Sailing Through Loopholes
The Burden of Neutrality During the American Civil War
This article was originally published in the Fall 2012 issue of the Columbia Undergraduate Law Review.
Sam Berman is a junior at Colgate University. He can be reached at firstname.lastname@example.org.
It is the right of the neutral, remaining at peace, to shut out war altogether from his own shores and his own waters, to repel its first approaches, no matter in what shape it may come or under what insidious disguise, and to prohibit belligerent ships from making his ports and roadsteads a station whence they may watch for and attack the enemy. It is his right to make, for that purpose, any regulations he thinks fit, provided he applies them to both belligerents alike.[i]
The Failure of British Neutrality
The Confederate States of America was formed in early February 1861 when seven states seceded from the Union after the election of President Abraham Lincoln. Hostilities began on April 12 with the Confederate attack on Fort Sumter, South Carolina, marking the start of the American Civil War (1861-1865). Contemporary observers did not believe the war would last long. The Union had every conceivable advantage: manpower, munitions, and perhaps most important and understated of all, naval supremacy. The Confederacy had broken away from a preexisting nation, scavenging what it could when it left, but mostly having to start fresh. [ii]
All it took to make an army was a cause that men could rally behind, a will to fight, and volunteers with guns who called themselves soldiers. Confederate pride ensured that this would not be a problem; when the war began, volunteers were plentiful. Correcting the naval imbalance was an entirely different story. Incredible sums of money, shipbuilding expertise, and a variety of very specific construction materials were necessary to build a single vessel. But the Confederacy was agrarian from its plantation system and cotton-based economy, lacking the ability and resources to produce even a single ship capable of posing a threat to Union forces.[iii]
Confederate President Jefferson Davis initially sought to work around this shortcoming through privateering, attacking the Union financially rather than directly.[iv] This plan quickly proved to be a failure; in mid-April 1861, less than two weeks after Davis had begun to issue letters of marque, President Lincoln declared that he would use the Union’s incredible naval superiority to blockade the Confederate coastline, a 3500-mile stretch. Though there were holes in the net and vessels could slip through, blockade running was risky, especially with captured vessels that were not particularly quick, making the taking of prizes a difficult and exceedingly dangerous task that few were willing to take on.[v] Not only had the blockade made privateering next to impossible, but even basic trade was made exceptionally difficult, cutting off Southern trade and isolating the rebels. Finding a way to combat the Union navy was now more pressing than ever.
Though privateering had failed, the root of the idea was fundamental to Confederate success in the ocean. The only chance the Confederacy had to correct the imbalance in naval strength was to attack trade, pursuing a type of guerrilla warfare on the high seas. With this in mind, the Confederate Secretary of the Navy Stephen Mallory devised a clever plan. Mallory intended to build a fleet of merchant raiders to disrupt Union shipping. They would be scavengers built solely to plunder the ocean, picking off commercial vessels and living off the spoils of their prizes. Captured ships would either be converted into additional merchant raiders to wreak further havoc, or they would be burned. They would essentially be state-owned privateers with the fundamental distinction that they were not paid for prizes, and so they would have no reason to come to port except to refuel.[vi]
Mallory’s ships were designed to be sturdy and durable vessels that were built to last. Wood was used as the primary material both for its lightness and low cost. They were to be relatively small, lacking the overwhelming firepower and large size of men-of-war for the sake of speed, but still boasting more than fair endurance and a formidable armament. They would employ a combination of wind and steam for their power source. The most important and modern aspect of their design was a retractable screw device that allowed the propeller to be lifted out of the water, allowing these ships to venture into shallow waters and, more importantly for their purpose, reduce drag while under sail. This allowed them to use the wind more effectively and reliably than similar vessels that lacked this device, making them less dependent on their stores of coal for steam, and thereby allowing them to refuel less frequently and stay out at sea for longer periods of time. These “screw steamers” were a clever combination of new and old shipbuilding practices to maximize their effectiveness as commerce raiders while simultaneously keeping costs relatively low, creating a new class of ships that would be able to stay at sea for months at a time with little difficulty.[vii]
The secretary’s plan was ambitious and he was well aware of the South’s inability to build such vessels. It was quite apparent that the project would have to be outsourced. Great Britain was the ideal location: it was relatively close and it was the shipbuilding capital of the world. Mallory sent several Confederate agents to Liverpool to complete the project, most notably the former U.S. Naval Captain James D. Bulloch who spearheaded the operation. The plan, however, had one major drawback: as of May 13, 1861, Britain had issued a Proclamation of Neutrality, thereby declaring its intent to remain neutral in the conflict. Bulloch could not violate the Queen’s neutrality, and would therefore have to act surreptitiously under the nose of the British government.[viii]
The Proclamation of Neutrality was an incredibly important statement: it was Britain’s announcement of its “Royal determination to maintain a strict and impartial neutrality” in the conflict between the Confederacy and the Union.[ix] It was a notification to the world, one that was only necessary in the face of de facto war between two separate powers, which the conflict had become as a consequence of Lincoln’s blockade. According to the rules of international law, “a nation could not blockade its own ports because blockade was a recognized part of war only between independent nations.”[x] As a British statesman had once put it, “If your ports are blockaded, then there is war, if war, then there are belligerents.”[xi] Because the war had taken on a maritime character and was likely to affect more than just America, Britain’s declaration of an official stance was the next logical step. As a result, the Proclamation had the implication of recognizing the Confederacy as a belligerent power; it was not a nation, but it was a separate entity from the Union. The Proclamation conferred upon the Confederacy the status of a quasi-political entity, providing it with a certain degree of legitimacy in the international community. This gave the Confederate Government certain rights that soon proved to be crucial, including the abilities to solicit loans and purchase arms from British subjects.[xii]
The Proclamation was more than a declaration to the international community. It was a warning to Britons, charging them “to abstain from violating or contravening…the laws and statutes of the realm…as they will answer to the contrary at their peril.”[xiii] It declared that Great Britain, both its people and government, would conduct themselves in accordance with preexisting neutral policy. This policy was determined by
a certain Statute made and passed in the 59th year of His Majesty King George III, intituled ‘An Act to prevent enlisting or engagement of His Majesty’s subjects to serve in a foreign service, and the fitting out or equipping, in His Majesty’s dominions, vessels for warlike purposes, without His Majesty’s license,’[xiv]
more commonly known as the Foreign Enlistment Act of 1819.
The Foreign Enlistment Act was responsible for guiding British neutral conduct during the war, and as Mallory had instructed, Bulloch was determined to do everything in his power to ensure that his actions abroad did not violate the Queen’s impartiality; the last thing the Confederacy needed was to provide the British government with any reason to seize these vessels. The problem, however, was that the limits of neutrality were mostly unknown; the limits of neutrality in regard to building ships for belligerent powers were completely untested. Even Lord John Russell, Britain’s foreign minister, once admitted that the cabinet was unclear on this aspect of the law. Therefore Bulloch’s first step abroad was to determine what exactly the law meant so that he knew what he could and could not do, hiring legal advisors to analyze the Foreign Enlistment Act and direct him in his best course of action.[xv]
Bulloch’s legal advisors informed him that the issue at hand was tied exclusively to Section Seven of the Act, which addressed the legality of constructing vessels in neutral British territory for belligerent powers with which Britain was at peace. According to Section Seven,
If any person within any part of the United Kingdom [or any other part of Her Majesty’s dominion]…shall equip, furnish, fit out or arm or endeavor to equip, furnish, fit out, or arm, or procure to be equipped, furnished, fitted out or armed, or shall knowingly aid or assist, or be concerned in, the equipping, furnishing, fitting out or arming of any ship or vessel with intent or in order that such ship or vessel shall be employed in the service of any foreign prince [against a power with which Her Majesty is at peace],[xvi]
then those who had done so or conspired to do so could be prosecuted under the Statute for violating Great Britain’s neutrality.
The legal advisors’ interpretation of this convoluted, ambiguously vague statement came to guide Bulloch’s actions for years to come. As they saw it, the statute boiled down to the matter of intent. They believed that a person could only be condemned for a violation of neutral policy if he had armed a vessel in Britain’s domain and if there was clear intent for aggressive use by a belligerent power against another power that was not at war with Britain. Building a vessel was not an offense but equipping it for war was. As long as Confederate vessels were constructed without any sort of armament and left neutral British territory unarmed, the advisors attested, then the Queen would not be able to prove intent, and the Foreign Enlistment Act would not have been violated. The Act only applied to actions undertaken in British territory, so it would not be illegal for these vessels to then be equipped outside of Her Majesty’s jurisdiction. Of course, the seventh section of the Act had never been tested; England lacked any relevant case law on the matter. This interpretation was entirely theoretical.[xvii]
Bulloch carefully adhered to this analysis of the Act. The ships that he had constructed were disguised as sturdily constructed merchant and passenger vessels, built without any sort of armament. The shipbuilders he hired were either ignorant or pretended to be ignorant of the true purpose of these ships; they made contracts with Bulloch for reinforced vessels that could easily be converted into merchant raiders, but evaded the intent provision of the statute because the ships were not built explicitly for war. Such vessels could clear British waters and leave the bounds of the Queen’s neutral territory without violating the Foreign Enlistment Act. Once they had done so, there was nothing to prevent them from being armed in another port outside of the kingdom. In other words, an unarmed ship could be constructed in Britain with the intent to be armed at a later time, leave neutral territory, and then be armed elsewhere without a violation of the law. Furthermore, the Proclamation of Neutrality had given the Confederacy the right to trade for arms with British subjects, so the armament itself could also come from Britain. As long as the unarmed ship and the ship supplying the armament left Britain separately, then the Foreign Enlistment Act had not been violated. Again, the law was untested, and this analysis was purely theoretical at the time. It appeared that it would not be illegal for these so called merchant vessels to go to the Confederacy, but the lack of case law kept Bulloch on edge. As a precaution, he acted as secretively as possible, hoping to prevent British officials from learning that these vessels were meant for the Confederacy at all. He wanted to give the Queen’s Government no reason at all to take his ships.[xviii]
The analysis provided for Bulloch proved to be in line with the Crown’s own interpretation of the statute. Time and time again, Bulloch contracted ships that would be used for war but were not warships, legally acting within the bounds of the Foreign Enlistment Act. The Confederacy’s greatest maritime predators were all built in England, and there was nothing that Her Majesty’s Government could do to stop it. Until the British closed this loophole, the Confederacy hoped to sail its fleet through it. [xix]
I argue that Great Britain’s Foreign Enlistment Act, meant to guide England’s conduct as a neutral party, was too narrow in its design, and it ironically made it impossible for the nation to maintain strict and impartial neutrality. The shortcomings of the statute gave men like Bulloch too much room to maneuver on the outskirts of the law, allowing him to act without impinging upon the Queen’s legal neutrality, though violating her actual neutrality. The British government, namely Lord Russell, was forced to go beyond what the law allowed to do what was necessary to enforce the sprit of the Foreign Enlistment Act rather than the letter of it. The Foreign Enlistment Act was a relic of a past era, a flawed legal document that actively prevented Britain from achieving true neutrality, which the British government demonstrated by its departure from the statute, doing whatever it took to prevent the escape of Confederate vessels. It was only by going beyond the law that Britain could adhere to what the Government considered to be its true obligations as a neutral party.[xx]
Historians have argued about Her Majesty’s success in maintaining neutrality in regard to Confederate shipbuilding. Mountague Bernard, one of the earliest scholars on the international dimension of the war, has argued staunchly in support of the British, maintaining that the Queen’s government consistently and systematically acted to aid neither the Confederacy nor the Union.[xxi] There is value to this claim: Great Britain did everything it could to honor its declaration, though Bernard has portrayed the British response to Confederate shipbuilding too statically, failing to capture the complexity and developing nature of what Britain felt it had to do to maintain neutrality.
It was not until recently that scholars began to focus on the complicated nature of Britain’s response to Confederate shipbuilding in her territory while emphasizing the determination of Her Majesty’s Government to remain neutral. Frank Merli is one of the most notable historians on the subject. Unlike those before him, he highlights the inadequacy of the law and the British need to go, as Lord Russell once said, “beyond and behind the law” to do what was right. In Merli’s preeminent works on the British dimension of the American Civil War, the historian is concise in explaining that what the British understood as “neutrality” was subject to change and frequent reinterpretation. The definition provided by the Foreign Enlistment Act was too vague and too broad; it was utterly inadequate in an era when warfare and international relations were being modernized and redefined. Prime Minister Palmerston’s government did not establish an absolute interpretation of neutrality that held for every situation that arose throughout the war because there was no way to do so. Britain was thrust into the world’s first modern war with outdate legislation as its guide. John Russell (foreign minister), William Atherton (attorney general), Roundell Palmer (solicitor general), Prime Minister Palmerston, and many others who were no less important were forced to make difficult decisions in trying times. They did the best they could to maintain strict, impartial neutrality while trying to protect private property and commercial rights. Their job was not easy, nor was it enviable.[xxii]
Merli’s treatment of Britain’s developing response is only flawed by his failure to discuss the legal issues in sufficient detail. He makes it quite clear that Britain’s treatment of its neutral obligations was always changing, but he does not address a number of the specific reasons why British officials chose whether or not to detain a vessel. The strict adherence to the Foreign Enlistment Act at the beginning of the war is understated in his work, and so the departure from the statute is an underemphasized development in British foreign policy. My research therefore seeks to build on Merli’s, focusing more strongly on the strict adherence to the Act at the beginning of the war and the eventual need to go around it for the sake of neutrality.
Inadequate Law Defined: The Case of the Florida
Bulloch’s first success came on March 22, 1862, when the Oreto, later renamed the Florida, made its legal escape from Liverpool.[xxiii] The Florida was the forerunner of Bulloch’s construction projects in Britain, and she would later become overwhelmingly successful in her endeavors. She was built as a merchant vessel, but her design screamed of a far more sinister purpose. She was a seven hundred ton screw steamer, built of wood and heavily reinforced.[xxiv] The cruiser was unarmed, but she was pierced with sixteen holes for mounting weapons and four movable platforms for large rotating guns; she would likely be equipped with weapons at a later time. [xxv] The first of a new class of vessels, she was small and light enough to achieve great speeds, sturdy and durable, and capable of being well armed. Once equipped, she would be quite a formidable opponent.
A merchant vessel built with such specifications was bound to attract attention. The Florida, like so many of the other vessels suspected of belonging to the Confederacy throughout the war, was brought to Lord Russell’s attention by the diligent efforts of the American Consul in Liverpool, Thomas Dudley. Dudley’s suspicions of the Florida multiplied in January 1862 when he learned that Fawcett and Preston, a company known to do business with the Confederacy, was not only building the engines for the ship, but also having seven substantial guns with ammunition shipped to London, which Dudley astutely deduced would be used to arm the vessel at “some out-port” to skirt around the Foreign Enlistment Act.[xxvi] Furthermore, these funds for constructing the engines were advanced to Fawcett and Preston by Fraser, Trenholm and Company, another organization with known ties to the Confederacy. [xxvii] He rightly assumed that she was meant for Confederate use, reporting his suspicions to Charles Francis Adams, the American ambassador to Britain, who relayed Dudley’s fears to Russell.
Lord Russell ensured that the matter was investigated. In mid-February 1862, Samuel Price Edwards, the Collector of customs at Liverpool, had the ship thoroughly surveyed. It was clear to customs officials that the Florida was suspicious: it was unusually sturdy and obviously capable of being converted for warlike purposes, undoubtedly built for more than trade. Furthermore, the shipbuilders asserted repeatedly that the vessels belonged to an Italian shipping company, but the Italian consul denied any knowledge of this.[xxviii] The Florida’s destination was unknown, and its owner was a mystery; it was strong, durable, and likely meant for war; men with known Confederate ties funded its construction. However, it was not armed: not a single weapon, not even a signal gun, could be found on board.[xxix] Lord Russell, who made the ultimate decision in such matters, was advised that detaining the vessel would be a horrendous violation of the law.[xxx] The British government would have liked to act, but the vessel had been constructed completely legally; it was not armed and there was nothing to concretely tie it to the Confederacy. When an English merchant claimed ownership of the Florida in early March and said that the vessel was bound for Palermo, the British government, unable to contests the veracity of this claim, was grudgingly forced to allow her to depart.[xxxi]
The Florida had escaped Liverpool, but she was not yet free and clear. She arrived in the Bahamas at the end of April to receive her armament and, on May 1, the British government inspected the vessel off the coast of Nassau. As in Liverpool, the surveyor determined that she could not be detained because, despite its unusually strong design, she was still unarmed. Several days later a large part of the Florida’s crew deserted. Officials bribed these men, who then reported that they had been lied to and had gone aboard the Florida under false pretenses. The vessel, they claimed, was Confederate, and that the captain of the ship was in league with the rebels. They said that they had never gone to Palermo and that the ship would be armed in Nassau very soon.[xxxii] Thanks to these testimonies, it appeared that a case could be made to demonstrate intent to arm the vessel for use by the belligerent South in its war against the Union under the Seventh Section of the Foreign Enlistment Act. Admiralty officers believed they had sufficient grounds to seize the vessel, but their legal advisors disagreed, firmly of the opinion that evidence was still insufficient to justify seizing the vessel under the Act. They did not believe these testimonies were sufficient to demonstrate the necessary intent. The Admiralty chose to disregard this reading of the law and the judgment of skilled attorneys, taking the vessel into custody around May 7 for violating the Act.[xxxiii]
The Florida and her owners were brought to trial in August 1862 for violating the Foreign Enlistment Act, and Judge John Campbell Lees was charged to determine the legality of the seizure. Lees ruled that the statute laid out three criteria that had to be met to sustain the Crown’s detention of the vessel and convict its owners. According to the law, it was necessary that: (1) the vessel had been equipped within Britain’s jurisdiction, (2) there was clear intent to employ the cruiser in Confederate service, and (3) there was clear intent to commit hostile acts against the United States.[xxxiv] Crown lawyers could prove none of these points. The Florida had only been built, not equipped, within British territory: the vessel was still unarmed and therefore lacked “equipment.” Without an armament, there was no way to prove that the vessel was meant for aggressive use against the Union; it was, after all, built as a merchant vessel, and a Confederate-sympathizing merchant in Nassau attested that trade was its true purpose.[xxxv] The Confederate connection could not be proven either: the statements of bribed sailors, as the Admiralty lawyers had advised, were hardly conclusive, nor were the captain’s affiliation with the South or the connection between the Confederacy and the companies that had funded the ship’s construction. As a result, Lees ruled that neither the Florida nor its owners had violated the Foreign Enlistment Act, and the vessel was released.[xxxvi]
Lees’s analysis of the law was not wrong, but his decision that the Foreign Enlistment Act had not been violated was a huge blow to Great Britain’s ability to abide by neutral conduct. This was the first time that the seventh section of the statute was defined by the British courts, and its outcome was to serve as the foundation of how British officials would respond to future Confederate shipbuilding projects. Lees’s interpretation of the essential criteria for conviction placed intent as paramount. As his second and third requirements for conviction under the statute show, demonstrating that the vessel was meant for the Confederacy was insufficient. The Florida could have been openly built as a Confederate ship, and as long as it was not to be used aggressively against the Union, then the law had not been violated. Furthermore, Lees explicitly interpreted “equipment” as munitions. Even though the vessel had been designed so that it could be armed, the lack of weapons meant that the screw steamer had not actually been equipped. The Crown’s ability to respond to Confederate shipbuilding activities was extremely limited because of the narrow scope of the Act.
As one critic of the affair noted, it seemed unlikely that there would ever be a stronger case to demonstrate intent to arm a vessel for aggressive use by the belligerent South. “We may assume that no prosecution of the same type will be instituted, or if instituted, that it will fail.”[xxxvii] The connection between the financiers and the ship’s captain with the South, the vessel’s warlike design, and the lies told to the British government about the destination and ownership of the Florida all pointed to the fact that the vessel was probably meant for the Confederacy to be used for war. These suspicious circumstances surrounding the cruiser, however, were not even sufficient to maintain the detention of the vessel while it was more thoroughly investigated. The extraordinary restrictiveness of the Act meant that as long as there were no guns, there would probably be no chance of conviction.
The fault was with the law, not with Lees. His interpretation was a literal definition of what the law allowed. Nonetheless, the affair set the stage for what was to come. In accordance with the legal decision, the British government adhered to the letter of the law on the matter. Her Majesty’s Government was willing but incapable of acting except in situations where the evidence was so abundant that the vagueness of the law did not matter. Britain’s Foreign Enlistment Act was fundamentally flawed, allowing Bulloch to skirt on the edge of the law. In the years to come, the Confederate agent repeatedly violated Britain’s neutrality without actually violating it, and the Crown was forced to watch it happen, incapable of stopping him.
Testing the Limits of the Law: the Canton and the Alexandra
The case of the Florida demonstrates that one of the world’s oldest and most prolific nations was the victim of its own legal shortcomings. Britain continued to strictly adhere to the letter of the law for months to come, unable to prevent the infamous Alabama, one of the Confederacy’s most effective and well-known vessels, from making its escape from Liverpool as July 1863 came to a close.[xxxviii] The escape of these vessels and Bulloch’s continued evasion of the law was an affront to national pride. British policy began to shift; efforts by the Crown to stop Bulloch intensified, though Her Majesty’s government still acted within the bounds of the law. Testing just how far Lees’ definition of the statute could be stretched became the issue of paramount importance.
In mid-October 1863, Ambassador Adams, brought a suspicious vessel called the Canton to the attention of the British government. She was being built in Glasgow and, as Adams’ sources had informed him, she was likely for the Confederacy. “She is…altogether similar to the Alabama…. Her port holes and other characteristic features…mark her a war vessel.”[xxxix] Like the Florida, she was a screw steamer disguised as a merchant ship. The British government immediately took action and the ship was examined. Captain Arthur Farquhar (1815-1908) of the H.M.S. Hogue of Her Majesty’s Coast Guard confirmed Adams’ report, observing that the ship “is evidently built for aggressive purposes and…will probably have great speed.”[xl] In a subsequent report he added that the vessel was being fit out as a passenger ship, but “she might easily be converted…into a second Alabama.”[xli] The collector of customs and the official surveyor concurred, observing that the unarmed screw steamer was quite unusual in its design[xlii] and should therefore be prevented her from leaving her port until the government issued directions to the contrary.[xliii]
The Canton was suspicious, but that was hardly sufficient as evidence to justify taking the vessel into government custody. A connection to the Confederacy could not be proven. Although her design made it abundantly clear that she could and probably would be armed as soon as she left British waters, “her hostile intent…as flagrant and clear as if she had her guns on board,”[xliv] sturdiness and potential to arm were hardly the same as actually “equipping” in the narrow meaning of the law. The Lord Advocate of Scotland James Moncrieffe therefore decided that it would be an “unjustifiable stretch” of governmental authority to seize the vessel. He wanted to act, but believed that a “prima facie case…in regard to the character and destination of the vessel in question” was necessary “to bring it within the scope of the Foreign Enlistment Act” before he could.[xlv]
The British government continued to watch the ship with a scrutinous eye. On November 10, Edward James Reed, the chief constructor of the royal navy, examined the ship’s designs and confirmed the opinion that the Canton’s “specifications afford some…suspicion.”[xlvi] This was enough for Admiralty officials to defy Moncrieffe’s judgment on the matter, writing to the Home Secretary George Grey that “Although the law officers are of opinion that no sufficient grounds yet appear for seizing the Canton under the Foreign Enlistment Act, there are sufficient grounds for not allowing her to leave” her port.[xlvii]
This decision to detain the Canton already shows a fundamental dissimilarity to how the Florida case was handled. The case against the Florida was almost airtight: the evidence all pointed to the fact that the screw steamer was Confederate and would be used to wage war against the Union. Nonetheless, she was allowed to depart. The Canton, on the other hand, was not going to be prevented from departing solely because she was suspicious. There was no evidence tying her to the Confederacy and she had clearly not been armed. There had been no violation of the Act; the law offficers had said as much when seizure was advised against. And yet orders had been given to detain the vessel, which was probably illegal.
Measures were quickly adopted to prevent her departure. Should the Canton attempt to leave the harbor, the Collector of customs was to detain her under Clause 19 and 102 of the Merchant Shipping Act (1854), requiring her to either make a Declaration of Nationality or obtain a Certificate of Registry before she could depart. When the ship’s owners made steps to obtain either form of documentation, the collector of customs, who had the full cooperation of the Glasgow police, was to notify Moncrieffe, providing him with sufficient time to seize the vessel under the Foreign Enlistment Act. In the contingency that the Canton was cleared and departed before Moncrieffe could do so, a telegraph would be sent from Glasgow to the Collector of customs at Greenock, where clerks had been stationed night and day specifically for this purpose, who would notify Captain Farquhar, who was lying in wait onboard the HMS Hogue to take the Canton by force if he had to. An additional gunboat was stationed further down the river in case it somehow slipped past him. If the need should arise, Farquhar was authorized to station yet another gunboat in the harbor alongside the Canton.[xlviii] Unless the Queen’s government allowed it, the suspicious screw steamer would not be going anywhere.
Only three days after the chief constructor had made his report, everything was in place. The police, coast guard, and customs officials were all ready to act on a moment’s notice to stop the Canton from leaving its port. Only one thing stood in the way of due process, and that was the law itself. The legal matter was a judicial nightmare; it was a complete mystery to everyone involved if the government had the right to seize the ship and try it under the Act. The Crown had yet to make a prima facie case in regard to the seventh section and belligerent shipbuilding in neutral Britain. It was not a matter of evidence: the Lord Advocate felt that there was “strong reason to doubt whether the most unlimited access to information would materially alter the legal question.”[xlix] It was a question of whether or not the construction of vessels like the Canton and Florida were actually illegal under the Act. Whether or not Bulloch’s interpretation of the law was correct was the fundamental issue. No one knew if Bulloch’s actions violated the law, but the Lord Advocate suspected they did not.
We have not as yet any evidence that the vessel is intended for the Confederate Service. But even if we had I doubt greatly whether it would be possible on these facts to bring the case under the 7th section of the Foreign Enlistment Act…. In the present case she has not equipped and no one has attempted to equip her, and therefore it may be said with much force that no one can have aided, assisted, or been concerned in her equipment. These difficulties occur to us so strongly that on the whole matter we are of opinion that any application to the Court for condemnation of the vessel would probably fail, and that mainly because the characteristics of this particular vessel in the state in which she will leave the Clyde are insufficient to bring her within the description of the statute.[l]
Moncrieffe believed that Judge Lees was correct in his interpretation of the law. The statute, it seemed, had not been violated: the vessel had not been equipped. Moncrieffe went on to ponder whether the sturdy construction of the Canton could be interpreted as a type of equipping, but found it incredibly unlikely that such an analysis would be upheld by the courts. Equipment, it seemed, was defined only as a proper armament. The Lord Advocate conveyed his aggravation in a private message to Sir Grey. “She is so suspicious a craft that I am loath to let her go. The fact seems to be that she has been built expressly to avoid the Act; but I fear has done so successfully.”[li]
It was extremely fortunate that such a connection fell into the Crown’s lap. On November 30, one of the part owners of the ship came forward with incriminating letters sent between George Sinclair, a Confederate agent working under Bulloch who superintending the construction of the Canton, and James Pembroke, the intermediary who brokered the transaction between Sinclair and the Thompson Shipbuilding Yard, which was responsible for building the cruiser. The owner even provided the contract for the deal, leaving “no doubt whatever as to the original destination or character of the vessel.”[lii] These letters, beyond demonstrating a Confederate connection to the Canton, were significant because they also make it quite clear that the British were doing everything they could to prevent the continuation of Bulloch’s projects and those of the agents who worked under him, like Sinclair, despite the apparent lack of illegality. The connection was ironically uncovered in a series of letters in which Sinclair terminated his contract for the Canton because of Britain’s determined refusal to allow the ship to escape.[liii]
The unconcealed hostility of your government in many of its acts towards my country and the recently publicly expressed opinion of Earl Russell that he was prepared to go beyond and behind the Law…can leave no doubt on a candid mind that he will not permit the unarmed vessel…to leave England for fear she may find arms in some other part of the world and offend the Yankees.[liv]
Her Majesty’s officials did not keep it a secret that they believed Confederate shipbuilding activities impinged upon national obligations of neutrality in the American Civil War. Sinclair blames the British response on pressure from the Union, but such a claim has little validity. What the Confederacy was doing was not illegal, but it should have been. The construction of the Canton did not violate the letter of the law of the Foreign Enlistment Act, but it did overstep the statute’s intent.
The British government had made a huge leap forward in establishing a definitive Confederate connection. As far as the Queen’s officials were concerned, the termination of the contract was an inconsequential matter: though the Canton no longer had a purchaser, the ship had been commissioned by a Confederate agent and had been originally intended for Confederate use. It was now a question of whether or not that connection was enough to bring the ship within the scope of the Act based on whether or not the strict interpretation of the law’s provision of equipping would remain synonymous with arming, or if intent to arm was within limit of the Act’s applicability.
There was still no prima facie case on which to base the decision; the limits of the Act were still largely untested. However, it appeared that there would soon be such a case. While the struggle for the Canton was taking place, a nearly identical legal battle was underway for the screw steamer Alexandra, constructed in Liverpool and seized under the Foreign Enlistment Act for a violation of neutrality. The Alexandra had already been brought to trial, and a verdict was to be given at the end of December 1863, only several weeks after the discovery of the Canton’s connection with the Confederate States. This was convenient; the discovery of the Canton’s Confederate connection had brought it within the scope of the proceedings that would be established by the verdict of the Alexandra case, so the decision made about the limit of the law would be applicable. The Lord Advocate therefore elected to wait before seizing the Canton until that verdict had been given. The fate of the Alexandra was to serve as the prima facie case that the Crown so desperately needed. Moncrieffe was hopeful, writing that a ruling for the Crown “would materially alter the position of the case and the difficulties which surround it.”[lv] It is therefore necessary to describe the circumstances surrounding the Alexandra before concluding the Canton’s tale.
The British investigation of the Alexandra began in late March 1863. Like the Canton and Florida, she was a screw steamer with an incredibly suspicious design. The collector of customs at Liverpool believed she was a Confederate vessel,[lvi] and the official Survey observed that “She is well adapted for a small gun boat.”[lvii] Unlike the case of the Canton, however, the connection of the vessel to the Confederacy could be established almost immediately. Once again, Thomas Dudley’s hard work had yielded results. In his deposition to the Collector of customs, he stated that the ship was meant for the Confederacy and that it had “intent to cruise and commit hostilities against the government and citizens of the United States of America,” naming Bulloch as the man “superintending the building and fitting out” of the vessel.[lviii] Adams sent this document, along with thirteen others, including six affidavits and a number of incriminating letters implicating Bulloch in Confederate shipbuilding activities, to Earl Russell on March 30.[lix]
In several of these letters, Bulloch himself makes clear references to the intent to arm another vessel, the Alabama, with munitions from the Agrippina, a cargo ship that had departed separately from Great Britain.[lx] Bulloch was also connected to the construction of the Alexandra through the aforementioned affidavits. There was an obvious tie to the Confederacy and there was clear intent to arm, but that was insufficient grounds to justify seizing the cruiser.
There does not appear to be any evidence shown that the Alexandra is equipped, fitted out or armed within the meaning of the Foreign Enlistment Act…. She is more strongly built…than customary in merchant vessels, but …[there is] no law to prevent a British shipbuilder from building a steamer of any strength he pleases.[lxi]
Customs officials therefore believed that it would be inexpedient to seize the vessel.[lxii]
In an interesting reversal of events, the law officers of Her Majesty’s Government disagreed, arguing that the vessel should be seized under the Act. It was finally time to tests the limits of the Queen’s neutrality.[lxiii] The “important question as to the true construction of the 7th section of the Foreign Enlistment Act”[lxiv] was to finally be addressed, the true purpose of the Act to be determined. The surveyor complied with the order, seizing the Alexandra at noon on April 5, bringing it into the full custody of Her Majesty’s Government.[lxv]
The law officers justified the seizure of the Alexandra through the Act’s provisions of “intent” and “fitting out,” interpreting the statute elastically to adhere to the spirit of the law rather than its overly specific wording. If the Court agreed with their understanding of the law, then the lack of weapons would be inconsequential, outweighed by the clear intent for both Confederate usage and arming at a later time. As the law officers noted,
It is to be observed that what is prohibited [by the Act] is the fitting out with the particular intent and that no specific mode of fitting out is pointed at. The intent constitutes the gist of the offence, and any fitting out, with the illegal intent, would appear to be illegal.[lxvi]
Intent was fundamental, and the law officers hoped that a “fitting out” with intent to employ aggressively by the belligerent South would be within the limits of the Act. Fitting out and arming, they argued, were listed separately in the wording of the Act, and therefore “each expression, ‘equipment, furnishing, fitting out, arming’, ought to be construed as capable of a distinct meaning.”[lxvii]
The trial of the Alexandra pitted two interpretations of the statute against one another. On the one hand was Bulloch strict interpretation of the statute, which stipulated that Confederate shipbuilding activities had not violated the Act because the ship was not armed in British territory. All that had taken place was a commercial transaction. On the other hand was the Crown’s understanding of the situation, arguing that the ship had been “fit out” by its unusual design, allowing for an obvious and easy transition into a formidable gunboat, and therefore an actual arming was unnecessary.
The long and protracted trial began on June 22, 1863. The Crown Prosecutor Roundell Palmer was pitted against Hugh Cairns and George Mellish, two of Britain’s greatest legal minds and the Confederacy’s defense, and was severely outclassed. The defense argued that the Crown was misconstruing the purpose of the Act, arguing that it was not intended “to prohibit all commercial dealings in ships-of-war with belligerent countries,” and that it was meant to “foster and promote the development of…commerce.”[lxviii] The Alexandra was not a warship, they argued, but a merchant vessel that had the potential to be converted into one. A British shipbuilder was building a merchant vessel for the Confederacy, and there was nothing illegal about that. What the Confederacy then chose to do with that vessel was in no way directly tied to the meaning of the Act.[lxix] Judge Frederick Pollock was of the same opinion as the defense. He asked the jury if they believed that it was lawful for a neutral nation to provide ships for a belligerent for use against a nation with which the neutral power was at peace. He answered his own question, stating that the law did not prohibit the sale of munitions, and he saw no reason why the sale of ships should be fundamentally dissimilar.[lxx]
When the time came for deliberations, Pollock’s instructions to the jury made it quite clear that the issue at hand boiled down to the Act’s meaning of “intent” and “equipping.” He stated that if the jurymen believed that the intent of the agreement between the Confederate agent and the shipbuilders was to actually equip the Alexandra within British territory specifically for the purpose of war against the Union, then the Act had been violated and the defendants were guilty. However, if the members of the jury believed that “the object really was to build a ship…in compliance with a contract, leaving to those who bought it to make what use they thought fit of it, then it appears…that the Foreign Enlistment Act has not been broken,” and the defendants should be acquitted and absolved of all charges brought against them. Jury deliberations lasted less than a minute before a “not guilty” verdict was returned on June 26, 1863. [lxxi]
Pollock was no Southern sympathizer, nor was the jury pro-Confederacy. Bulloch had not violated the incredibly narrow scope of the seventh section of the Foreign Enlistment Act. The Crown finally had its prima facie case, though it did not go as the law officers had hoped. The decision legalized everything that Bulloch had done. Ships and munitions could be sold to the Confederacy as long as they were not sold together. As one newspaper stated after the trial, “this [ruling] makes construction and supplying of the Alabama and Florida…perfectly legal acts.”[lxxii] Another article summed the implications of the ruing perfectly, stating that this case
furnishes one of the most important decisions ever recorded in the annals of British jurisprudence. It declarers that according to the present state of the law we can build & send out as many vessels as any belligerent party may require, provided that they are equipped elsewhere…. The law is in a very unsatisfactory state.[lxxiii]
With the establishment of the prima facie case based on the Alexandra verdict, it is clear how the case of the Canton would be resolved. With a known Confederate connection, a suspicious design, and a clear intent to arm at a later time, the evidence available in the case of the Canton was inconsequently different from the information available to the Crown in the Alexandra proceedings, and therefore there was no reason to believe that the trial would progress differently at all. If the Canton was seized and brought to trial, there would be no reason to believe that the Court would rule that the seizure was justifiable under the Foreign Enlistment Act.
The Crown was unwilling to accept the limitations of the Act. Though this preliminary decision of the Alexandra had been made in June, Lord Russell appealed the case twice. As a result, the ship remained in detention until spring 1864,[lxxiv] giving the British government time to act in regard to the Canton. The decision in the second appeal in the Alexandra case was to be given at the end of the judicial term in 1863, coinciding with the discovery of Sinclair’s letter and the decision as to seize the vessel or not in December. The original plan was to wait on the outcome of the Alexandra decision, but at the last moment it was decided that the ruling would not be made until the following judicial term began over a month later.[lxxv] Suddenly, the Crown officials found themselves in an entirely different scenario. The case was unresolved: the Alexandra decision was not pertinent to the Canton. The Crown believed that now was the time to take action, the Home Office writing to Lord Russell that “if there are in his Lordship’s opinion sufficient grounds,” then it would be expedient to proceed with “the seizure of the vessel” immediately.[lxxvi]
On December 10, 1863, the Canton was seized “for the use of Her Majesty under the provisions of the Foreign Enlistment Act.”[lxxvii] The Foreign Office ordered that this seizure was to be maintained until the legal issue was determined,[lxxviii] despite cries of foul play by the owners and legal advisers of the vessel.[lxxix] In an interesting turn of events that directly contradict the outcome of the Alexandra trial, it was ruled in a preliminary hearing to test the sufficiency of the Crown’s evidence that it was unnecessary for the Crown to prove either an arming or an intent to arm, a decision that greatly enhanced the government’s chance of success in court. As a result of this decision and to avoid expensive and extensive litigation, no effort was made to contest the case, and the British government won by default.[lxxx] The Canton remained in government custody until the war came to an end, released to its owners in 1865.[lxxxi] This initial ruling was, quite frankly, a very poor reading of the law. Had the Confederates actually gone to trial, it is extraordinarily unlikely that Her Majesty’s Government would have been able to maintain the seizure. The Canton would have ended up much like the Alexandra.
Despite the precedence set by the Alexandra regarding the Foreign Enlistment Act’s limitations, the Alexandra did not join the rebel cause until very late in the war, and the Canton did not make it at all. The Confederacy had won the legal battle, but Russell’s appeals and the unlikely ruling of the Canton were still small victories for the British. The Foreign Enlistment Act had proved itself to be as burdensome and limited as ever, but England still prevented two formidable vessels from having a significant impact on Union commerce. The limit of neutrality was no longer a mystery, and whether or not the British government was willing to accept it was the question.
The American Civil War finally came to a close in 1865 with Robert E. Lee’s surrender to Ulysses S. Grant at Appomattox Courthouse, Virginia. It had been a bloody and protracted war, lasting far longer than any contemporary observer could have imagined. The death toll was incredible: technological advances and strategic changes had made Northern and Southern forces efficient killers. Everyone at home tried to forget, but the international community did not have that luxury. Britain’s work was not yet over.
British law was in a terrible state. The Foreign Enlistment Act had been defied for the sake of neutrality, defiling the purpose and sanctity of law. The war had begun for Britain with a clear desire to maintain strict and impartial neutrality. To define neutrality, the Foreign Enlistment Act of 1819 existed. However, the interpretations of the statute given in the Florida case and Alexandra decision demonstrated that British policy was not capable of doing what it meant to do. Britain tried time and time again to fulfill her duties as a neutral party, but she could not. Law prevented obligations from being completed, and so it became necessary to do more than what was legally permissible. The decision to go beyond the law was not made lightly or spontaneously; the definition of neutrality provided by the Act did not live up to the standards of those who were sworn to uphold the doctrine. Legal neutrality was not actual neutrality, and actual neutrality was what truly mattered. Now that the war was over, it was time to let the law catch up.
In the late 1860s, British officials began to propose changes to the Foreign Enlistment Act to widen its scope to more properly address the issue of intent. One suggested modification was to forbid dispatching ships with the knowledge that they would be employed by a belligerent power against another power that was friendly with Great Britain. Another would illegalize the construction of vessels with intent to employ in belligerent service after being fit out and armed either inside or beyond the Queen’s dominion. A third proposed allowing for the detention of vessels suspected of violating the Foreign Enlistment Act on grounds of suspicion alone, the burden of proof falling on the accused to show their innocence rather than on the Crown to show guilt.[lxxxii]
Legal neutrality was not abandoned during the war for the sake of convenience, but for the sake of the fulfillment of national obligations in maintaining proper neutrality. Had these proposed clauses existed in the statute during the war, Bulloch’s activities would have undoubtedly been halted immediately; there would have been no question if Confederate shipbuilding had violated the law. Great Britain did all she could to honor her Proclamation. The Queen’s government adhered to the letter of neutral law for a time, but the Foreign Enlistment Act hindered true impartiality. As long as the statute was abided by, complete neutrality was impossible. Unshackling herself from the law was the only way England could properly uphold her duties.
[ii] Warren W. Hassler, Jr., “American Civil War,” Encyclopedia Britannica Online: Academic Edition, accessed May 06, 2012. http://0-www.britannica.com.library.colgate.edu/EBchecked/topic/19407/American-Civil-War.
Privateers are private citizens and vessels that have been issued letters of marque by a government, authorizing them to attack foreign shipping during wartime. Privateering was a way to mobilize armed ships and sailors without having to spend public money or commit naval forces, which was especially beneficial for a power that was at a naval disadvantage, like the Confederate States, or if the enemy was reliant on trade, like the Union. Privateers disrupted commerce and pressured the enemy into deploying warships to protect their trade interests against these merchant raiders. Privateering was high-risk and high-reward, completely based on commission; captured vessels and cargo were brought to ports of the nation that had issued the letters of marque, and privateers were paid based on the value of the prizes they had taken. In many ways, privateering was less destructive than direct warfare: the goal was to capture ships, not to sink them.
All of the major European powers, not only Britain, had declared a state of neutrality in the American conflict. British neutrality regulations were less stringent than those of France and other nations considered as the site of the operation, which was also influential in the Confederate Government’s decision to carry out the plan in England.
[xx] Although the Confederacy worked to construct nearly twenty vessels in England, this paper focuses on only four of those cases. These instances of Confederate shipbuilding were selected because they represent the trend of the British response to the Foreign Enlistment Act as the war progressed.
[xxiv] As discussed earlier, wood was used because it was light and cheap. Furthermore, wood posed a less open challenge to neutrality than iron by making it more difficult to determine the builder’s true purpose.
The Bahamas were British colonies at the time, and were therefore neutral under the regulations of the Foreign Enlistment Act of 1819. The Bahamas were therefore neutral British territory, arming a vessel for the Confederacy would be a violation of neutral regulations.
Adams, Ephraim D. Great Britain and the American Civil War. Volumes 1 and 2. New York: Longmans, Green and Co., 1925.
Bernard, Mountague. A Historical Account of the Neutrality of Great Britain during the American Civil War. London: Longmans, Green, Reader, and Dyer, 1870.
Campbell, Duncan Andrew. Unlikely Allies: Britain, America, and the Victorian Origins of the Special Relationship. London, England.: New York: Hambledon Continuum, 2007.
The National Archives (TNA), FO 5/1000 Case of the Ironclads built at Birkenhead vol. 1 – vol. 4., (London, United Kingdom: Foreign Office, 1863 – 64), correspondences: 7/11/63 Adams-Russell, 9/4/63 Russell-Layard, 9/5/63 HO-Layard, 9/11/63 Russell-Adams, 9/12/63,Russell Memo, 10/8/63 Hammond-Secretary of the Admiralty, 10/8/63 Hammond-Secretary of the Treasury, 10/23/63 Colquhoun-Russell, 10/28/63 Hammond-Secretary of the Admiralty, 11/3/63 Hammond-Secretary of the Admiralty.
TNA, FO 5/1003 Case of the Ironclads built at Birkenhead vol. 1 – vol. 4., (London, United Kingdom: Foreign Office, 1863 – 64), correspondences: 12/23/63 Colquhoun-Russell, 1/12/64 Laird Brothers-Lord Commissioners of the Treasury, 1/14/64 Russell-Treasury, 1/25/64 Laird Brothers-Treasury, 2/2/64 Russell-Treasury, 2/3/64 Laird Brothers-Treasury, 2/6/64 Russell-Treasury, 3/10/64 Foreign Office-Colquhoun, 3/29/64 Foreign Office Memorandum, 4/8/64 Colquhoun-Russell, 4//10/64 Colquhoun-Russell, 5/20/64, Colquhoun-Russell, 5/20/64 Gregory-Greenwood, 5/20/64 Rowcliffe-Lairds and Others, 5/26/64 Greenwood-Rowcliffe.
TNA, FO 5/1313 Case of the Oreto or Florida, vol. 1., (London, United Kingdom: Foreign Office, 1862), correspondences: 5/14/62 Memorandum, 8/11/62 Bayley-Newcastle.
TNA, FO 5/1314 Case of the Oreto or Florida, vol. 2., (London, United Kingdom: Foreign Office, 1864), correspondences: 8/7/62 Court Memorandum.
TNA, FO 5/1315 Case of the Sumter or Gibraltar, vol. 1., (London, United Kingdom: Foreign Office, 1861 – 63), correspondences: 5/13/61 British Proclamation of Neutrality.
TNA, FO 5/1048 Case of the Alexandra, (London, United Kingdom: Foreign Office, 1863-64), correspondences: 3/28/63 Collector of customs-Treasury Commissioners, 3/28/63 Surveyor-Collector of customs, 3/30/63 Adams-Russell, 3/30/63 Board of Customs-Treasury Commissioners, 4/02/63 Customs House (hereby abbreviated CH)-Treasury, 4/04/63 HO-Treasury, 4/05/63 Surveyor-Collector of customs, 4/24/63 Foreign Office Memorandum, 6/26/63 Liverpool Daily Courier, 6/27/63 Southampton Times.
TNA, FO 5/1051 Case of the Canton or Pampero, (London, United Kingdom: Foreign Office, 1863), correspondences: 10/15/63 Warner Underwood-C.F. Adams, 10/20/63 Collector of customs-CH, 10/20/63 Surveyor-CH., 10/22/63 Captain Arthur Farquhar-CH, 10/25/63 Farquhar-CH, 11/06/63 James Moncrieffe-George Grey, 11/10/63 Edward J. Reed-Commissioners of the Admiralty, 11/13/63 Commissioners of the Admiralty-George Grey, 11/18/63 Crown Officer-Moncrieffe, 11/19/63 Lord Advocate-Home Office (hereby abbreviated HO), 11/19/63 Lord Advocate-HO, 11/19/63 Moncrieffe-Grey, 11/30/63 Galbraith-Prosecutor Fiscal, 12/01/63 Lord Advocate-HO, 12/02/63 Moncrieffe-Grey, 12/5/63 Waddington-Hammond, 12/5/63 Waddington-Hammond, 12/10/63 Trevor-CH, 12/11/63 Foreign Office-Treasury, 12/14/63 Henderson-CC, 10/19/65 Moncrieffe-Hammond.
TNA, FO 83/2218 Law Officers’ Reports, America, US, (London, United Kingdom: Foreign Office, 1863), correspondences: 7/11/63 Price Edwards-CC, 7/24/63 Law officers of the Crown (hereby abbreviated LOC)-Russell, 8/12/63 Dickins-Peel, 8/19/63 Palmer-Waddington, 8/31/63 Russell-Chairman and Committee of the Emancipation Society, 9/6/63 Russell-Adams.
TNA, FO 83/2219 Law Officers’ Reports, America, US, (London, United Kingdom: Foreign Office, 1863), correspondences: 9/1/63 Layard-LOC, 9/1/63 Layard-Hamilton, 9/3/63 Layard-Hamilton, 9/4/63 Layard-Solicitor General, 9/12/63 LOC-Russell, 9/23/63 Grey-Russell, 10/10/63 Hammond-LOC, 10/10/63 Hammond-LOC, 10/19/63 LOC-Russell, 10/21/63 LOC-Russell, 10/26/63 Hammond-LOC.
Hassler, Jr., Warren W. “American Civil War.” Encyclopedia Britannica Online: Academic Edition. Accessed May 06, 2012. http://0-www.britannica.com.library.colgate.edu/EBchecked/topic/19407/American-Civil-War.
Merli, Frank J. Great Britain and the Confederate Navy, 1861-1865. Bloomington: Indiana University Press, 1970.
Merli, Frank J. and David M. Fahey. The Alabama, British Neutrality, and the American Civil War. Bloomington: Indiana University Press, 2004.
Owsley, Frank Lawrence. King Cotton Diplomacy: Foreign Relations of the Confederate States of America. Chicago: University of Chicago Press, 1959.
“Privateer.” Encyclopedia Britannica Online: Academic Edition. Accessed May 06, 2012. http://0-www.britannica.com.library.colgate.edu/EBchecked/topic/477348/privateer.
Steele, Brent J. “The Power of Self-Identity: British Neutrality and the American Civil War,” in Ontological Security in International Relations: Self-Identity and the IR State, 76-93. New York: Routledge, 2008.