipitancy with which it was launched, this concession was more unfriendly in substance. It was the first stage in the depredations on our commerce. Had it not been made, no Rebel ship could have been built in England: every step in her building would have been piracy. Nor could any munitions of war have been furnished: not a blockade-runner, laden with supplies, could have left the English shores, except under a kindred penalty. The direct consequence of this concession was to place the Rebels on an equality with ourselves in all British markets, whether of ships or munitions of war. As these were open to the National Government, so they were open to the Rebels. The asserted neutrality between the two began by this tremendous concession, when the Rebels, at one stroke, were transformed not only into belligerents, but into customers.
In attributing to that bad Proclamation this peculiar influence I follow the authority of the Law Lords of England, who, according to authentic report, announced that without it the fitting out of a ship in England to cruise against the United States would have been an act of piracy. This conclusion was clearly stated by Lord Chelmsford, ex-Chancellor, speaking for himself and others, when he said: “If the Southern Confederacy had not been recognized by us as a belligerent power, he agreed with his noble and learned friend [Lord Brougham], that any Englishman aiding them by fitting out a privateer against the Federal Government would be guilty of piracy.”[54] This conclusion is only according to analogies of law. It is criminal for British subjects to forge bombs or hand-grenades to be employed in the assassination of a foreign sovereign at peace with England, as when Bernard supplied from England the missiles used by Orsini against the life of the French Emperor,—all of which is illustrated by Lord Chief-Justice Campbell, in his charge to the jury on the trial of Bernard, and also by contemporaneous opinions of Lord Lyndhurst, Lord Brougham, Lord Truro, and at an earlier day by Lord Ellenborough in a case of libel on the First Consul. That excellent authority, Sir George Cornewall Lewis, gives a summary drawn from all these opinions, when he says: “The obligation incumbent upon a state of preventing her soil from being used as an arsenal, in which the means of attack against a foreign government may be collected and prepared for use, is wholly independent of the form and character of that government.”[55] As every government is constrained by this rule, so every government is entitled to its safeguards. There can be no reason why the life of our Republic should be less sacred than the life of an Emperor, or should enjoy less protection from British law. That England became an “arsenal” for the Rebels we know; but this could not have been, unless the Proclamation had prepared the way.
The only justification that I have heard for this extraordinary concession, which unleashed upon our country the Furies of War to commingle with the Furies of Rebellion at home, is, that President Lincoln undertook to proclaim a blockade of the Rebel ports. By the use of this word “blockade” the concession is vindicated. Had President Lincoln proclaimed a closing of the Rebel ports, there could have been no such concession. This is a mere technicality; lawyers might call it an apex juris; and yet on this sharp point England hangs her defence. It is sufficient that in a great case like the present, where the correlative duties of a friendly power are in question, an act fraught with such portentous evil cannot be vindicated on a technicality. In this debate there is no room for technicality on either side. We must look at the substance, and find a reason in nothing short of overruling necessity. War cannot be justified merely on a technicality; nor can the concession of ocean belligerency to rebels without a port or prize court. Such a concession, like war itself, must be at the peril of the nation making it.